Judgment No. 3860
The complaint is dismissed.
The complainant contests the decision to reject his request for suspension of the decision to abolish his post and terminate his contract pending the outcome of the internal appeal proceedings.
suspensive action; termination
Whether a decision is a final decision is a question raised by Article VII, paragraph 1, of the Tribunal’s Statute that declares a complaint is not receivable unless the decision impugned is a final decision. The case law of the Tribunal establishes two principles. The first is that for a decision to be final it cannot, at least in the ordinary course, be amenable to internal appeal or review or further internal appeal or review. [...]
The second principle is that a decision, to be a final decision for the purposes of Article VII, paragraph 1, must of itself have legal effect (see, for example, Judgments 2201, consideration 4, and 3141, consideration 21). [...] The only qualification to the preceding conclusion arises from the Tribunal’s judgments which distinguish between a number of steps leading to a final decision and the final decision itself. Ordinarily the steps, while they may have the appearance of being a decision, are not treated as a final decision but can be challenged in a challenge to the final decision itself (see, for example, Judgment 3433, consideration 9). It might be thought that a refusal of a request for the suspension of action is a step leading to a decision arising from the internal appeal. However the Tribunal has recognised that this approach has to be applied with some care (see Judgment 2366, consideration 16).
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 2201, 2366, 3141, 3433
This question has been addressed by the Tribunal in Judgment 1883, consideration 5. “Irreparable” injury or harm occurs only where the injury or harm cannot be “compensated by financial damages”. The harm or injury identified by the complainant including damage to his career and reputation as well as his inability to continue working at the ICC can be compensated by financial damages. Indeed, in this case the Registrar, when considering the Appeals Board’s recommendations following the hearing of the internal appeal, has a range of remedies available to him which would ensure the harm to the complainant was reparable, including resiling from the earlier decision to abolish the complainant’s post and terminate his employment. Obviously his consideration of those recommendations has to involve a bona fide exercise by the Registrar of the powers conferred on him.
ILOAT Judgment(s): 1883