Exception (113,-666)
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Judgment 4820
138th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to dismiss his moral harassment complaints, and claims compensation for the injury which he considers he has suffered.
Considerations 6-7
Extract:
Insofar as the complaint is directed against the decision of the Director General to dismiss the complainant’s first complaint for moral harassment against Mr P.H. as unfounded, the Tribunal notes the following:
(a) Where the Administration takes any action to deal with a claim, by forwarding it to the competent internal appeal body for example, this step in itself constitutes a “decision upon the claim” within the meaning of Article VII, paragraph 3, of the Statute of the Tribunal, which forestalls an implied rejection that could be referred to the Tribunal (see, for example, Judgments 3715, consideration 4, 3428, consideration 18, and 3146, consideration 12).
(b) Under Article 92(2) of the Staff Regulations, the complainant should have filed a complaint before the Tribunal within 90 days from the expiry of the four-month time limit for the Administration to respond to his internal complaint, even if the matter had been referred to the Joint Committee for Disputes. The present complaint should therefore, in principle, be declared irreceivable as time-barred under Article VII, paragraph 2, of the Statute of the Tribunal, combined with Article 92(2) of the Staff Regulations.
(c) However, in this case, the Tribunal considers that the complainant was misled by the Organisation when it indicated to him that, since his internal complaint had been referred to the Joint Committee for Disputes, he had, in accordance with the Tribunal’s case law on the application of Article VII, paragraph 3, of its Statute, to await the final decision of the Director General before being able to file a complaint with the Tribunal. By so doing, the Organisation overlooked the fact that, pursuant to Article 92(2) of the Staff Regulations, failure by the Director General to respond to an internal complaint within four months from the date on which it was lodged shall be deemed to constitute an implied decision rejecting it, which may be impugned before the Tribunal. There is no need to declare the complaint irreceivable as time-barred, insofar as it is directed against an implied decision to reject from the Director General. To rule otherwise would amount to unduly depriving the complainant of his right to refer the matter to the Tribunal solely due to the conduct of the Organisation.
(d) The Tribunal observes that, while the complainant’s failure to comply with the 90-day time limit to file a complaint with the Tribunal is recognized above as admissible due to the fact that he was wrongly informed by the Organisation that he had to await an express decision, the complainant did not wait for this decision to be issued before filing his complaint. The complaint should therefore, in principle, be declared irreceivable for failure to exhaust internal means of redress, as required by Article VII, paragraph 1, of the Statute of the Tribunal. However, in this case, taking into account the period of one year and seven months that had elapsed between 5 June 2020, when the complainant filed his internal complaint, and 7 February 2022, when he filed his complaint with the Tribunal, and the fact that his counsel had followed up, to no avail, with the Director General, the Tribunal considers that the complainant was faced with a paralysis of the internal appeal procedure that would allow him to proceed directly to it. Under the Tribunal’s case law, a complainant is entitled to file a complaint directly with the Tribunal against the initial decision which she or he intends to challenge where the competent bodies are not able to determine the internal appeal within a reasonable time having regard to the circumstances, provided that she or he has done her or his utmost, to no avail, to accelerate the internal procedure and where the circumstances show that the appeal body was not able to reach a final decision within a reasonable time (see, for example, Judgments 4660, consideration 2, 4271, consideration 5, 4268, considerations 10 and 11, 4200, consideration 3, 3558, consideration 9, 2039, consideration 4, or 1486, consideration 11).
(e) In addition, the Tribunal notes that a final decision was ultimately taken by the Director General on 12 May 2022, as was the opinion of the Joint Committee for Disputes relating thereto, and that that decision was issued in the course of proceedings. Since the Tribunal has the complete dossier in its possession and the parties have had the opportunity to comment fully in their written submissions on the express decision to reject the complainant’s internal complaint of 5 June 2020, and thus on the decision to reject the first harassment complaint inasmuch as it was directed against Mr P.H., it considers that, in accordance with its case law, it is appropriate to treat the internal complaint as being directed against the latter decision of 12 May 2022 (see in particular, for similar cases, Judgments 4769, consideration 3, 4768, consideration 3, 4660, consideration 6, 4065, consideration 3, and 2786, consideration 3).
