Judgment No. 2316
1. The Secretary-General's decision of 20 December 2002 is set aside.
2. The ITU shall pay the complainant her step X salary increment from 1 March 2002, together with interest on the arrears at 8 per cent per annum to the date of payment.
3. It shall pay her moral damages in the sum of 3,000 Swiss francs and costs in the amount of 1,500 francs.
"Res judicata operates to bar a subsequent proceeding if the issue submitted for decision in that proceeding has already been the subject of a final and binding decision as to the rights and liabilities of the parties in that regard. It extends to bar proceedings on an issue that must necessarily have been determined in the earlier proceeding even if that precise issue was not then in dispute. In such a case, the question whether res judicata applies will ordinarily be answered by ascertaining whether one or other of the parties seeks to challenge or controvert some aspect of the actual decision reached in the earlier case."
procedure; complaint; finality of judgment; complaint allowed; decision; res judicata; same cause of action; same purpose; settlement out of court; tribunal; judgment of the tribunal; general principle; organisation's duties; enforcement; intention of parties; staff member's duties; judicial review; definition; right
The complainant wants to be granted her salary increment to step X retroactively. The ITU asserts that the complaint is inadmissible because in Judgment 2170 the Tribunal stated that those pleas were dismissed. "Judgment 2170 was concerned with the complainant's entitlement to her step VIII salary increment, her pleas regarding entitlement to salary increment for step [...] X being dismissed on the basis that they were not and could not be the subject of her first complaint. That being so, there was no final and binding decision on her present claim either expressly or as a necessary step to the decision that she was then entitled to a step VIII increment. Accordingly, the complaint is not barred by res judicata."
ILOAT Judgment(s): 2170
complaint; claim; complaint allowed; decision; absence of final decision; express decision; grounds; receivability of the complaint; res judicata; judgment of the tribunal; iloat; general principle; increment; condition; increase; refusal; request by a party; right
Considerations 19 and 20
The complainant wants to be granted her salary increment to step X retroactively. "The particular circumstances upon which the ITU relies to argue that the complainant should not be granted her step X increment are that the unsatisfactory nature of her services had already been documented prior to the report signed on 3 May 2002 and that she did not cooperate with the establishment of her periodic appraisals. It may at once be noted that the appraisal for the relevant period was not made in May 2002, but in November of that year. Further, and given the complainant's absence on sick leave at various times during the relevant appraisal periods, it is difficult to infer lack of cooperation on her part. However, and more to the point, the matters upon which the Union relies fall far short of establishing that it made a genuine effort to comply with its own procedures, and do not show that the complainant frustrated or sabotaged any such effort. That being so [...], those considerations cannot defeat the complainant's entitlement to her step X increment retroactively. The treatment of the complainant by the ITU is [...] unacceptable."
procedure; claim; complaint allowed; liability; complainant; organisation; evidence; organisation's duties; patere legem; increment; work appraisal; performance report; period; unsatisfactory service; sick leave; date; request by a party; right