Judgment No. 4823
Decision
The complaint is dismissed.
Summary
The complainant challenges the decision not to grant him a contract of indefinite duration.
Judgment keywords
Keywords
conversion of contract; complaint dismissed
Considerations 5-6 and 9
Extract:
Article VII, paragraph 1, of the Statute of the Tribunal indicates the following concerning the irreceivability of a complaint in a situation where the impugned decision is not a final decision, or the staff member concerned has not exhausted the internal means of redress available to her or him:
“A complaint shall not be receivable unless the decision impugned is a final decision and the person concerned has exhausted such other means of redress as are open to her or him under the applicable Staff Regulations.”
It is desirable to recall that, in Judgment 4742, consideration 6, the Tribunal wrote the following on the necessity to abide by the time limits set forth for internal appeals and on the consequences of not doing so:
“The Tribunal has repeatedly emphasised the importance of the strict observance of applicable time limits when challenging an administrative decision. In Judgment 4673, consideration 12, it pointed out that a complaint will not be receivable if the underlying internal appeal was not filed within the applicable time limits (see also, in this regard, Judgment 4426, consideration 9, and Judgment 3758, considerations 10 and 11). According to the Tribunal’s firm precedent based on the provisions of Article VII, paragraph 1, of its Statute, the fact that an appeal lodged by a complainant was out of time renders her or his complaint irreceivable for failure to exhaust the internal means of redress available to staff members of the organisation, which cannot be deemed to have been exhausted unless recourse has been had to them in compliance with the formal requirements and within the prescribed time limit (see Judgments 4655, consideration 20, and 4517, consideration 7).”
In the same vein, the Tribunal has recalled many times the reasons why it is important to strictly observe applicable time limits when challenging an administrative decision. For instance, in Judgment 4673, considerations 12 and 13, the Tribunal held as follows:
“12. The Tribunal has repeatedly emphasised the importance of the strict observance of applicable time limits when challenging an administrative decision. In Judgment 4103, consideration 1, the Tribunal stated the following in this regard:
‘The complaint is irreceivable as the complainant failed to exhaust all internal means of redress in accordance with Article VII, paragraph 1, of the Tribunal’s Statute. The complainant’s grievance was time-barred when he submitted it [...] on 23 December 2014. Under Article VII, paragraph 1, of the Tribunal’s Statute, a complaint will not be receivable unless the impugned decision is a final decision and the complainant has exhausted all the internal means of redress. This means that a complaint will not be receivable if the underlying internal appeal was not filed within the applicable time limits. As the Tribunal has consistently stated, the strict adherence to time limits is essential to have finality and certainty in relation to the legal effect of decisions. When an applicable time limit to challenge a decision has passed, the organisation is entitled to proceed on the basis that the decision is fully and legally effective (see Judgment 3758, [considerations] 10 and 11, and the case law cited therein).’
(See also Judgment 4426, consideration 9, in this regard.)
13. As the Tribunal also recalled in Judgment 4184, consideration 4, the time limits for internal appeal procedures and the time limits in the Tribunal’s Statute serve the important purposes of ensuring that disputes are dealt with in a timely way and that the rights of parties are known to be settled at a particular point of time (see also, to the same effect, Judgment 3704, considerations 2 and 3). The rationale for this principle is that time limits are an objective matter of fact and strict adherence to them is necessary to ensure the stability of the parties’ legal relations.””
[…] The clear and unambiguous terms of the 29 January 2020 decision indicate that this was a final decision. The Indefinite Appointment Advisory Board (IAAB) recommendation of 20 December 2019 that preceded this final decision confirms it also in unambiguous terms. Moreover, this is precisely how the complainant himself understood the situation; the 18 March 2021 letter of the Director General simply confirmed that this was indeed the situation, and it therefore cannot be considered as a new decision.
Reference(s)
ILOAT Judgment(s): 3704, 3758, 3758, 4103, 4184, 4426, 4517, 4655, 4673, 4742
Keywords
receivability of the complaint; time limit; final decision
Consideration 18
Extract:
In Judgment 3870, consideration 4, the Tribunal recalled that “for a decision, taken after an initial decision has been made, to be considered as a new decision (setting off new time limits for the submission of an internal appeal) and not a purely confirmatory decision, the following conditions are to be met: the new decision must alter the previous decision and not be identical in substance, or at least must provide further justification, and it must relate to different issues from the previous one or be based on new grounds (see Judgments 660, 2011, [consideration] 18, and 3735, [consideration] 4).
Reference(s)
ILOAT Judgment(s): 660, 2011, 3735, 3870
Keywords
confirmatory decision
Consideration 23
Extract:
As the Tribunal recalled in Judgment 4741, consideration 13, “officials are expected to know their rights and the rules and regulations to which they are subject, and ignorance or misunderstanding of the law is no excuse (see, in this regard, Judgments 4673, consideration 16, 4573, consideration 4, 4324, consideration 11, and 4032, consideration 6)”.
Reference(s)
ILOAT Judgment(s): 4032, 4324, 4573, 4673, 4741
Keywords
duty to know the rules
Consideration 29
Extract:
The only time the complainant, and only indirectly, alluded to this “failure to abide by its obligation to actively contribute to an effort towards finding another position within ESO” was in his rejoinder. But this claim was never made or raised before by the complainant, and the latter could not add a new claim of this nature in the context or at the stage of his rejoinder (see, for example, Judgment 4761, consideration 10, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 4761
Keywords
new claim; rejoinder
Consideration 30
Extract:
[W]hile the complainant alleges having suffered a moral injury because of the breach by the Organisation of its duty of care, he provides no support of any nature whatsoever to justify the existence of his prejudice. The Tribunal’s case law relevantly states that a complainant seeking compensation for moral damages must provide clear evidence of the alleged unlawful act, of the injury suffered and of the causal link between the unlawful act and the injury, and that she or he bears the burden of proof in this regard (see, for example, Judgments 4556, consideration 12, 4158, consideration 4, 4157, consideration 7, 4156, consideration 5, and 3778, consideration 4). In Judgment 4801, consideration 7, the Tribunal recalled that specification of the moral injury caused by the unlawful act at issue and evidence supporting its existence preconditioned any award of moral damages. In a situation where, like here, a complainant merely refers to broad statements that remain unsubstantiated, compensation for alleged moral injury cannot be granted by the Tribunal.
Reference(s)
ILOAT Judgment(s): 3778, 4156, 4157, 4158, 4556, 4801
Keywords
moral injury; burden of proof
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