The present complaint is, accordingly, receivable insofar as it challenges the lawfulness of the Director General’s decision of 12 May 2022 to reject, as unfounded, the first moral harassment complaint directed against Mr P.H. It will therefore be examined from this standpoint by the Tribunal.
Reference(s)
ILOAT Judgment(s): 1486, 2039, 2786, 3146, 3428, 3558, 3715, 4065, 4200, 4268, 4271, 4660
Keywords:
absence of final decision; administrative delay; case law; delay; direct appeal to tribunal; exception; express decision; iloat statute; implied decision; impugned decision; internal appeal; internal remedies exhausted; judicial review; reasonable time; receivability of the complaint; staff member's duties; time limit;
Judgment 4781
137th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject her complaint of harassment and abuse of authority.
Consideration 3
Extract:
According to the Tribunal’s case law, respect for the adversarial principle and the right to be heard in the internal appeal procedure requires that the official concerned be afforded the opportunity to comment on all relevant issues relating to the contested decision (see, for example, Judgments 4697, consideration 11, 4662, consideration 11, 4408, consideration 4, and 2598, consideration 6). Accordingly, that official must have the opportunity, insofar as is compatible with the rules of receivability and procedure to which she or he is subject, to freely develop the arguments in support of her or his appeal.
[...]
A provision that gives an appeal body the ability to waive the time limits that normally apply confers on that body discretionary power to be used according to the circumstances of each case. However, in the event of a dispute on the matter, it is for the Tribunal to ensure that the appeal body has not exercised that power improperly (see, for example, Judgment 3267, considerations 3 and 4).
In the present case, the Tribunal considers that, given the very particular situation in which the complainant found herself at the material time, the Appeal Board was indeed presented with exceptional circumstances within the meaning of the aforementioned subparagraph (d), which warranted permission being given to the complainant to finalise her appeal outside the time limit, and that the Board was therefore acting improperly in refusing to give her that opportunity, attempting to justify this position by a reference to “normal practice and procedures”, from which it should therefore have departed.
Reference(s)
ILOAT Judgment(s): 2598, 3267, 4408, 4662, 4697
Keywords:
adversarial proceedings; exception; internal appeal; right to be heard; time limit;
Judgment 4678
136th Session, 2023
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decisions not to extend his fixed-term contract due to unsatisfactory performance and to withhold his within-grade salary increment.
Consideration 2
Extract:
In the ordinary course, sick leave is not an exceptional circumstance in and of itself. The complainant should have provided the JAB with a reasonable explanation as to why his sick leave prevented him from requesting a review in a timely manner, and he did not. In these circumstances, the internal appeal was properly considered irreceivable.
Keywords:
exception; late appeal; sick leave;
Judgment 4483
133rd Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the “social democracy” reform introduced by decision CA/D 2/14 insofar as it abolished the Local Advisory Committees.
Consideration 3
Extract:
The EPO raises, as a threshold issue, whether the complaint is receivable. It can do so notwithstanding that receivability was not raised in the internal appeal, a point relied upon by the complainant in arguing that it cannot be raised now. That is because the issue raised by the EPO is whether the requirements of Article II of the Statute of the Tribunal are met. Necessarily that issue can only arise when a complainant seeks to engage the Tribunal’s jurisdiction. It cannot arise at an earlier time and could not, in any meaningful way, be raised and determined in the internal appeal. In any event, the Tribunal can address the question of its own motion (Judgment 4317, considerations 2 and 3).
Reference(s)
ILOAT Judgment(s): 4317
Keywords:
estoppel; exception; new claim; receivability of the complaint;
Judgment 4426
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to retroactively promote her while she was on sick leave.
Consideration 10
Extract:
The case law recognizes that, in very limited circumstances, an exception may be made to the requirement of strict adherence to the relevant time limits. These include instances in which some new and unforeseeable fact of decisive importance has occurred since the decision was taken, or where the staff member concerned by that decision is relying on facts or evidence of decisive importance of which she or he was not and could not have been aware before the decision was taken (see, for example, Judgments 3903, consideration 6, and 4118, consideration 4).
