Internal remedies exhausted (88, 89, 656, 743,-666)
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Keywords: Internal remedies exhausted
Total judgments found: 313
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Judgment 2892
108th Session, 2010
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 29
Extract:
"[T]he claim [...] that the performance appraisal made by the Secretary-General "be quashed and removed from his personal file" is receivable. It is not clear whether any performance appraisal report has been placed in the complainant's file. But it is clear that the relevant performance appraisal procedures were never completed. In these circumstances, it will be ordered that any performance appraisal report for the year 2006 that has been placed in his file be removed from it."
Keywords:
direct appeal to tribunal; internal remedies exhausted; status of complainant;
Considerations 6-8
Extract:
"The ITU argues that the [...] complaint with respect to the complainant's dismissal is [...] irreceivable on the basis that, as he has not pursued his internal appeal following his request [...] for a final review of the decision to dismiss him [...]. [T]he question remains whether the Staff Regulations and Staff Rules permit an internal appeal once a person has ceased to be a staff member. If they do not, the steps taken by the complainant to initiate an internal appeal were ineffective. More to the point, there were no internal remedies that he could pursue before lodging his complaint."
"Chapter XI of the ITU Staff Regulations and Staff Rules makes provision for appeals by staff members. [...] There is nothing in Chapter XI of the Staff Regulations and Staff Rules to indicate that a former staff member may lodge an appeal as therein provided. [...] In these circumstances, the term "staff member" in Chapter XI is to be construed as restricted to a serving staff member."
"In Judgment 2840, also a case where the relevant regulations and rules relating to internal appeals referred only to a "staff member" and not a "former staff member", it was held that "where a decision has not been communicated until after a staff member has separated from service, the former staff member does not have recourse to the internal appeal process". The same is true of a staff member who has either been summarily dismissed or dismissed with such short notice that it is impracticable to commence internal appeal proceedings before the dismissal takes effect."
Reference(s)
ILOAT Judgment(s): 2582, 2840
Keywords:
definition; direct appeal to tribunal; internal remedies exhausted; official; receivability of the complaint; staff regulations and rules; status of complainant; vexatious complaint;
Judgment 2866
108th Session, 2010
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 4 and 5
Extract:
The complainant challenged the Organisation's decision not to grant her the expatriation allowance provided for in Article 72 (1) of the Service Regulations. The Tribunal held that she had failed to adduce cogent evidence that she fulfilled the requirements for the granting of the said allowance.
"The EPO argues that although it was outside the time contemplated in Article 109(2) of the Service Regulations, a decision on the complainant's appeal was taken by the President and the appeal was forwarded to the Internal Appeals Committee prior to the complaint being filed. Accordingly, there was no longer an implicit rejection of the complainant's appeal and Article VII, paragraph 3, of the Tribunal's Statute does not apply. In its view, as the Tribunal held in Judgment 533, under 5, the complaint is irreceivable on the grounds that the internal means of redress have not been exhausted."
"The EPO's reliance on Judgment 533 is misplaced. In the present case, by the EPO's own admission the decision was not taken within the time provided in Article 109(2) of the Service Regulations. As the Tribunal stated in Judgment 2562, under 6:
"The EPO cannot be heard to argue that the complainant has failed to exhaust internal means of redress when the sole reason for his failing to do so was the EPO's own failure to abide by its own Service Regulations and to follow the timelines under Article 109(2). [...]"
Accordingly, the complaint is receivable."
Reference(s)
ILOAT reference: Article VII, paragraph 3, of the Statute
Organization rules reference: Article 109(2) of the Service Regulations
ILOAT Judgment(s): 533, 2562
Keywords:
administrative delay; direct appeal to tribunal; implied decision; internal appeal; internal appeals body; internal remedies exhausted; reasonable time; receivability of the complaint; time bar; time limit;
Judgment 2853
107th Session, 2009
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 6-8
Extract:
The difference as to the complainant's performance rating was not resolved in internal grievance proceedings and the complainant filed an internal appeal. Having received no response, the complainant sent an e-mail to the Registry of the Tribunal, stating that he wished to file a complaint.
"It is fundamental that a litigant cannot pursue the same claim before different adjudicative bodies at the same time. Normally, the litigant will be forced to elect the forum in which he or she intends to proceed. That did not happen in the present case. Nonetheless, the complainant pursued his internal appeal to finality and, thus, must be taken to have elected to pursue internal remedies rather than to proceed at that stage before the Tribunal on the basis of an implied rejection of his internal appeal. However, that does not mean that the complaint is irreceivable."
