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Final decision (657, 27, 28, 30, 545,-666)
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Keywords: Final decision
Total judgments found: 86
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Judgment 4840
138th Session, 2024
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to renew her fixed-term contract due to underperformance after placing her on a three-month Performance Improvement Plan.
Consideration 5
Extract:
[T]he Tribunal disagrees with IOM’s assertion that the complaint is allegedly irreceivable (for failure to exhaust the internal means of redress, as the underlying appeal was not filed within the applicable deadline), insofar as it concerns the decisions, communicated to the complainant on 13 June 2019, to establish the PIP (including any alleged violation of the SES process) and to extend the complainant’s contract for a three-month period corresponding to the PIP’s duration. The Tribunal considers that a staff member may challenge the decision to subject her to a PIP in the context of an appeal against the final decision taken at the end of the PIP process. In Judgment 3713, consideration 3, the Tribunal recalled that:
“[I]t is obvious that the setting of a performance objective is merely a step in the process of evaluating the performance of employees. It is firmly established by the Tribunal’s case law that a measure of this kind can only be challenged in the context of an appeal against the final decision taken at the end of the process in question (see for example Judgment 2366, consideration 16, or Judgment 3198, consideration 13).” (See also Judgment 3890, consideration 5.)
In the present case, the decision taken at the end of the PIP process was a decision not to renew the complainant’s fixed-term contract due to underperformance and this decision resulted in the complainant being separated from IOM. This being so, the Tribunal considers that the above cited case law from Judgments 3713, consideration 3, and 3890, consideration 5, is equally applicable in a case such as the present. And given that the complainant impugns her final contract extension and ultimate non-renewal, it is of no relevance whether the issue of her prior three-month extension is receivable.
Reference(s)
ILOAT Judgment(s): 2366, 3198, 3713, 3890
Keywords:
final decision; performance; performance evaluation; performance report; step in the procedure; unsatisfactory service;
Judgment 4823
138th Session, 2024
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to grant him a contract of indefinite duration.
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:
final decision; receivability of the complaint; time limit;
Judgment 4822
138th Session, 2024
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to renew his fixed-term contract.
Consideration 6
Extract:
The question of whether a decision is a final decision is of fundamental importance to the operation of the Tribunal’s Statute. The Statute defines and limits the Tribunal’s jurisdiction. Article VII, paragraph 1, requires a decision to be a final decision before the jurisdiction of the Tribunal is enlivened. Once it is, time limits are triggered: see Article VII, paragraph 2. The question of whether a decision is a final decision is essentially a legal question arising from the language of the Statute.
Keywords:
final decision;
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.
Consideration 12
Extract:
Secondly, it appears, as the Organisation acknowledges in its reply, that the investigation report was also not provided, either in full or even in anonymized form, to the Joint Committee for Disputes before it gave its opinion on 27 February 2020, which in itself also constitutes a flaw since the Committee must be able under all circumstances to give a full and informed opinion (see, in this respect, Judgments 4471, consideration 14, and 4167, consideration 3).
The fact that the members of the Committee considered unanimously that the complainant’s internal complaint was well-founded is irrelevant in this respect, since the Committee could have given an even more reasoned opinion on the merits had it been provided with the final investigation report.
Reference(s)
ILOAT Judgment(s): 4167, 4471
Keywords:
final decision; harassment; internal appeals body; investigation report; motivation; motivation of final decision; procedural flaw;
Judgment 4809
137th Session, 2024
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks a contractual redefinition of his employment relationship and the setting aside of the decision not to renew his last contract.
Consideration 4
Extract:
The wording of th[e] letter [in question] makes it plain that it was not intended to convey a decision taken by the Executive Director but by the Director-General himself, in a procedure commonly used in such cases at the ILO and, mutatis mutandis, in many other international organisations. The matter of whether the power to sign this letter had been granted is therefore irrelevant and the plea must be dismissed in accordance with the Tribunal’s well-established case law in this matter (see, for example, Judgments 4291, considerations 17 and 18, 3352, consideration 7, and 2836, consideration 7).
Reference(s)
ILOAT Judgment(s): 2836, 3352, 4291
Keywords:
decision-maker; delegation of power; final decision; notification;
Judgment 4760
137th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the failure to establish a medical board to examine the percentage of her permanent loss of function.
Judgment keywords
Keywords:
claim moot; complaint dismissed; failure to exhaust internal remedies; final decision; internal remedies not exhausted;
Judgment 4674
136th Session, 2023
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her for misconduct.
