Judgment No. 4059
The complaint is dismissed.
The complainant challenges the decision not to affiliate her to the United Nations Joint Staff Pension Fund.
The complainant does not dispute the grounds on which the finding of irreceivability was made. However, she asks the Tribunal to consider her complaint as an “exceptional case”. The relevant case law of the Tribunal consistently states:
“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’ [...].”
(Judgment 3758, under 10; see also Judgment 3687, under 9, and the cases cited therein.)
In Judgment 3758, under 11, the Tribunal added:
“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 3439, under 4.)”
However, the case law also recognizes that there are exceptions to the requirement of the strict adherence to the applicable time limits. In Judgment 3687, under 10, the Tribunal stated:
“[I]n very limited circumstances an exception may be made to the rule of strict adherence to the relevant time limit. The circumstances identified in the case law are: ‘where the complainant has been prevented by vis major from learning of the impugned decision in good time or where the organisation, by misleading the complainant or concealing some paper from him or her so as to do him or her harm, has deprived that person of the possibility of exercising his or her right of appeal, in breach of the principle of good faith’ (see Judgment 3405, under 17; citations omitted); and ‘where some new and unforeseeable fact of decisive importance has occurred since the decision was taken, or where [the staff member concerned by that decision] is relying on facts or evidence of decisive importance of which he or she was not and could not have been aware before the decision was taken’ (see Judgment 3140, under 4; citations omitted).”
(See also Judgment 3758, under 12.)
ILOAT Judgment(s): 3140, 3405, 3439, 3687, 3758
receivability of the complaint; time limit; delay; exception