"[When] the complainant [decided] to pursue internal remedies [...], [his] complaint had already been filed and it was receivable pursuant to Article VII, paragraph 3, of the Statute. Moreover, he then had a cause of action, as his claim was not satisfied until 13 December 2007."
"Even though the complaint became without object on 13 December 2007, it was receivable when filed and the complainant then had a cause of action. Accordingly, he is entitled, in these circumstances, to the costs associated with its filing, even though not requested in the complaint. However, he is not entitled to costs in respect of subsequent pleadings which were filed after his decision to pursue his internal appeal. There will be an award of costs in the amount of 500 Swiss francs, but the complaint must otherwise be dismissed."
Keywords:
absence of final decision; costs; direct appeal to tribunal; duplication of proceedings; implied decision; internal appeal; internal remedies exhausted; receivability of the complaint;
Judgment 2825
107th Session, 2009
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"Because the letter [...] must be construed as meaning that a final decision would only be taken on the complainant's internal appeal after receipt of the opinion of the Internal Appeals Committee, it did not convey a final decision. As Article VII, paragraph 1, of the Tribunal's Statute allows only for complaints with respect to final decisions, the complaint is irreceivable. The matter must proceed before the Internal Appeals Committee."
Reference(s)
ILOAT reference: Article VII of the Statute
Keywords:
complaint; decision; internal appeal; internal appeals body; internal remedies exhausted; receivability of the complaint;
Judgment 2811
106th Session, 2009
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 10-11
Extract:
"In an attempt to show that her complaint is receivable the complainant submits that, in this case, an appeal to the Board of Appeal or Grievance Panel would not have served any practical purpose [...].
The Tribunal will not accept this line of argument, since to do so would be tantamount to allowing a staff member, on his or her own initiative, to evade the requirement that internal means of redress must be exhausted before a complaint is filed.
Apart from the fact that this solution would conflict directly with the terms of Article VII, paragraph 1, of the Statute of the Tribunal, it would belie the actual point of making internal appeals obligatory, which is what justifies this provision. However, as the Tribunal has already emphasised, [...] the purpose of the requirement that internal means of redress be exhausted is not only to ensure that staff members do actually avail themselves of any opportunities they may have within an organisation for obtaining redress before filing a complaint with the Tribunal, but also to enable the Tribunal, in the event that a staff member lodges a complaint, to have at its disposal a file supplemented by information from the records of the internal appeal procedure."
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 1141
Keywords:
complaint; direct appeal to tribunal; internal appeal; internal appeals body; internal remedies exhausted; receivability of the complaint;
Consideration 13
Extract:
The WHO argues that the complaint is irreceivable because the complainant failed to exhaust internal means of redress. The complainant submits that, in this case, an appeal would not have served any practical purpose. Relying on various Tribunal judgments where complainants were deemed to have exhausted internal means of redress when it transpired that the latter would be inconclusive, she contends that she was likewise in a situation where she was entitled to turn directly to the Tribunal.
"The complainant is mistaken in believing that she may be deemed in this case to have exhausted internal means of redress. The precedents to which she refers [...] refer to cases where, owing to the excessive length of the internal appeal proceedings, or the organisation's wrongful attempts to impede the examination of such an appeal, the requirement that internal means of redress must be exhausted would have paralysed the complainant's exercise of his or her right to have access to the Tribunal. However, as a general rule, and according to the same line of precedent, this departure from the application of Article VII, paragraph 1, of the Statute of the Tribunal will be accepted only where complainants have done all that could reasonably be expected of them to have their internal appeal effectively examined, so that they cannot be said to be in any way responsible for a failure to exhaust the internal means of redress available within an organisation. But, this is not the case here where, on the contrary, the complainant quite simply refrained from filing such an appeal and therefore took it upon herself not to comply with this precondition for filing a complaint with the Tribunal."
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 1376, 1829, 1968, 2039
Keywords:
complaint; delay; direct appeal to tribunal; internal appeal; internal remedies exhausted; reasonable time; receivability of the complaint;
Consideration 11
Extract:
The WHO argues that the complaint is irreceivable because the complainant failed to challenge the Director-General's decision before the Headquarters Board of Appeal. The complainant submits that, in this case, an appeal would not have served any practical purpose. She contends that, bearing in mind the purely advisory nature of this body, the Director-General could have confirmed her initial decision, no matter what recommendation was made to her.
