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Failure to exhaust internal remedies (656,-666)

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Keywords: Failure to exhaust internal remedies
Total judgments found: 29

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  • Judgment 4103


    127th Session, 2019
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decision not to grant him mission status during the first six months of his assignment to a field post.

    Consideration 1

    Extract:

    [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. 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 3758, under 10 and 11, and the case law cited therein).

    Reference(s)

    ILOAT Judgment(s): 3758

    Keywords:

    failure to exhaust internal remedies; internal appeal; internal remedies exhausted; late appeal; receivability of the complaint; time limit;



  • Judgment 4101


    127th Session, 2019
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, who alleges that he was subjected to moral harassment, challenges the refusal to extend his special leave without pay and to grant him certain accommodations with regard to his working arrangements.

    Consideration 3

    Extract:

    The Tribunal has consistently held that a complainant must not only have exhausted all internal remedies within his organization but also have duly complied with the rules governing the internal appeal procedure. Thus, if the internal appeal was irreceivable under those rules, the complaint filed with the Tribunal will also be irreceivable under Article VII, paragraph 1, of the Statute of the Tribunal (see Judgment 1244, consideration 1).

    Reference(s)

    ILOAT Judgment(s): 1244

    Keywords:

    failure to exhaust internal remedies; internal appeal; internal remedies exhausted; late appeal; receivability of the complaint;



  • Judgment 4056


    126th Session, 2018
    International Organization for Migration
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, who was summarily dismissed by IOM, impugns a decision of the Regional Director concerning her request for review, which he considered time-barred.

    Consideration 5

    Extract:

    A staff member of an international organisation cannot of her or his own initiative evade the requirement that internal remedies must be exhausted prior to filing a complaint with the Tribunal (see Judgment 3458, consideration 7, as well as Judgments 3190, under 9, and 2811, under 10 and 11, and the case law cited therein). As the complainant failed to lodge an appeal, she impugns before the Tribunal a decision which cannot be considered as a final decision within the meaning of Article VII, paragraph 1, of the Tribunalís Statute. Accordingly, the complaint is clearly irreceivable and must be summarily dismissed in accordance with the procedure set out in Article 7 of the Rules of the Tribunal.

    Reference(s)

    ILOAT reference: Article 7 of the Rules
    ILOAT Judgment(s): 2811, 3190, 3458

    Keywords:

    direct appeal to tribunal; failure to exhaust internal remedies;



  • Judgment 4054


    126th Session, 2018
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision to dismiss her appeal against the decision to terminate her assignment to the position of Senior Evaluation Officer.

    Consideration 4

    Extract:

    Pursuant to Article VII, paragraph 1, of the Tribunalís Statute, a complaint is not receivable unless the complainant has exhausted the internal means of redress. As the Tribunal stated in Judgment 3903, consideration 6, ď[t]his means that a complaint will not be receivable if the underlying internal appeal was irreceivable (see Judgment 3758, consideration 10)Ē. As noted above, the complainantís internal appeal was time-barred. Her complaint is therefore irreceivable as she did not exhaust the internal means of redress which were open to her under the FAOís internal regulations as Article VII, paragraph 1, of the Tribunalís Statute requires. Accordingly, the complaint is clearly irreceivable and must be summarily dismissed in accordance with the procedure set out in Article 7 of the Rules of the Tribunal.

    Reference(s)

    ILOAT reference: Article 7 of the Rules; Article VII, paragraph 1, of the Statute
    ILOAT Judgment(s): 3758, 3903

    Keywords:

    failure to exhaust internal remedies; late appeal;



  • Judgment 4051


    126th Session, 2018
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss him for misconduct.

    Consideration 4

    Extract:

    The third complaint is [...] irreceivable as it does not challenge a final decision, within the meaning of Article VII, paragraph 1, of the Tribunalís Statute, which requires that all internal means of redress be exhausted prior to filing a complaint in the Tribunal.

    Reference(s)

    ILOAT reference: Article VII, paragraph 1, of the Statute

    Keywords:

    failure to exhaust internal remedies;



  • Judgment 4030


    126th Session, 2018
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to maintain her position at the same grade.

