Judgment No. 4079
Decision
1. The UPU’s application for interpretation and review is dismissed.
2. The UPU shall pay the complainant 5 per cent interest in accordance with consideration 23 of the judgment.
3. The UPU shall pay the complainant 15,000 Swiss francs in moral damages.
4. The UPU shall also pay her 7,000 Swiss francs in costs.
5. All other claims and counterclaims are dismissed.
Summary
The UPU filed an application for interpretation and review of Judgment 3930 and the complainant in that case filed an application for execution of that judgment.
Judgment keywords
Keywords
application for execution; application for interpretation; application for review; complaint allowed; permanent appointment; abolition of post; termination of employment; application filed by the organisation
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).
Reference(s)
Jugement(s) TAOIT: 3984
Keywords
application for interpretation; receivability of application
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)
Jugement(s) TAOIT: 3001, 3452, 3473, 3634, 3719, 3897
Keywords
application for review; res judicata
Consideration 14
Extract:
It must be noted that Article II 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)
Jugement(s) TAOIT: 580
Keywords
receivability of the complaint; final decision; ratione materiae; administrative decision
Consideration 17
Extract:
In its pleas the UPU submits that “the UPU must stress that the [Tribunal]’s decision clearly falls 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, which may lead to significant 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
threat
Consideration 22
Extract:
The Tribunal recalls that an application for review does not suspend the execution of the judgment (see Judgment 1620, consideration 7).
Reference(s)
Jugement(s) TAOIT: 1620
Keywords
application for review; judgment of the tribunal; execution of judgment; suspension of the execution of a judgment
Consideration 24
Extract:
The delay in fully executing Judgment 3930 has caused the complainant moral injury. In awarding moral damages, the Tribunal takes into particular account the following: the duration of the delay, the fact that there was no need to seek a decision from the Council of Administration to authorize the execution of a judgment of the Tribunal, particularly when the budget was already approved for payments of awards, and the misleading presentation made by the International Bureau (in the presentation to the Council of Administration debating whether or not to execute the judgment) that the complainant’s illness was feigned. The International Bureau acted without presenting any evidence from a medical board and without having completed a disciplinary proceeding with regard to that unproven allegation, in violation of its duty of care and in breach of the adversarial principle. The UPU must respect the dignity of its staff members and preserve their reputation.
Reference(s)
Jugement(s) TAOIT: 3930
Keywords
moral injury; execution of judgment; respect for dignity; duty of care; delay in payment
Consideration 25
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).
Keywords
competence of tribunal; apology
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