"The fact that the recommendations of the Board of Appeal are not binding on the decision-making authority does not mean that they have no weight in the internal appeals procedure, since the Director-General has a legal duty to give such recommendations due consideration and, according to the Tribunal's case law, can lawfully depart from them only for clear and cogent reasons."
Keywords:
complaint; duty to substantiate decision; executive body; internal appeal; internal appeals body; internal remedies exhausted; receivability of the complaint;
Consideration 12
Extract:
WHO argues that the complaint is irreceivable because the complainant failed to exhaust internal means of redress. The complainant submits that, in this case, an appeal would not have served any practical purpose. She contends that her internal appeal could not be examined with due objectiveness and impartiality and she indicates that the Tribunal found in Judgment 2642 that the WHO Headquarters Grievance Panel had displayed serious shortcomings.
"Although the complainant indicates that the Tribunal found in Judgment 2642, delivered on 11 July 2007, that the WHO Headquarters Grievance Panel had displayed serious shortcomings, this judgment should not be construed as general criticism of the way such panels operate."
Keywords:
case law; complaint; internal appeal; internal appeals body; internal remedies exhausted; receivability of the complaint;
Judgment 2796
106th Session, 2009
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
The complainant asks that the defendant provide him with a positive work reference and that information concerning the issues raised in his complaint be given to some delegates.
"None of these matters was the subject of his internal appeals. Accordingly, those claims are irreceivable (see Judgments 899, 1263, 1443 and 2213). Further and save in exceptional cases where an international organisation has a continuing duty to undo damage caused by its own communications to a third party, as in Judgment 2720, the Tribunal is not competent to issue orders of the kind sought (see Judgments 126, 1591 and 2058)."
Reference(s)
ILOAT Judgment(s): 126, 899, 1263, 1443, 1591, 2058, 2213, 2720
Keywords:
claim; communication to third party; compensation; competence of tribunal; exception; injury; internal appeal; internal remedies exhausted; new claim; organisation's duties; receivability of the complaint;
Judgment 2780
106th Session, 2009
World Customs Organization (Customs Co-operation Council)
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"With regard to the application of Article VII, paragraph 3, of the Statute of the Tribunal, the Tribunal's case law indicates that this provision must be interpreted in the light of Article VII, paragraph 1, which stipulates that a complaint shall not be receivable unless the internal means of redress provided by the applicable Staff Regulations have been exhausted. Hence, where an organisation takes any decision "upon any claim of an official" - in the meaning of Article VII, paragraph 3 - within the sixty-day period thus stipulated, and particularly where it forwards the request to the competent advisory appeal body before the expiry of that period, this step forestalls an implied rejection which could be referred to the Tribunal."
Reference(s)
ILOAT reference: Article VII, paragraphs 1 and 3, of the Statute
Keywords:
case law; complaint; decision; iloat statute; implied decision; internal appeals body; internal remedies exhausted; receivability of the complaint; staff regulations and rules; time limit;
Judgment 2740
105th Session, 2008
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"The letter of 29 August 2006 must be deemed to constitute an explicit decision to refuse to rule on the request submitted by the complainant [...]. Such a decision may be brought before the Tribunal only after the means of redress open to the complainant have been exhausted (Article VII, paragraph 1, of the Tribunal's Statute)." The complainant did not exhaust all internal means of redress. "Consequently, the complaint would, in the normal course of events, be irreceivable. [...] In the present case, however, such an approach would result in a grave miscarriage of justice. Indeed, in view of the content of the letter of 29 August 2006, by which UNESCO notified the complainant of its refusal to take a decision, the complainant had good grounds to consider that any internal appeal would have proved a hollow and meaningless formality. [...] The complainant was therefore entitled to have direct recourse to the Tribunal, after rightly concluding that the letter of 29 August 2006 contained an implicit waiver of the requirement that she first exhaust internal means of redress. It follows that the complaint cannot be declared irreceivable under Article VII, paragraph 1, of the Tribunal's Statute."
