Judgment No. 2364
Both the complaint and the UPU's counterclaim are dismissed.
"Even though it is only the 'decision' of 10 March 2002 which he wishes to have set aside, the complainant refers to facts which arose after that date and adds in his rejoinder that, since the final decision was dated 23 July 2002, 'all grievances raised until that date can validly be taken into account' as part of his complaint. [...] With regard to the claims based on facts subsequent to 10 March 2002 and presented as grounds for appeal, since internal remedies were not exhausted (Article VII(1) of the Statute of the Tribunal), they must be deemed irreceivable. [...] Furthermore, the validity of a decision or measure cannot be judged on the basis of facts occurring subsequently to that decision or measure."
ILOAT reference: Article VII(1) of the Statute
complaint; claim; new claim; grounds; subsequent fact; receivability of the complaint; internal remedies exhausted; rejoinder; iloat statute; date
Since it does not affect the complainant’s legal situation, either by changing his status or even by making any statement in that respect, the measure of 10 March 2002 does not constitute an “administrative decision” concerning the complainant.
opening of an investigation
On 10 March 2002 the complainant was informed that an administrative investigation concerning him was to be conducted, which might lead to a disciplinary procedure. The purpose of such an investigation, which may be compared – in terms of criminal justice – to the investigation that precedes possible criminal proceedings, is not to gather evidence which can be used against the person concerned, but to provide the competent authority with enough information to decide whether there is sufficient evidence to initiate a disciplinary procedure. Since the latter must by definition be adversarial, the organisation cannot make use of evidence against the person concerned unless it has been gathered in compliance with proper adversarial procedure, as required by consistent case law, and the individual concerned may contest any measure not complying with that requirement.