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Judgment No. 4077

Decision

1. The UPUís application for interpretation and review is dismissed.
2. If the complainant is not reinstated with all legal consequences, as required by the orders made in Judgment 3928, within one month of the date of the public delivery of the present judgment, the UPU shall pay him 10,000 Swiss francs for each month of delay thereafter.
3. The UPU shall pay the complainant 25,000 Swiss francs in moral damages.
4. The UPU shall also pay the complainant 7,000 Swiss francs in costs.
5. All other claims and counterclaims are dismissed.

Summary

The UPU applies for interpretation and review of Judgment 3928 alleging errors of fact, inter alia, and asserts that it is impossible to give effect to the Tribunalís order to reinstate the complainant. The complainant applies for execution of Judgment 3928.

Judgment keywords

Keywords

application for execution; application for interpretation; application for review; reinstatement; abolition of post; application filed by the organisation

Consideration 6

Extract:

The UPU submits that the transcripts of the April 2018 meetings of the Council of Administration annexed to the complainantís submissions are irreceivable as they are not official transcripts. It asserts that these transcripts were made by the complainant, and that the Summary Record provided by the Secretary General of the Council of Administration, which was not prepared in transcript format, is the only official record of the meetings of the Council of Administration. The Tribunal acknowledges that the contested annexes are unofficial documents but observes that although the UPU states that these documents were not ďconfirmed or verifiedĒ, it does not contest specifically any part of them.

Keywords

evidence

Consideration 8

Extract:

As the two applications concern the same judgment, the Tribunal finds it convenient to join them in order to render one judgment.

Keywords

joinder

Consideration 8

Extract:

The Tribunal finds the written submissions to be sufficient to reach a reasoned decision and therefore denies the complainantís request for oral hearings.

Keywords

oral proceedings

Consideration 9

Extract:

According to the Tribunalís case law, ordinarily an application for interpretation can only concern the decision in a judgment and not the grounds therefor (see, for example, Judgment 3984, consideration 10, and the case law cited therein). The application for interpretation is, on the face of the record, irreceivable as it does not put in issue the terms of the orders made in the decision in Judgment 3928.

Reference(s)

ILOAT Judgment(s): 3928, 3984

Keywords

application for interpretation

Consideration 10

Extract:

[I]t is well settled that the Tribunalís judgments are final and carry the authority of res judicata. They may be reviewed only in exceptional circumstances and on strictly limited grounds. The only admissible grounds therefor are failure to take account of material facts, a material error (in other words, a mistaken finding of fact involving no exercise of judgement, which thus differs from misinterpretation of the facts), an omission to rule on a claim, or the discovery of new facts on which the complainant was unable to rely in the original proceedings. Moreover, these pleas must be likely to have a bearing on the outcome of the case. On the other hand, pleas of a mistake of law, failure to admit evidence, misinterpretation of the facts or omission to rule on a plea afford no grounds for review (see, for example, Judgments 3001, consideration 2, 3452, consideration 2, 3473, consideration 3, 3634, consideration 4, 3719, consideration 4, and 3897, consideration 3).

Reference(s)

ILOAT Judgment(s): 3001, 3452, 3473, 3634, 3719, 3897

Keywords

application for review; res judicata

Consideration 11

Extract:

The application for review is also irreceivable, as the UPU does not raise any of the admissible grounds for review set out above.

Keywords

application for review

Consideration 14

Extract:

It must be noted that Article II [of the Tribunalís Statute] does not specify which organ of the organization must take a challengeable administrative decision and, therefore, introducing any such limitation based on the internal rules of an international organization is incompatible with the Tribunalís Statute. It is also worth noting that in consideration 2 of Judgment 580, delivered in public on 20 December 1983, the Tribunal stated the following:
ďWho took the decision is not a question on which the Tribunalís competence, as defined in Article II(1) of its Statute, depends. The article merely says that the Tribunal may hear complaints alleging non-observance of the terms of appointment of officials and of provisions of the Staff Regulations. An appeal may therefore lie to the Tribunal against a decision by any authority which a complainant accuses of having infringed the terms of his appointment or the provisions of the Staff Regulations. The decision challenged in this case is just such a decision since the complainant is alleging that the Governing Body acted in breach of a rule he infers from Article 11.3 of the Staff Regulations.
There is therefore no need to consider whether the Tribunal is competent to review measures which the Governing Body takes in the exercise of its rule-making authority.Ē