Reference(s)
ILOAT Judgment(s): 3903, 4118
Keywords:
exception; internal remedies not exhausted; late appeal;
Judgment 4059
127th Session, 2019
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to affiliate her to the United Nations Joint Staff Pension Fund.
Consideration 2
Extract:
The complainant does not dispute the grounds on which the finding of irreceivability was made. However, she asks the Tribunal to consider her complaint as an “exceptional case”. The relevant case law of the Tribunal consistently states:
“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’ [...].”
(Judgment 3758, under 10; see also Judgment 3687, under 9, and the cases cited therein.)
In Judgment 3758, under 11, the Tribunal added:
“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 3439, under 4.)”
However, the case law also recognizes that there are exceptions to the requirement of the strict adherence to the applicable time limits. In Judgment 3687, under 10, the Tribunal stated:
“[I]n very limited circumstances an exception may be made to the rule of strict adherence to the relevant time limit. The circumstances identified in the case law are: ‘where the complainant has been prevented by vis major from learning of the impugned decision in good time or where the organisation, by misleading the complainant or concealing some paper from him or her so as to do him or her harm, has deprived that person of the possibility of exercising his or her right of appeal, in breach of the principle of good faith’ (see Judgment 3405, under 17; citations omitted); and ‘where some new and unforeseeable fact of decisive importance has occurred since the decision was taken, or where [the staff member concerned by that decision] is relying on facts or evidence of decisive importance of which he or she was not and could not have been aware before the decision was taken’ (see Judgment 3140, under 4; citations omitted).”
(See also Judgment 3758, under 12.)
Reference(s)
ILOAT Judgment(s): 3140, 3405, 3439, 3687, 3758
Keywords:
delay; exception; receivability of the complaint; time limit;
Judgment 3965
125th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contends that the EPO did not properly address or investigate his claim of harassment.
Consideration 9
Extract:
The President’s decision, communicated by the letter of 13 October 2009, was based on the Ombudsman’s comments, which did not comply with Article 11 of Circular No. 286, and the decision itself did not correspond to what Article 12 of the Circular required. Most importantly, the decision of 13 October 2009 did not clearly reject the complainant’s harassment complaint or determine any other course of action on it. The complainant was therefore not only deprived of his right to have his complaint dealt with in accordance with the applicable rules, but was also misled as to the possibilities of challenging a decision. Accordingly, the decision of 13 October 2009 must be set aside. As this decision was ambiguous and misleading, the filing of the internal appeal on 19 April 2010 comes within the scope of the exceptions that the Tribunal has established for accepting a late internal appeal (see, for example, Judgments 1466, consideration 5, 2722, consideration 3, and 3406, consideration 13). To the extent that the IAC’s majority opinion and the impugned decision of the President were based on the argument that the appeal was irreceivable, they are tainted with an error of law and the impugned decision of 14 February 2012 will therefore be set aside.
Reference(s)
ILOAT Judgment(s): 1466, 2722, 3406
Keywords:
exception; internal appeal; time bar; time limit;
Judgment 3947
125th Session, 2018
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to terminate his fixed-term contract.
Consideration 4
Extract:
Regarding Article VII, paragraph 1,[of the Tribunal's Statute] consistent principle has it that a complainant must comply with the time limits and the procedures, as set out in the organisation’s internal rules and regulations. The following was stated, for example, in Judgment 1653, consideration 6: “According to Article VII, paragraph 1, of the Tribunal’s Statute, 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’. So where the staff regulations lay down a procedure for internal appeal it must be duly followed: there must be compliance not only with the set time limits but also with any rules of procedure in the regulations or implementing rules.”
In the same vein, it was stated in Judgment 1469, consideration 16, that to satisfy the requirement in Article VII, paragraph 1, that internal means of redress must be exhausted, the complainant must not only follow the prescribed internal procedure for appeal, but she or he must follow it properly and in particular observe any time limit that may be set for the purpose of that procedure.
