Judgment No. 2740
1. The decision declining to address the issues raised by the complainant, of which she was notified on 29 August 2006, is set aside.
2. The case is sent back to UNESCO for a reasoned decision on the complainant's claim submitted to it on 17 October 2002.
3. UNESCO shall pay the complainant 2,000 euros in compensation for the injury caused to her.
4. It shall also pay her 1,000 euros in costs.
5. The complainant's remaining claims are dismissed for the time being.
"The letter of 29 August 2006 must be deemed to constitute an explicit decision to refuse to rule on the request submitted by the complainant [...]. Such a decision may be brought before the Tribunal only after the means of redress open to the complainant have been exhausted (Article VII, paragraph 1, of the Tribunal's Statute)." The complainant did not exhaust all internal means of redress. "Consequently, the complaint would, in the normal course of events, be irreceivable. [...] In the present case, however, such an approach would result in a grave miscarriage of justice. Indeed, in view of the content of the letter of 29 August 2006, by which UNESCO notified the complainant of its refusal to take a decision, the complainant had good grounds to consider that any internal appeal would have proved a hollow and meaningless formality. [...] The complainant was therefore entitled to have direct recourse to the Tribunal, after rightly concluding that the letter of 29 August 2006 contained an implicit waiver of the requirement that she first exhaust internal means of redress. It follows that the complaint cannot be declared irreceivable under Article VII, paragraph 1, of the Tribunal's Statute."
ILOAT reference: Article VII, paragraph 1, of the Statute
decision; express decision; implied decision; receivability of the complaint; direct appeal to tribunal; internal appeal; internal remedies exhausted; iloat statute; condition; refusal; request by a party