Considerations 9-10
Extract:
A difficulty with this approach of the Board is that while it may be true, based on its findings, that the complainant should have known, and possibly inferentially did know, “some” of her conduct was harassment, the Board made no finding that this was true of all the conduct charged against her as misconduct and proven to its satisfaction. This is not a case where each alleged act of misconduct was identified, separately, as warranting the sanction of dismissal. It was the aggregation of conduct “creating a hostile work environment over an extended period of time” which underlay the decision to dismiss. Additionally, one instance where the complainant had caused staff to cry occurred within two years of the complaint against her being lodged by the Staff Association in September 2016. Her complaint about lack of warning was directed to events over the entire preceding nine years comprehended by the charges, which events occurred, in the main, before 2014.
In the impugned decision, the Director effectively repeated this flawed analysis of the Board though, significantly, omitted the word “some” (referred to earlier) in saying that “the Board found that your conduct was ‘so clearly out of bounds that [you] could not help but know that it was improper’”. As just discussed, no such compendious finding was made by the Board in relation to all the conduct relied upon by the Director in confirming the dismissal of the complainant by rejecting her appeal. This material flaw in the analysis by the Director was compounded by her saying that the complainant’s assertion that the Director of Administration and the HRM Director “tolerated” her conduct did not provide the complainant with a defence when her actions were so obviously a violation of the Harassment Policy. This comment is not motivated save to the extent that it involved a purported adoption of what the Board had concluded. No such general conclusion had been reached by the Board […].
Keywords:
beyond reasonable doubt; final decision; misconduct; motivation;
Judgment 4641
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the interim results of his job grade evaluation.
Consideration 7
Extract:
[T]he complainant has failed to challenge a final decision as required by paragraph 1 of Article VII of the Statute of the Tribunal, which states that “[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 clear that the “decision” contained in the 2 May 2013 letter that the complainant purported to challenge was a mere step towards what eventually became a final challengeable decision of 9 October 2013, which informed him of the outcome of his job evaluation and which he has contested in another internal appeal.
Keywords:
final decision; receivability of the complaint; step in the procedure;
Judgment 4616
135th Session, 2023
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision finding that she had harassed another staff member and imposing a written reprimand on her.
Consideration 9
Extract:
As the Tribunal’s case law establishes, the executive head of an organisation, when adopting the recommendations of an internal appeal body, is under no obligation to give any further reasons than those given by the appeal body itself. The obligation to give reasons is affirmed only where the executive head of an organisation rejects the conclusions and recommendations of the appeal body (see Judgments 4307, consideration 15, and 3994, consideration 12). Accordingly, having accepted the advice of the Advisory Board, the Secretary-General was under no obligation to provide further reasons for his decision.
Reference(s)
ILOAT Judgment(s): 3994, 4307
Keywords:
final decision; motivation of final decision;
Judgment 4587
135th Session, 2023
South Centre
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the non-renewal of her fixed-term appointment.
Consideration 5
Extract:
[O]ne matter should be noted. As is apparent from the [applicable] provisions […], the Appellate Body’s decisions are final. Thus, unlike the appellate framework in many international organizations, the final decision on an appeal does not rest with the Executive Head of the organization. In its pleas, the South Centre challenges some of the reasoning and conclusions of the Appellate Body.
Given that this body is invested under the South Centre’s Regulations with the power to make a final decision binding on the organization, it may be doubted that the South Centre is able to impeach its decision-making in the Tribunal. However, this issue was not raised in the pleas and nothing more needs to be said in this judgment.
Keywords:
estoppel; final decision;
Judgment 4558
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision not to reimburse the costs incurred in connection with his third complaint to the Tribunal.
Consideration 6
Extract:
The Tribunal observes that it is contradictory and regrettable that the Organisation submits before it that the decision communicated to the complainant was not final while it had nevertheless specified, in its email [...], that the complainant could not submit a request for review. While an organisation has a duty to correct any mistakes made by an employee in the exercise of her or his right of appeal, it has an even greater duty not to misdirect an employee to the wrong venue by incorrectly telling her or him that a request for review is not the right remedy or that her or his only possible recourse is to file a complaint with the Tribunal and then criticise her or him for having followed its directions.
Above all, however, the Tribunal notes that an organisation cannot exempt the complainant from the requirement to exhaust internal remedies when the applicable provisions of the staff rules and regulations do not authorise it to do so, and still less indicate wrongly to the employee concerned that she or he can file a complaint directly with the Tribunal.
