Judgment No. 4077
Decision
1. The UPU’s application for interpretation and review is dismissed.
2. If the complainant is not reinstated with all legal consequences, as required by the orders made in Judgment 3928, within one month of the date of the public delivery of the present judgment, the UPU shall pay him 10,000 Swiss francs for each month of delay thereafter.
3. The UPU shall pay the complainant 25,000 Swiss francs in moral damages.
4. The UPU shall also pay the complainant 7,000 Swiss francs in costs.
5. All other claims and counterclaims are dismissed.
Summary
The UPU applies for interpretation and review of Judgment 3928 alleging errors of fact, inter alia, and asserts that it is impossible to give effect to the Tribunal’s order to reinstate the complainant. The complainant applies for execution of Judgment 3928.
Judgment keywords
Keywords
application for execution; application for interpretation; application for review; complaint allowed; reinstatement; abolition of post; application filed by the organisation
Consideration 6
Extract:
The UPU submits that the transcripts of the April 2018 meetings of the Council of Administration annexed to the complainant’s submissions are irreceivable as they are not official transcripts. It asserts that these transcripts were made by the complainant, and that the Summary Record provided by the Secretary General of the Council of Administration, which was not prepared in transcript format, is the only official record of the meetings of the Council of Administration. The Tribunal acknowledges that the contested annexes are unofficial documents but observes that although the UPU states that these documents were not “confirmed or verified”, it does not contest specifically any part of them.
Keywords
evidence
Consideration 8
Extract:
As the two applications concern the same judgment, the Tribunal finds it convenient to join them in order to render one judgment.
Keywords
joinder
Consideration 8
Extract:
The Tribunal finds the written submissions to be sufficient to reach a reasoned decision and therefore denies the complainant’s request for oral hearings.
Keywords
oral proceedings
Consideration 9
Extract:
According to the Tribunal’s case law, ordinarily an application for interpretation can only concern the decision in a judgment and not the grounds therefor (see, for example, Judgment 3984, consideration 10, and the case law cited therein). The application for interpretation is, on the face of the record, irreceivable as it does not put in issue the terms of the orders made in the decision in Judgment 3928.
Reference(s)
ILOAT Judgment(s): 3928, 3984
Keywords
application for interpretation
Consideration 10
Extract:
[I]t is well settled that the Tribunal’s judgments are final and carry the authority of res judicata. They may be reviewed only in exceptional circumstances and on strictly limited grounds. The only admissible grounds therefor are failure to take account of material facts, a material error (in other words, a mistaken finding of fact involving no exercise of judgement, which thus differs from misinterpretation of the facts), an omission to rule on a claim, or the discovery of new facts on which the complainant was unable to rely in the original proceedings. Moreover, these pleas must be likely to have a bearing on the outcome of the case. On the other hand, pleas of a mistake of law, failure to admit evidence, misinterpretation of the facts or omission to rule on a plea afford no grounds for review (see, for example, Judgments 3001, consideration 2, 3452, consideration 2, 3473, consideration 3, 3634, consideration 4, 3719, consideration 4, and 3897, consideration 3).
Reference(s)
ILOAT Judgment(s): 3001, 3452, 3473, 3634, 3719, 3897
Keywords
application for review; res judicata
Consideration 11
Extract:
The application for review is also irreceivable, as the UPU does not raise any of the admissible grounds for review set out above.
Keywords
application for review
Consideration 14
Extract:
It must be noted that Article II [of the Tribunal’s Statute] does not specify which organ of the organization must take a challengeable administrative decision and, therefore, introducing any such limitation based on the internal rules of an international organization is incompatible with the Tribunal’s Statute. It is also worth noting that in consideration 2 of Judgment 580, delivered in public on 20 December 1983, the Tribunal stated the following:
“Who took the decision is not a question on which the Tribunal’s competence, as defined in Article II(1) of its Statute, depends. The article merely says that the Tribunal may hear complaints alleging non-observance of the terms of appointment of officials and of provisions of the Staff Regulations. An appeal may therefore lie to the Tribunal against a decision by any authority which a complainant accuses of having infringed the terms of his appointment or the provisions of the Staff Regulations. The decision challenged in this case is just such a decision since the complainant is alleging that the Governing Body acted in breach of a rule he infers from Article 11.3 of the Staff Regulations.