    Considerations 4, 5, 6

    Extract:

    The basis for the conclusion of the HBA and the decision of the Director-General that the appeal was irreceivable was that Staff Rule 1230.8.1 provided that no staff member shall bring an appeal before a Board of Appeal ďuntil all the existing administrative channels have been tried and the action complained of has become finalĒ. That had not occurred in the present case because Staff Rule 230 provided that a staff member could request a re-examination of the classification of the post she or he occupied, and Annex 2.B of Section III.20 of the HR eGuide provided that where a classification decision was contested by the incumbent of the position concerned, a Classification Review Standing Committee was to be constituted and Annex 2.B set out the procedures, including time limits, for seeking a review.
    The complainant did not contest before the HBA that she had not followed these procedures nor does she in these proceedings. The substance of her argument concerning non-compliance with the aforementioned procedures is that the processes and outcomes would not have been fair. But that does not provide a legal basis for not doing what Staff Rule 1230.8.1 required, namely that she should try all administrative channels before lodging an appeal with the HBA. Such a provision has an obvious purpose. Constituting an internal appeal body and the hearing of the appeal creates demands on the time of the members of the body and on the resources of the organisation more generally. That should be avoided if other and simpler procedures exist which may (but of course may not) resolve the staff memberís grievance.
    The Director-General was entitled to take the approach she did in the impugned decision. In the result, the complaint is irreceivable because the complainant has not exhausted internal means of redress as required by Article VII, paragraph 1, of the Tribunalís Statute. The complaint will be dismissed.

    Reference(s)

    ILOAT reference: Article VII, paragraph 1, of the Statute

    Keywords:

    failure to exhaust internal remedies;



  • Judgment 4002


    126th Session, 2018
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision dismissing as clearly irreceivable his grievance complaint against several members of the Staff Council.

    Consideration 3

    Extract:

    This complaint was filed in the Tribunal before, as a matter of fact, the complainant initiated his internal appeal culminating in the report of the Appeal Board [...]. It may well be that, at the time the complaint was filed, the complainant had not exhausted his internal means of redress, but a firm conclusion to that effect would require a detailed analysis of the applicable rules then operating. Specifically, those rules may address the consequences of the abolition of the JGP effective 1 January 2014, save to enable it to consider grievances filed before that date. But WIPO expressly abandoned, in its pleas, an argument that the complainant had not exhausted the internal means of redress. In these unusual circumstances, the Tribunal will consider the partiesí arguments focusing on the JGPís decision.

    Keywords:

    failure to exhaust internal remedies;



  • Judgment 3892


    124th Session, 2017
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contends that no final decision has yet been taken on her internal appeal.

    Consideration 4

    Extract:

    According to firm precedent, a complaint filed directly with the Tribunal is irreceivable unless the complainant shows that the requirement to exhaust internal remedies has had the effect of paralysing the exercise of her or his rights. It is only then that she or he is permitted to come directly to the Tribunal where the competent bodies are not able to determine an internal appeal within a reasonable time, depending on the circumstances (see, for example, Judgment 3558, under 9).

    Reference(s)

    ILOAT Judgment(s): 3558

    Keywords:

    exception; failure to exhaust internal remedies; summary procedure;



  • Judgment 3873


    124th Session, 2017
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant claims compensation for various injuries that WHO allegedly caused him.

    Consideration 1

    Extract:

    To satisfy Article VII, paragraph 1, of the Statute, which sets out that requirement, the complainant must follow the available internal appeal procedures properly and in particular observe any time limits that may be set for the purposes of those procedures (see, for example, Judgments 3296, under 10, and 3749, under 2).
    Exceptions to that requirement are very limited, namely where staff regulations do not provide for an internal appeal procedure, where the complainant does not have access to an existing internal appeal procedure owing to his or her employment status, or where the parties have mutually agreed to forgo internal appeal proceedings. An exception may also be made where the complainant has initiated internal proceedings but the appeal body is unable to reach a decision without inordinate and inexcusable delay, even though the complainant has done his or her utmost to obtain a final decision (see, for example, Judgments 2912, under 6, 3397, under 1, 3558, under 9, and 3714, under 12).
    The onus is on the complainant to prove that one of those conditions is satisfied.