It has also been stated that a staff member of an international organisation cannot of her or his own initiative evade the requirement that internal remedies must be exhausted prior to lodging a complaint with the Tribunal. Accordingly, the following was relevantly stated in Judgment 3458, consideration 7: “It is firm case law that a staff member is not allowed on his or her own initiative to evade the requirement that internal means of redress must be exhausted before a complaint is filed before the Tribunal (see Judgments 3190, under 9, and 2811, under 10 and 11, and the case law cited therein).”
There are limited exceptions to the requirement in Article VII, paragraph 1. The following was relevantly stated in Judgment 3714, consideration 12:
“The Tribunal has established through its case law that exceptions to the requirement of Article VII, paragraph 1, of the Statute that internal remedies be exhausted will be made only in very limited circumstances, namely where staff regulations provide that the decision in question is not such as to be subject to the internal appeal procedure; where for specific reasons connected with the personal status of the complainant she or he does not have access to the internal appeal body; where there is an inordinate and inexcusable delay in the internal appeal procedure; or, lastly, where the parties have mutually agreed to forgo this requirement that internal means of redress must have been exhausted (see, in particular, Judgments 2912, consideration 6, 3397, consideration 1, and 3505, consideration 1). Moreover, the complainant bears the burden of proving that the above conditions are satisfied [...].”
Reference(s)
ILOAT Judgment(s): 1469, 1653, 3458, 3714
Keywords:
exception; internal remedies exhausted; receivability of the complaint; time limit;
Judgment 3945
125th Session, 2018
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her 2013 performance evaluation.
Consideration 5
Extract:
[T]he Tribunal’s case law states that a complainant may make a claim for consequential relief which was not made in the internal proceedings. Under that case law, claims for moral damages can be treated as consequential relief and thus are not subject to the requirement to exhaust internal remedies (see Judgment 3871, consideration 18). Regarding the claim for costs, the Tribunal has accepted that only a claim for costs with respect to the proceedings before the Tribunal may be receivable (see Judgment 3421, under 2(a)).
Reference(s)
ILOAT Judgment(s): 3421, 3871
Keywords:
costs; exception; internal remedies exhausted; moral injury;
Judgment 3903
125th Session, 2018
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the termination of his fixed-term appointment.
Considerations 6 and 17
Extract:
[I]n the circumstances as the complainant understood them to be, he did not request a review of the 16 June decision to terminate his appointment within the thirty-day time limit. Although the Tribunal has consistently stressed the requirement of strict adherence to the time limits with respect to the filing of an internal appeal, there are exceptions to this requirement. In Judgment 3687, consideration 10, the Tribunal stated: “The case law also recognizes that in very limited circumstances an exception may be made to the rule of strict adherence to the relevant time limit. The circumstances identified in the case law are: ‘where the complainant has been prevented by vis major from learning of the impugned decision in good time or where the organisation, by misleading the complainant or concealing some paper from him or her so as to do him or her harm, has deprived that person of the possibility of exercising his or her right of appeal, in breach of the principle of good faith’ (see Judgment 3405, under 17; citations omitted); and ‘where some new and unforeseeable fact of decisive importance has occurred since the decision was taken, or where [the staff member concerned by that decision] is relying on facts or evidence of decisive importance of which he or she was not and could not have been aware before the decision was taken’ (see Judgment 3140, under 4; citations omitted).”
[...]
The way in which the decision to terminate the complainant’s appointment was, in the letter, merged with the decision to abolish his position, the misleading content of the letter coupled with the vague and confusing language of the notification of the termination of the appointment was a breach of the ICC’s duty to act in good faith. In these circumstances, an exception to the rule of the strict adherence to the time limit for bringing an internal appeal challenging the decision provided for in Staff Rule 111.1(b) was correctly made by the Appeals Board. It follows that the complaint is receivable before the Tribunal.
Keywords:
exception; good faith; time limit;
Judgment 3892
124th Session, 2017
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contends that no final decision has yet been taken on her internal appeal.