Reference(s)

ILOAT reference: Article II of the Statute
ILOAT Judgment(s): 580

Keywords

receivability of the complaint; final decision; ratione materiae

Consideration 17

Extract:

In its pleas the UPU submits that ďthe UPU must stress that the [Tribunal] has made a decision which clearly sits outside its purview and seeks to call into question the mandate and authority of the [Council of Administration] as the sovereign governing body of the UPU between Congresses. If upheld, the Administration will have no choice but to take the matter to that governing body, as the [Director General] is in no way authorized to rescind [Council of Administration] decisions. Such an outcome might even lead to significant political implications of a wider character, including a review by UPU member countries of remedial mechanisms available to staff members for impugning decisions of the [Director General]Ē (emphasis added). This is a subtle threat to the Tribunal but a threat nonetheless. As an independent judicial body, the Tribunal is constituted by judges who must act without fear or favour. Such a threat must be ignored. Also, the threat if acted upon would subvert the operation of the rule of law at an international level. That is because dissatisfaction with a judgment lawfully rendered by a judicial body should never ground the rejection of the jurisdiction of that body. This is unacceptable behaviour by an international organization. The disdain the organization shows for the orderly resolution of justiciable disputes subverts the very institutions established to resolve them and the framework within which they operate. That is even more so as the organizationís understanding of the judgment in question is misconceived.

Keywords

application for review; competence of tribunal; threat

Consideration 19

Extract:

With respect to the UPUís request that the Tribunal rescind its decision with respect to the complainantís reinstatement and award him material damages instead, there is no reviewable error that would allow the Tribunal to grant that request.

Keywords

application for review; reinstatement; material damages

Consideration 23

Extract:

The Tribunal recalls that an application for review does not suspend the execution of the judgment (see Judgment 1620, consideration 7).

Reference(s)

ILOAT Judgment(s): 1620

Keywords

application for execution; application for review; suspension

Consideration 23

Extract:

[W]hen a decision to abolish a post is set aside by the Tribunal, there is no need for a new decision to recreate that post. Therefore, the UPU had only to make the administrative arrangements for reinstating the complainant with all the legal consequences that this entailed.

Keywords

reinstatement; abolition of post

Consideration 25

Extract:

The proper exercise by a staff member of her or his right to bring a complaint to the Tribunal should not be held against her or him or found criticism of her or his conduct.

Keywords

conduct

Consideration 25

Extract:

[T]he [organization] could not refer to the complainantís alleged misconduct as a reason not to reinstate him as no disciplinary proceeding has occurred in that regard, so misconduct has never been proven. It is all the more grave when considering that the alleged reason for the abolition of the posts was because of financial constraints. The abolition of a post can never be based on a staff memberís conduct, as that would constitute a hidden sanction. The [organization]ís presentation before the Council of Administration constituted a breach of the duty of care and of the adversarial principle, as the complainant was not given any opportunity to defend himself and his reputation from the allegations. The UPU must respect the dignity of its staff and preserve their reputation.

Keywords

adversarial proceedings; due process; reinstatement; abolition of post; budgetary reasons; misconduct; hidden disciplinary measure; duty of care

Consideration 26

Extract:

The complainant seeks an apology from the organization by order of the Tribunal. This claim is rejected as such an order is outside the Tribunalís competence (see, for example, Judgment 2742, consideration 44, or Judgment 3597, consideration 10).

Reference(s)

ILOAT Judgment(s): 2742, 3597

Keywords

apology



 
Last updated: 25.03.2019 ^ top