    Reference(s)

    ILOAT Judgment(s): 2912, 3296, 3397, 3558, 3714, 3749

    Keywords:

    failure to exhaust internal remedies;

    Judgment keywords

    Keywords:

    failure to exhaust internal remedies; receivability of the complaint;



  • Judgment 3585


    121st Session, 2016
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges a decision to dismiss her internal appeal against her performance appraisal reports and the reclassification of her post.

    Judgment keywords

    Keywords:

    failure to exhaust internal remedies; performance report; post classification;



  • Judgment 3580


    121st Session, 2016
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, who held the post of Head of UNESCOís National Office in Kinshasa, contends that she was subjected to harassment.

    Judgment keywords

    Keywords:

    failure to exhaust internal remedies; harassment;



  • Judgment 3558


    120th Session, 2015
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complaints are summarily dismissed for failure to exhaust internal remedies.

    Judgment keywords

    Keywords:

    failure to exhaust internal remedies; joinder; summary procedure;



  • Judgment 3554


    120th Session, 2015
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complaints are summarily dismissed for failure to exhaust internal remedies.

    Judgment keywords

    Keywords:

    failure to exhaust internal remedies; joinder; summary procedure;



  • Judgment 3548


    120th Session, 2015
    European Organization for Nuclear Research
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: As the complaint is clearly irreceivable for failure to exhaust internal remedies, it is summarily dismissed.

    Judgment keywords

    Keywords:

    failure to exhaust internal remedies; summary procedure;



  • Judgment 3519


    120th Session, 2015
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the implied rejection of his request that the Central Occupational Health, Safety and Ergonomics Committee be provided with sufficient information to form an opinion on the impact of an EPO programme on the health of staff.

    Judgment keywords

    Keywords:

    failure to exhaust internal remedies; working conditions;



  • Judgment 3518


    120th Session, 2015
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision to pay a collective reward to staff in active service during 2011.

    Judgment keywords

    Keywords:

    failure to exhaust internal remedies; fringe benefits;



  • Judgment 3516


    120th Session, 2015
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision to pay a collective reward to staff in active service during 2011.

    Judgment keywords

    Keywords:

    failure to exhaust internal remedies; fringe benefits;



  • Judgment 3505


    120th Session, 2015
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to extend her sick leave entitlement beyond the date on which her appointment expired.

    Judgment keywords

    Keywords:

    failure to exhaust internal remedies; separation from service; sick leave;



  • Judgment 3499


    120th Session, 2015
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainants challenge the rejection of their appeal against the creation of the Ethics Office and the decision to transfer another staff member to the position of Chief Ethics Officer.

    Judgment keywords

    Keywords:

    failure to exhaust internal remedies; joinder; transfer;



  • Judgment 3451


    119th Session, 2015
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complaint is dismissed for failure to exhaust internal remedies.

    Judgment keywords

    Reference(s)

    ILOAT Judgment(s): 3050, 3219

    Keywords:

    failure to exhaust internal remedies; illness; service-incurred;

    Consideration 6

    Extract:

    "The complainant was informed that he could contest the decision to reject his compensation claim in one of two ways; either by requesting that a Medical Board be convened in accordance with paragraph 25(b) of Annex II of the Staff Regulations if he contested the decision on medical grounds, or by bringing an appeal to the JAAB if he contested the decision on any other grounds (such as procedural grounds). He chose not to appeal to either, instead bringing the case directly before the Tribunal. The complainant is mistaken in his understanding of the competence of the JAAB and that the decision not to convene a Medical Board is an issue of procedure, and could have been analysed by the JAAB. Staff Regulation 13.2.1 provides that special procedures apply for compensation claims."

    Keywords:

    failure to exhaust internal remedies;

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Last updated: 19.09.2019 ^ top