There is therefore no need to consider whether the Tribunal is competent to review measures which the Governing Body takes in the exercise of its rule-making authority.”
Reference(s)
ILOAT reference: Article II of the Statute
ILOAT Judgment(s): 580
Keywords
receivability of the complaint; final decision; ratione materiae
Consideration 17
Extract:
In its pleas the UPU submits that “the UPU must stress that the [Tribunal] has made a decision which clearly sits outside its purview and seeks to call into question the mandate and authority of the [Council of Administration] as the sovereign governing body of the UPU between Congresses. If upheld, the Administration will have no choice but to take the matter to that governing body, as the [Director General] is in no way authorized to rescind [Council of Administration] decisions. Such an outcome might even lead to significant political implications of a wider character, including a review by UPU member countries of remedial mechanisms available to staff members for impugning decisions of the [Director General]” (emphasis added). This is a subtle threat to the Tribunal but a threat nonetheless. As an independent judicial body, the Tribunal is constituted by judges who must act without fear or favour. Such a threat must be ignored. Also, the threat if acted upon would subvert the operation of the rule of law at an international level. That is because dissatisfaction with a judgment lawfully rendered by a judicial body should never ground the rejection of the jurisdiction of that body. This is unacceptable behaviour by an international organization. The disdain the organization shows for the orderly resolution of justiciable disputes subverts the very institutions established to resolve them and the framework within which they operate. That is even more so as the organization’s understanding of the judgment in question is misconceived.
Keywords
application for review; competence of tribunal; threat
Consideration 19
Extract:
With respect to the UPU’s request that the Tribunal rescind its decision with respect to the complainant’s reinstatement and award him material damages instead, there is no reviewable error that would allow the Tribunal to grant that request.
Keywords
application for review; reinstatement; material damages
Consideration 23
Extract:
The Tribunal recalls that an application for review does not suspend the execution of the judgment (see Judgment 1620, consideration 7).
Reference(s)
ILOAT Judgment(s): 1620
Keywords
application for execution; application for review; suspension of the execution of a judgment
Consideration 23
Extract:
[W]hen a decision to abolish a post is set aside by the Tribunal, there is no need for a new decision to recreate that post. Therefore, the UPU had only to make the administrative arrangements for reinstating the complainant with all the legal consequences that this entailed.
Keywords
reinstatement; abolition of post
Consideration 25
Extract:
The proper exercise by a staff member of her or his right to bring a complaint to the Tribunal should not be held against her or him or found criticism of her or his conduct.
Keywords
conduct
Consideration 25
Extract:
[T]he [organization] could not refer to the complainant’s alleged misconduct as a reason not to reinstate him as no disciplinary proceeding has occurred in that regard, so misconduct has never been proven. It is all the more grave when considering that the alleged reason for the abolition of the posts was because of financial constraints. The abolition of a post can never be based on a staff member’s conduct, as that would constitute a hidden sanction. The [organization]’s presentation before the Council of Administration constituted a breach of the duty of care and of the adversarial principle, as the complainant was not given any opportunity to defend himself and his reputation from the allegations. The UPU must respect the dignity of its staff and preserve their reputation.
Keywords
adversarial proceedings; due process; reinstatement; abolition of post; budgetary reasons; misconduct; hidden disciplinary measure; duty of care
Consideration 26
Extract:
The complainant seeks an apology from the organization by order of the Tribunal. This claim is rejected as such an order is outside the Tribunal’s competence (see, for example, Judgment 2742, consideration 44, or Judgment 3597, consideration 10).
Reference(s)
ILOAT Judgment(s): 2742, 3597
Keywords
apology
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