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
Keywords:
condition; decision; direct appeal to tribunal; express decision; iloat statute; implied decision; internal appeal; internal remedies exhausted; receivability of the complaint; refusal; request by a party;
Judgment 2631
103rd Session, 2007
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
"Under Article VII(3) of the Statute of the Tribunal, an official may have direct recourse to the Tribunal where the Administration fails to take a decision on any claim “within sixty days from the notification of the claim to it”. Only a person who has done all that is legally possible to secure a final decision within a reasonable time, but to no avail, is entitled to file a complaint against an implicit rejection (see, inter alia, Judgments 1344, under 11, and 1718, under 3).
Article VII(3) of the Tribunal's Statute must be read in conjunction with Article VII(1), which establishes the obligation to exhaust internal means of redress before filing a complaint with the Tribunal. It follows that a complaint against an implicit decision to reject a claim is not receivable unless the complainant has exhausted all available internal remedies. The Tribunal cannot therefore hear such a complaint unless the implicit rejection may be inferred from the silence of the final authority competent to rule on the dispute between the official and the Administration (see Judgment 185)."
Reference(s)
ILOAT reference: Article VII, paragraphs 1 and 3, of the Statute
ILOAT Judgment(s): 185
Keywords:
absence of final decision; complaint; condition; direct appeal to tribunal; failure to answer claim; iloat statute; implied decision; internal remedies exhausted; procedure before the tribunal; receivability of the complaint; refusal; staff member's duties;
Judgment 2567
101st Session, 2006
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"[I]t must be recalled that according to Article VII, paragraph 1, of the Statute of the Tribunal '[a] complaint shall not be receivable unless the decision impugned is a final decision and the person concerned has exhausted such other means of resisting it as are open to him under the applicable Staff Regulations'. The Tribunal will on its own motion examine whether this condition of receivability is met (see Judgments 60, 1082 and 1095).
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 60, 1082, 1095
Keywords:
application of law ex officio; complaint; condition; decision; iloat; iloat statute; internal remedies exhausted; provision; receivability of the complaint; staff member's duties; staff regulations and rules;
Judgment 2562
101st Session, 2006
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 5-6
Extract:
The Organisation submits that the complaints are irreceivable because the internal appeals, although timely filed with the President of the Office, had not yet been considered by the Appeals Committee at the time when the complaints were filed. "The EPO cannot be heard to argue that the complainant has failed to exhaust internal means of redress when the sole reason for his failing to do so was the EPO's own failure to abide by its own Service Regulations and to follow the timelines under Article 109(2). [...] The complaints are [therefore] receivable."
Reference(s)
Organization rules reference: Article 109(2) of EPO Service Regulations
Keywords:
absence of final decision; breach; complaint; date; executive head; grounds; internal appeal; internal appeals body; internal remedies exhausted; patere legem; provision; receivability of the complaint; staff regulations and rules; time limit;
Judgment 2461
99th Session, 2005
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 1-3
Extract:
ESO considers that the complainant's internal appeal is not receivable according to Article R VI 1.02 of the Staff Regulations since he is no longer a staff member.
"The organisation is correct. The Staff Regulations do not give him any right of internal appeal. [...] The complainant alleges a contradiction between ESO's Staff Rules and Regulations [...] and Article VII(1) and (2) of the Tribunal's Statute. In fact, the language of the Tribunal's Statute does not specifically require the organisation to provide specific internal remedies, it only requires that those actually existing be exhausted."
Reference(s)
ILOAT reference: Article VII(1) and (2) of the Statute
Organization rules reference: Article R VI 1.02 of ESO's Staff Regulations
Keywords:
iloat statute; internal appeal; internal remedies exhausted; official; organisation; organisation's duties; provision; receivability of the complaint; right; separation from service; staff regulations and rules; status of complainant;
Judgment 2457
99th Session, 2005
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"The Organisation contends that the claims for damages are irreceivable because they were put forward in this specific manner for the first time in the complaint. However, it appears from the submissions that the request concerning damages had in fact been made in the course of the internal appeal procedure, albeit only orally and in general terms. [...] The Tribunal therefore considers that, in accordance with the case law (see in particular Judgment 2360), the claims for damages are receivable."
Reference(s)
ILOAT Judgment(s): 2360
Keywords:
appraisal of evidence; breach; case law; claim; complaint; evidence; formal requirements; internal appeal; internal remedies exhausted; material damages; moral injury; new claim; procedure before the tribunal; receivability of the complaint; request by a party;
Judgment 2440
99th Session, 2005
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
If a staff member withdraws some of his/her claims during the internal appeal procedure, he/she cannot raise them before the Tribunal.
