Judgment No. 3737
Decision
1. The impugned decisions of 13 March, 20 May and 15 October 2014 are set aside.
2. The case is remitted to the ITU for a full and proper examination of the internal complaint lodged by the complainant on 20 February 2014 under the terms envisaged by Service Order No. 05/05 of 16 March 2005. The ITU shall therefore set up, within 30 days of the public delivery of this judgment, a new commission of inquiry to investigate the complaint.
3. The ITU shall pay the complainant 7,000 euros in moral damages.
4. It shall also pay him 5,000 euros in costs.
5. All other claims are dismissed.
Summary
The complainant alleges that he was subjected to harassment.
Judgment keywords
Keywords
complaint allowed; decision quashed; case sent back to organisation; harassment; late appeal
Consideration 3
Extract:
The two complaints before the Tribunal, which essentially seek the same redress and are partly based on the same arguments, are broadly interdependent. They may therefore be joined to form the subject of a single judgment.
Keywords
joinder
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
status of complainant; direct appeal to tribunal; internal remedies exhausted; exception
Consideration 7
Extract:
[A]ccording to firm precedent, it is for the sender of a document to establish its date of receipt by the recipient in the event of a dispute on this matter (see, for example, Judgments 456, under 7, 723, under 4, 2473, under 4, 2494, under 4, 3034, under 13, or 3253, under 7).
Reference(s)
ILOAT Judgment(s): 456, 723, 2473, 2494, 3034, 3253
Keywords
burden of proof; notification
Consideration 8
Extract:
[B]ad faith cannot be presumed and hence will likewise not be established unless evidence thereof is produced (see, for example, Judgments 2282, under 6, 2293, under 11, 2800, under 21, or 3407, under 15).
Reference(s)
ILOAT Judgment(s): 2282, 2293, 2800, 3407
Keywords
bad faith
Consideration 13
Extract:
The case will be remitted to the ITU for a full and proper examination of the initial internal complaint lodged by the complainant [...] under the terms envisaged by Service Order No. 05/05, as should originally have been the case. Indeed, contrary to what the complainant suggests in his submissions, the Tribunal cannot rule at this stage on the merits of the allegations made in that complaint since most of them have not been subject to the prior investigations necessary to make an informed assessment, which the ITU’s internal bodies alone are able to conduct effectively. The ITU must therefore, within 30 days of the public delivery of this judgment, set up a new commission of inquiry to investigate the said internal complaint.
Keywords
case sent back to organisation; harassment
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