Consideration 4
Extract:
According to firm precedent, a complaint filed directly with the Tribunal is irreceivable unless the complainant shows that the requirement to exhaust internal remedies has had the effect of paralysing the exercise of her or his rights. It is only then that she or he is permitted to come directly to the Tribunal where the competent bodies are not able to determine an internal appeal within a reasonable time, depending on the circumstances (see, for example, Judgment 3558, under 9).
Reference(s)
ILOAT Judgment(s): 3558
Keywords:
exception; failure to exhaust internal remedies; summary procedure;
Judgment 3758
123rd Session, 2017
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his non-selection for a post.
Consideration 12
Extract:
[T]here are exceptions to the requirement of strict adherence to time limits. As stated in Judgment 3687, under 10 and 11:
“10. The case law also recognizes that in very limited circumstances an exception may be made to the rule of strict adherence to the relevant time limit. The circumstances identified in the case law are: ‘where the complainant has been prevented by vis major from learning of the impugned decision in good time or where the organisation, by misleading the complainant or concealing some paper from him or her so as to do him or her harm, has deprived that person of the possibility of exercising his or her right of appeal, in breach of the principle of good faith’ (see Judgment 3405, under 17; citations omitted); and ‘where some new and unforeseeable fact of decisive importance has occurred since the decision was taken, or where [the staff member concerned by that decision] is relying on facts or evidence of decisive importance of which he or she was not and could not have been aware before the decision was taken’ (see Judgment 3140, under 4; citations omitted).
11. It must also be added that a later discovery after the expiry of the time limit for appealing the challenged decision of an irregularity that might have rendered the decision unlawful does not in principle have a bearing on the requisite adherence to the time limit (see, for example, Judgment 3405, under 16).”
Reference(s)
ILOAT Judgment(s): 3140, 3405, 3687
Keywords:
exception; time limit;
Judgment 3737
123rd Session, 2017
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant alleges that he was subjected to harassment.
Consideration 4
Extract:
[T]he ITU contends that the first complaint is irreceivable to the same extent on the grounds that the complainant, contrary to Article VII, paragraph 1, of the Statute of the Tribunal, did not exhaust all the internal remedies provided for in Chapter XI of the Staff Regulations and Staff Rules. However, as the Tribunal has previously ruled, these remedies were not open to former ITU officials under the provisions that were in force at the material time (see Judgments 2892, under 6 to 8, 3139, under 3, or 3178, under 5). The complainant was therefore entitled to come directly before the Tribunal and, contrary to the ITU’s submissions, the fact that he nevertheless filed a request for review of the decision of 13 March 2014 did not oblige him to pursue the resulting internal appeal proceedings until their completion, since he had already left the ITU’s employ on the date when he was notified of that decision (see Judgment 2892 cited above and, a contrario, Judgments 3202, under 10, and 3423, under 7b)).
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 2892, 3139, 3178, 3202, 3423
Keywords:
direct appeal to tribunal; exception; internal remedies exhausted; status of complainant;
Judgment 3442
119th Session, 2015
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The Tribunal found that the decision to dismiss internal appeals concerning a claim for compensation for service-incurred disability was flawed.
Consideration 6
Extract:
In Judgment 2039, under 4, the Tribunal held as follows:
“Precedent says that the requirement to exhaust the internal remedies cannot have the effect of paralysing the exercise of the complainants’ rights. Complainants may therefore go straight to the Tribunal where the competent bodies are not able to decide on an issue within a reasonable time, depending on the circumstances (see Judgments 1829 […], 1968 […] and the numerous judgments cited therein).
However, a complainant can make use of this possibility only where he has done his utmost, to no avail, to accelerate the internal procedure and where the circumstances show that the appeal body was not able to reach a decision within a reasonable time (see, for example, Judgments 1674, […] under 6(b), and 1970 […]). In general, a request for information on the status of the proceedings or the date on which a decision may be expected is enough to demonstrate that the appellant wants the procedure to follow its normal course, and gives grounds for alleging unjustified delay if the authority has not acted with the necessary diligence. However, there are circumstances in which it is unclear whether the procedure has been abandoned or whether the staff member has implicitly consented to the suspension of his appeal in law or in fact. In such cases, the case law says that the staff member must indicate clearly if he wants the procedure to continue. […]”
Reference(s)
ILOAT Judgment(s): 1829
Keywords:
exception; internal remedies exhausted;
Judgment 3424
119th Session, 2015
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The Tribunal found that the impugned implied decision was flawed.