Keywords:
final decision; organisation's duties; waiver of internal appeal procedure;
Judgment 4543
134th Session, 2022
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her performance evaluation for 2016.
Consideration 7
Extract:
The Tribunal recalls its settled case law under which “the executive head of an international organization, when taking a decision on an internal appeal that departs from the recommendations made by the appeals body, to the detriment of the employee concerned, must adequately state the reasons for not following those recommendations” (see, for example, Judgment 4062, consideration 3, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 4062
Keywords:
final decision; motivation; motivation of final decision;
Judgment 4540
134th Session, 2022
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her dismissal as a result of disciplinary proceedings.
Considerations 4-5
Extract:
The Tribunal derives its jurisdiction from its Statute. In an early case it was described as “a [c]ourt of limited jurisdiction [...] bound to apply the mandatory provisions governing its competence” (see Judgment 67, consideration 3). One of the Tribunal’s central roles, founded on Article II of the Statute, is to enforce compliance with staff regulations where they have not been observed. The touchstone of its jurisdiction is, in this respect, lawfully adopted staff regulations or rules of international organisations. The provisions in the staff regulations and rules are the starting point in the exercise of jurisdiction. Accordingly, Staff Rule 1230.7.2 which provides that the final decision in an appeal is made by the Director, must be respected and given full effect. The Director was authorised to make the decision in the appeal in the present case and her decision was not tainted by illegality as alleged by the complainant.
Cases do arise in the Tribunal where the decision appealed against and the decision in the appeal are made by the same person, but the latter decision involves a rejection of recommendations of the appeal body. The discussion in the preceding consideration is not intended to suggest that in such cases there is no real scrutiny by the Tribunal of that latter decision and the reasons given. To the contrary, there is. The Tribunal’s case law is replete with examples where the motivation for the rejection has been found to be inadequate and the decision in the appeal has been set aside (see, for example, Judgments 4427, consideration 10, 4259, considerations 11 and 12, and 4062, consideration 4). This approach has the effect of respecting rules conferring, ordinarily, on the executive head of an organisation the power to make the final decision in an appeal even if an appeal from a decision of that person, while recognising the vitally important role appeal bodies play and the need to give considerable weight to findings and recommendations they make.
Reference(s)
ILOAT Judgment(s): 67, 4062, 4259, 4427
Keywords:
administrative decision; competence of tribunal; conflict of interest; final decision;
Judgment 4504
134th Session, 2022
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to demote her from grade P4 to grade P3 for a period of two years.
Consideration 10
Extract:
Inasmuch as the Appeal Board’s role in an internal appeal is an advisory one, the Director General may depart from its recommendations provided that she or he must state clear and cogent reasons for doing so (see, for example, Judgment 2699, consideration 24).
Reference(s)
ILOAT Judgment(s): 2699
Keywords:
disciplinary body; disciplinary measure; final decision; motivation;
Judgment 4471
133rd Session, 2022
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss his complaint of psychological harassment.
Consideration 14
Extract:
It is plain from Judgments 4167 and 4217, which also concern complaints of psychological harassment, that a decision is rendered unlawful by the refusal of an organisation’s executive head to disclose to the joint appeals body the report of the investigation into the harassment complaint lodged by the official concerned, or at least a redacted copy thereof. Similarly, in the aforementioned Judgment 4217, considerations 4 to 6, the Tribunal points out that, according to settled case law, a staff member must, as a general rule, have access to all the evidence on which the competent authority bases its decision concerning her or him. In this case, the Joint Committee for Disputes, on whose opinion the Director General states he bases his decision of 15 December 2016, was not provided with the investigation report concerned. Nor had the complainant received it by the time he was notified on 14 January 2016 that his psychological harassment complaint had been closed. In Judgment 4081, the Tribunal recalls that the reasons for a decision must be sufficiently explicit to enable the person concerned to understand why it was taken and the Tribunal to exercise its power of review. In the present case, the Director General neither provided information nor referred to the Committee’s reasons that would allow the complainant to understand why the decision was taken.
Reference(s)
ILOAT Judgment(s): 4167, 4217
Keywords:
confidentiality; final decision; harassment; internal appeals body; investigation report; motivation; motivation of final decision; procedural flaw;
Judgment 4427
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to maintain his transfer to a patent examiner post.
