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Judgment No. 3566

Decision

1. The case is remitted to the CDE in order that it execute Judgment 3239 in full and as soon as possible, having regard in particular to the information and supporting documents to be provided by the complainant, as indicated in considerations 7 to 17 and 22.
2. All other claims are dismissed.

Summary

The complainant filed an application for execution of Judgment 3239.

Judgment keywords

Reference(s)

ILOAT Judgment(s): 3239

Keywords

application for execution

Considerations 3 and 4

Extract:

"The Tribunal has consistently held that when the time limit for taking a procedural step expires on a Sunday or a public holiday, this time limit is ipso facto extended to the first following working day (see, for example, with regard to Sunday, Judgments 306, 517 and 3034, under 14, and with regard to a public holiday, Judgments 890, under 4, and 2250, under 8).
As regards the submission of complaints and briefs to the Tribunal itself, for which the date of filing is the date on which they are sent and not the date on which they are received by the Registry, this case law is based on the fact that the postal services of most States do not usually operate on Sundays and public holidays.
However, in view of the reason underpinning it, this solution is not applicable where the deadline for submitting a complaint or a brief expires, as in the present case, on a Saturday. On the contrary, it is ordinarily the rule in most States that postal services operate on this day of the week, albeit under particular conditions.
It is true that the Tribunal has ruled, with respect to an internal appeal filed by an official, that a time limit expiring on a Saturday was automatically extended to the following Monday if Saturday was a non-working day in the organisation concerned (see Judgment 2831, under 3). However, this solution may be explained by the circumstance that appeals of this type are usually deposited with the administrative services of organisations and forwarded to the competent body through the internal mail, so that the closure of these services on non-working days justifies such an extension. As it is usual practice to file submissions with the Tribunal by post, there is no reason to transpose this particular precedent to the filing of complaints or briefs with the Tribunal, since this filing is not hindered by a deadline falling on a Saturday, even if Saturday is not a working day in the organisation concerned."

Reference(s)

ILOAT Judgment(s): 306, 517, 890, 2250, 2831, 3034

Keywords

time bar

Consideration 6

Extract:

"The Tribunal recalls that its judgments, which, according to Article VI of its Statute, are “final and without appeal” and which also have res judicata authority, are immediately operative (see, for example, Judgments 3003, under 12, and 3152, under 11). As they may not later be called into question except when an application for review is allowed, they must be executed by the parties as ruled. They may form the subject of an application for interpretation by the Tribunal only if a party considers that the decision is deficient or insufficiently clear (see, for example, Judgments 1887, under 8, and 3394, under 9)."

Reference(s)

ILOAT Judgment(s): 1887, 3003, 3152, 3394

Keywords

application for interpretation; execution of judgment

Consideration 11

Extract:

"[I]f the CDE wished, despite the Registrar’s informal opinion that it had obtained on this matter, to continue in the belief that it was entitled to deduct the nine months of salary in question from the damages owed to the complainant, clearly it should have filed an application for interpretation [...] with the Tribunal, which it did not."

Keywords

application for interpretation

Consideration 13

Extract:

"Contrary to what the complainant states incorrectly in her submissions,[...] the Tribunal did not award her an amount equivalent to “five years of her last salary”, but rather the salary “which she would have received if the execution of her contract had continued […] for five years [...].” The CDE therefore had to reconstruct the salary that the complainant would have received had she actually continued her employment during that period, subject to the sole condition that, as the consideration stipulates, this reconstruction should be performed “at the same level of emoluments”, i.e. disregarding any salary increases – resulting, for example, from a promotion – which the complainant might have received during that period.
However, the allowances and other financial benefits linked to the complainant’s family situation, which formed one element of her salary, were naturally subject under the applicable internal rules to conditions relating to, inter alia, the age and educational arrangements of her dependent children which, by definition, might have been fulfilled for only part of the five years in question."

Keywords

material injury; execution of judgment

Consideration 14

Extract:

"[T]he complainant, who has a duty to cooperate in good faith in the execution of the judgment in question, could not, as she did, refuse to provide the CDE with the information and supporting documents that she was asked to produce (see Judgment 2684, under 6).
If she wished to challenge the validity of this request, she had only to lodge an application for interpretation of [the] Judgment [...] with the Tribunal, which she did not do either."

Reference(s)

ILOAT Judgment(s): 2684

Keywords

application for interpretation; execution of judgment; good faith

Consideration 17

Extract:

"[C]ontrary to what the CDE appears to believe, it cannot legitimately cite the need to submit its every expense to its Executive Board for approval to exonerate it from its duty to execute the judgment in question promptly.
International organisations that have recognised the Tribunal’s jurisdiction are bound to take whatever action a judgment may require and, in particular, should the Tribunal order payment of a sum of money, to effect this payment without delay (see, inter alia, Judgment 82, under 5, and aforementioned Judgment 3152, under 11). It would be a serious breach of the CDE’s obligations if the execution of such an order were rendered contingent on the Executive Board’s approval, with the inevitable corollary that, should the Board refuse, the CDE would consider itself released from the obligation under which it is placed, or if the execution of the order were simply delayed pending a meeting of the Board, even if the Board’s approval were merely a formality."

Reference(s)

ILOAT Judgment(s): 82, 3152

Keywords

execution of judgment

Consideration 23

Extract:

"[A]s the application for execution filed by the complainant is not [...] vexatious, the CDE’s counterclaim seeking an award of costs will be dismissed."

Keywords

counterclaim



 
Last updated: 06.03.2017 ^ top