Consideration 6(a)
Extract:
"It is true that, contrary to the Fund’s submissions, its former employees do not have access to the internal appeal procedure for which the applicable regulations make provision. Indeed, the regulations in force at the material time, as well as those which replaced them with effect from 1 August 2012, provide that the internal means of redress are open to “employees”, but there is nothing in the texts governing the organisation’s staff which specifies that this term also refers to former employees. The Tribunal has already had occasion to find, with regard to other international organisations’ staff rules and regulations couched in similar language, that in the absence of any indication to the contrary in the applicable texts, this term must be interpreted as referring solely to serving staff members (see, in particular, Judgments 2840, under 17 to 21, 2892, under 6 to 8, or 3074, under 11 to 13). The Fund’s argument that, in practice, the Appeal Board has so far agreed to consider appeals filed by former employees is no bar to the application of that case law."
Reference(s)
ILOAT Judgment(s): 2840, 2892, 3074
Keywords:
exception; former official; internal appeal; internal remedies exhausted; status of complainant;
Judgment 3423
119th Session, 2015
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The Tribunal found that the impugned implied decision was flawed.
Consideration 7(a)
Extract:
"It is true that [the Fund's] former employees do not have access to the internal appeal procedure for which the applicable regulations make provision. Indeed, the regulations in force at the material time [...] provide that the internal means of redress are open to “employees”, but there is nothing in the texts governing the organisation’s staff which specifies that this term also refers to former employees. The Tribunal has already had occasion to find, with regard to other international organisations’ staff rules and regulations couched in similar language, that in the absence of any indication to the contrary in the applicable texts, this term must be interpreted as referring solely to serving staff members (see, in particular, Judgments 2840, under 17 to 21, 2892, under 6 to 8, or 3074, under 11 to 13)."
Reference(s)
ILOAT Judgment(s): 2840, 2892, 3074
Keywords:
exception; internal appeal; internal remedies exhausted; status of complainant;
Judgment 3267
116th Session, 2014
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugned the decision not to waive the time limit for lodging an internal appeal, claiming that his heavy workload constituted an exceptional circumstance justifying the grant of a waiver.
Considerations 3 and 4
Extract:
"It was not in issue that under Staff Rule 11.1.1(b)(3) the discretionary power to waive the time limits can be exercised in exceptional circumstances. That is what the rule said. In its reasons, the Board pointed to the need for certainty that is created by time limits but noted the discretion to waive them in exceptional circumstances. It did not consider there were such circumstances and that the complainant’s workload would not have prevented him from bringing his appeal in time, though it accepted that may have contributed to him overlooking the time limits.
This reasoning is quite unexceptionable. The complainant argued the reasoning contained a “contradiction”. He pointed to the Board’s acknowledgement in its reasons that the complainant’s heavy workload may possibly have been a contributing factor in the complainant overlooking the deadline. However the substance of what the Board was saying was that it was not satisfied the circumstances were exceptional. It needed to be positively satisfied that they were before it could exercise the discretionary power to waive the time limits. There has been no miscarriage of the exercise of the discretionary power. The Board was not obliged, as the complainant submitted, to involve the Administration and it had power, under Staff Rule 11.1.1(e)(3)(b), to summarily dismiss the appeal as clearly irreceivable. It did so. The complaint to the Tribunal should be dismissed."
Reference(s)
Organization rules reference: Staff Rule 11.1.1(b)(3)
Keywords:
discretion; exception; internal appeal; time limit; waiver of internal appeal procedure;
Judgment 3224
115th Session, 2013
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant successfully contests the termination of her appointment for unsatisfactory service, alleging the absence of a genuine assessment procedure.