Consideration 4
Extract:
The rationale for fully and adequately motivating the final decision on an internal appeal was relevantly stated as follows, in consideration 9 of Judgment 3727:
“It is not sufficient to explain why, in the opinion of the executive head of the organisation, the internal appeal body approached an issue in a way that was flawed. It is also necessary to explain the basis on which the conclusion actually reached by the executive head of the organisation was arrived at if it was different to the conclusion of the internal appeal body [...] In the present case, it was necessary for the Secretary General not simply to identify perceived flaws in the reasoning or procedures of the Commission said to undermine its conclusion that the post had evolved but, in addition, to explain his reasons for the conclusion that the post had been “cut”. This leads to consideration of whether, in all the circumstances, the impugned decision sufficiently explained this latter conclusion.”
Reference(s)
ILOAT Judgment(s): 3727
Keywords:
duty to substantiate decision; final decision; motivation; motivation of final decision; report of the internal appeals body;
Judgment 4422
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants are former permanent employees of the European Patent Office who challenge their January 2014 and subsequent payslips showing an increase in their pension contributions.
Consideration 12
Extract:
The complainants contend that the impugned decisions contain no reasoning and solely relied on the Appeals Committee’s opinion which is not acceptable and biased. The Tribunal’s case law has it that a final decision may accept the opinion or recommendations of an internal appeal body without further analysis (see, for example, Judgment 3994, consideration 12), but must be motivated if it rejects the opinion and recommendations (see Judgment 4062, consideration 3, and the case law cited therein). Accordingly, the fact that the impugned decisions merely accepted the Appeals Committee’s reasoning does not vitiate those decisions.
Reference(s)
ILOAT Judgment(s): 3994, 4062
Keywords:
duty to substantiate decision; final decision; motivation; motivation of final decision; report of the internal appeals body;
Judgment 4415
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to impose upon him the disciplinary measure of dismissal for misconduct.
Consideration 14
Extract:
The approach taken by the President to the question of the relevance of the complainant’s health and whether there were any mitigating circumstances or factors was significantly flawed. The impugned decision rejecting the request for review of the decision to dismiss the complainant for misconduct will be set aside.
Keywords:
disciplinary measure; final decision; health reasons; mitigating circumstances;
Judgment 4404
132nd Session, 2021
African, Caribbean and Pacific Group of States
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks reimbursement of an amount wrongly deducted from her pay owing to double national taxation of her income, and compensation for the moral injury allegedly suffered as a result.
Consideration 3
Extract:
As the Tribunal has repeatedly stated in its case law, “[o]rdinarily, the process of decision-making involves a series of steps or findings which lead to a final decision. Those steps or findings do not constitute a decision, much less a final decision. They may be attacked as a part of a challenge to the final decision but they, themselves, cannot be the subject of a complaint to the Tribunal” (see Judgment 2366, consideration 16, confirmed by Judgments 3433, consideration 9, 3512, consideration 3, 3700, consideration 14, 3876, consideration 5, and 3961, consideration 4).
In this case, the email [...], the sole purpose of which was to invite the complainant to submit documents deemed necessary by the organisation’s services so that the deductions could be reimbursed, was merely a step in preparation for the decision that would ultimately be taken as to the payment of the sums in question. That email cannot therefore be construed as constituting a final decision within the meaning of Article VII, paragraph 1, of the Statute of the Tribunal and could not, therefore, be impugned before the Tribunal (for a similar case involving a request for the production of supporting documents required for the examination of an application for financial benefits, see Judgment 3876, considerations 4 and 5).
It follows that the complaint must be dismissed as irreceivable.
Reference(s)
ILOAT Judgment(s): 2366, 3433, 3512, 3700, 3876, 3961
Keywords:
disclosure of evidence; failure to exhaust internal remedies; final decision; impugned decision; step in the procedure;
Judgment 4379
131st Session, 2021
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the Administration’s refusal to provide him in a timely manner with unredacted copies of documents and records relied upon by the Internal Oversight Services during the disciplinary investigation.
Consideration 7
Extract:
[T]he complainant’s reliance on Judgment 4167, consideration 4, in support of his assertion that the Director-General violated his duty to motivate his departure from the GBA’s findings is misplaced. As stated in this judgment, consideration 4, “an executive head of an international organisation who departs from a recommendation of an internal appeal body must state the reasons for disregarding it and must motivate the decision actually reached”. This case law only has application when an authority competent to make a final decision departs from the internal appeal body’s recommendation. As the Director-General accepted the GBA’s recommendation in its entirety, there was no alternative decision that required motivation. Accordingly, the complainant’s submission that the impugned decision was “not properly motivated” is unfounded.
Reference(s)
ILOAT Judgment(s): 4167
Keywords:
final decision; motivation; motivation of final decision;
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