Keywords:
claim; complaint; internal appeal; internal remedies exhausted; procedure before the tribunal; tribunal;
Judgment 2416
98th Session, 2005
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 8 and 11
Extract:
"The EPO's position is that because the claim for damages was made as an oral submission during the [Appeals] Committee hearings [...], rather than being included in the complainant's original written submissions, it was not actually part of the internal appeal and therefore cannot now be claimed before the Tribunal. [...]
The objection to receivability is misconceived. The Appeals Committee accepted that the complainant could make a claim for damages and heard both parties on the question. The reason that the Tribunal insists that any claim made before it must first have been asserted in the internal appeal process is that Article VII(1) of its Statute demands that the complainant first exhaust any available internal means of redress. The EPO has not shown that there is any equivalent provision relating to internal appeals, and it is desirable that such appeals should be as unencumbered as possible by procedural obstacles provided that elementary fairness is observed."
Reference(s)
ILOAT reference: Article VII(1) of the Statute
Keywords:
adversarial proceedings; claim; equity; general principle; iloat statute; internal appeal; internal appeals body; internal remedies exhausted; moral injury; new claim; oral proceedings; receivability of the complaint;
Judgment 2394
98th Session, 2005
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"Since he partially succeeds, the complainant is entitled to costs, which he may claim directly before the Tribunal, contrary to the defendant's plea".
Keywords:
claim; complainant; costs; exception; internal remedies exhausted; receivability of the complaint; right;
Judgment 2364
97th Session, 2004
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
"Even though it is only the 'decision' of 10 March 2002 which he wishes to have set aside, the complainant refers to facts which arose after that date and adds in his rejoinder that, since the final decision was dated 23 July 2002, 'all grievances raised until that date can validly be taken into account' as part of his complaint. [...] With regard to the claims based on facts subsequent to 10 March 2002 and presented as grounds for appeal, since internal remedies were not exhausted (Article VII(1) of the Statute of the Tribunal), they must be deemed irreceivable. [...] Furthermore, the validity of a decision or measure cannot be judged on the basis of facts occurring subsequently to that decision or measure."
Reference(s)
ILOAT reference: Article VII(1) of the Statute
Keywords:
claim; complaint; date; grounds; iloat statute; internal remedies exhausted; new claim; receivability of the complaint; rejoinder; subsequent fact;
Judgment 2360
97th Session, 2004
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
The Organization considers that the claims for compensation for certain heads of injury were not submitted during the internal appeal proceedings and must therefore be dismissed as irreceivable. "[T]he claims to compensation for moral injury and for breach of the complainant's rights were put forward in the internal appeal, though in a different form, and are certainly receivable, even though some heads of injury, concerning the complainant's state of health in particular, had not been enlarged upon, since the complainant had stated in his appeal [...] that the decision he contested caused him 'undoubted material and moral injury'."
Keywords:
breach; claim; compensation; decision; difference; formal requirements; injury; internal appeal; internal remedies exhausted; material injury; moral injury; procedure before the tribunal; receivability of the complaint; right;
Judgment 2223
95th Session, 2003
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"The fact that the Director-General [did not initiate] the appeal procedure invalidates the defendant's argument that internal remedies were not exhausted, although they should have been as required by article vii of the Tribunal's Statute. While it is regrettable that the case was never brought before the Joint Advisory Appeals Board, this does not prevent the Tribunal from ruling on the merits of the complaint, which has been filed within the applicable rules."
Reference(s)
ILOAT reference: ARTICLE VII OF THE STATUTE
Keywords:
competence of tribunal; consequence; executive head; formal requirements; good faith; iloat statute; internal appeal; internal appeals body; internal remedies exhausted; organisation; organisation's duties; procedure before the tribunal; receivability of the complaint; refusal; staff member's duties;
Judgment 2213
95th Session, 2003
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
The financial claims the complainant submits in his application for review are greater than those he put forward in the proceedings of the judgment he wants to have reviewed. "To that extent, they are [...] irreceivable on the grounds that internal remedies have not been exhausted."
Keywords:
allowance; application for review; internal remedies exhausted; new claim; receivability of the complaint;
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