Consideration 7
Extract:
"The Tribunal recalls that a staff member whose service is not considered satisfactory is entitled to be informed in a timely manner as to the unsatisfactory aspects of his or her service, so as to be in a position to remedy the situation, and to have objectives set in advance. It also recalls that an organisation cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules governing the evaluation of that performance. Except in a case of manifest error, the Tribunal will not substitute its own assessment of a staff member’s services for that of the competent bodies of an international organisation. Nevertheless, such an assessment must be made in full knowledge of the facts, and the considerations on which it is based must be accurate and properly established (see Judgments 3070, under 9, 2468, under 16, and 2414, under 23 and 24)."
Reference(s)
ILOAT Judgment(s): 2414, 2468, 3070
Keywords:
condition; criteria; decision; due process; duty to inform; elements; exception; grounds; judicial review; limits; organisation's duties; patere legem; performance report; right; unsatisfactory service; work appraisal; written rule;
Judgment 3214
115th Session, 2013
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant unsuccessfully impugns the decision not to extend his appointment beyond retirement age.
Consideration 9
Extract:
"[T]he career of a member of staff normally ends automatically when that person reaches retirement age, and plainly there is nothing abnormal in stipulating that an extension of appointment beyond that age limit, which by definition constitutes an exceptional measure, can be granted only if it is in the interest of the service."
Keywords:
age limit; career; condition; exception; extension beyond retirement age; organisation's interest; retirement; right;
Consideration 14
Extract:
"According to the Tribunal’s case law, an administrative authority, when dealing with a claim, must generally base itself on the provisions in force at the time it takes its decision, and not on those in force at the time the claim was submitted. Only where this approach is clearly excluded by the new provisions, or where it would result in a breach of the requirements of good faith, the non-retroactivity of administrative decisions and the protection of acquired rights, will the above rule not apply (see Judgments 2459, under 9, 2986, under 32, or 3034, under 33)."
Reference(s)
ILOAT Judgment(s): 2459, 2986, 3034
Keywords:
acquired right; applicable law; breach; date; decision; exception; general principle; good faith; non-retroactivity; patere legem; request by a party;
Consideration 24
Extract:
The complainant, who requested the extension of his appointment beyond normal retirement age, takes the Organisation to task for not sending him the Selection Committee’s opinion or the minutes of its deliberations showing its proposal.
"The Tribunal’s case law has it that, as a general rule, a staff member must have access to all evidence on which the competent authority bases its decisions concerning him or her, especially the opinion issued by such an advisory organ. A document of that nature may be withheld on grounds of confidentiality from a third person but not from the person concerned (see, for example, Judgments 2229, under 3(b), or 2700, under 6).
[T]he Tribunal observes that the complainant does not say that he asked for the document in question. While the Organisation could not lawfully have refused to grant such a request, it was under no obligation to forward the document of its own accord (see Judgment 2944, under 42). The position would have been different only if – as is not the case here – the reasons given by the competent authority for its decision had been confined to a mere reference to the advisory body’s opinion."
Reference(s)
ILOAT Judgment(s): 2229, 2700, 2944
Keywords:
advisory body; advisory opinion; age limit; communication to third party; confidential evidence; decision; disclosure of evidence; discretion; duty to inform; exception; extension beyond retirement age; general principle; grounds; official; organisation's duties; proposal; refusal; request by a party; retirement; right; selection board;
Judgment 3196
115th Session, 2013
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the implicit rejection of her request for disclosure of a medical report.
Consideration 7
Extract:
"Although the complaint must be dismissed, the Tribunal will not entertain the Organization’s counterclaim to sanction the complainant for abuse of process. Indeed, whilst her unsubstantiated allegations of fraudulent manipulation and misrepresentation are inappropriate, they do not prove bad faith in and of themselves, and as such do not constitute an exceptional circumstance meriting the imposition of costs on the complainant (see Judgment 1962, under 4)."
Reference(s)
ILOAT Judgment(s): 1962
Keywords:
condition; costs; counterclaim; exception; vexatious complaint;
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