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Receivability of the complaint (76, 77, 78, 88, 89, 656, 94, 95, 96, 97, 98, 99, 101, 106, 107, 748,-666)

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Keywords: Receivability of the complaint
Total judgments found: 658

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  • Judgment 4174


    128th Session, 2019
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to place her on leave without pay upon exhaustion of her sick leave entitlements.

    Consideration 4

    Extract:

    The complainantís reliance on Article VII, paragraph 3, is misplaced. As the Tribunal recalled in Judgment 3975, consideration 5, it is clearly established in the case law that where the Administration takes any action to deal with a claim, this step in itself constitutes a ďdecision upon [the] claimĒ within the meaning of Article VII, paragraph 3, of the Statute, which forestalls an implied rejection that could be referred to the Tribunal. In the present case, the complainantís 10 April 2016 protest against the decision of 11 February 2016 was examined and rejected. Accordingly her complaint cannot be considered receivable under Article VII, paragraph 3, of the Statute. Moreover, although the Director-Generalís final decision on that appeal was not taken until 26 March 2018, there is nothing in the complainantís submissions that would lead the Tribunal to conclude that the delay in taking that decision, which UNESCO acknowledges, had the effect of paralysing the exercise of her right of appeal (see Judgment 2367, consideration 11).

    Reference(s)

    ILOAT reference: Article VII, paragraph 3, of the Statute
    ILOAT Judgment(s): 2367, 3975

    Keywords:

    direct appeal to tribunal; internal remedies exhausted; receivability of the complaint;

    Judgment keywords

    Keywords:

    direct appeal to tribunal; receivability of the complaint;



  • Judgment 4173


    128th Session, 2019
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to assign her to another duty station.

    Consideration 13

    Extract:

    In this case, UNESCOís actions in relation to the internal appeal process constitute a breach of its duty to ensure that the internal appeal was conducted with due diligence and its duty of care owed to the complainant. Additionally, not only did it breach its obligation to ensure that the appeal procedure moved forward with reasonable speed, it effectively precluded the complainant from exercising her right of appeal. In these circumstances, the Tribunal concludes that the complainant exhausted the available means of redress and her complaint is receivable.

    Keywords:

    internal remedies exhausted; receivability of the complaint;



  • Judgment 4163


    128th Session, 2019
    United Nations Industrial Development Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to process his request for the reclassification of his post on the ground that he had separated from the Organization.

    Consideration 4

    Extract:

    [T]he complainant relies on Judgment 2658. For relevant purposes, that judgment affirms the principle that a request for the reclassification of a position of a staff member while the person was a member of staff can be pursued after and notwithstanding that the person had separated from the organization. In its pleas, UNIDO seeks to distinguish that judgment having regard to the differing facts in this case. However, the points of distinction have no bearing on the applicability of the principle just discussed.

    Reference(s)

    ILOAT Judgment(s): 2658

    Keywords:

    former official; receivability of the complaint; reclassification;



  • Judgment 4161


    128th Session, 2019
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the validity of a settlement agreement.

    Consideration 4

    Extract:

    Contrary to the complainantís arguments, the Tribunalís case law in principle accepts notification by email (see Judgment 2966, consideration 8, and the case law cited therein). There is no reason to distinguish between emails sent to the staff memberís work address when he is employed and those sent to his private address once he has left the organisation. The Tribunal further considers that since the complainant had chosen his counselís office as his address for notification purposes, which the parties do not dispute, any notification made to that address is valid.
    The decisionís notification to both the complainant and his counsel by both email and registered letter, and also the wording of the email, confused the complainant and led to an exchange of emails with the Deputy Director General concerning the start of the time limit for filing a complaint with the Tribunal. It is true that the Deputy Director General alerted the complainant to the terms of Article VII of the Statute of the Tribunal and advised him to consult his counsel about how to calculate the time limit. However, he did not inform him clearly of the date to take into account. The fact that the email stated that it contained only an advance copy of the decision and that the paper copy would be sent by registered post, and the failure of the email to indicate that the time limit would start to run on the date on which the email was received, could have misled the complainant and caused him to believe that the time limit only started to run on the date when the paper copy of the decision was received (for a similar case, see Judgment 3704, considerations 7 and 8). In this case, it is hence the later date that must be considered as the date on which the time limit for filing a complaint to the Tribunal started to run.

    Reference(s)

    ILOAT Judgment(s): 3704

    Keywords:

    email; late filing; notification; receivability of the complaint;

    Consideration 4

    Extract:

    The complainantís counsel Ė whose office the complainant had chosen as his address for notification purposes [...] Ė was notified of the paper copy of the decision on 14 September 2015. The time limit for filing the complaint hence expired on 13 December 2015. However, as that was a Sunday, the complaint could still be filed the next day (see Judgments 517, 2250, consideration 8, and 3034, consideration 14), as indeed occurred.

    Reference(s)

    ILOAT Judgment(s): 517, 2250, 3034

    Keywords:

    late filing; receivability of the complaint; sunday;

    Consideration 5

    Extract:

    WIPO challenges the complaintís receivability secondly on the grounds that, by signing the settlement agreement, the complainant waived any right to challenge it.
    However, since the complainant submits that he entered into that agreement under pressure which invalidated his consent, this question of receivability is, in this case, inseparable from the merits of the case (see Judgments 3424, consideration 12, and 4072, consideration 4). Indeed, the decision on the objection to receivability depends on the legal validity of the settlement agreement, which makes it necessary to consider the complainantís pleas on the merits (for a similar approach, see Judgments 3610, consideration 6, and 3750, consideration 5).

    Reference(s)

    ILOAT Judgment(s): 3424, 3610, 3750, 4072

    Keywords:

    cause of action; receivability of the complaint; settlement agreement;



  • Judgment 4160


    128th Session, 2019
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant seeks a redefinition of his employment relationship.

    Consideration 13

    Extract:

    In accordance with the Tribunalís case law and pursuant to the provisions of Article VII, paragraph 1, of its Statute, the fact that the appeal lodged by the complainant was out of time renders his complaint irreceivable for failure to exhaust the internal means of redress offered to staff members of the Organization, which cannot be deemed to have been exhausted unless recourse has been had to them in compliance with the formal requirements and within the prescribed time limit (see, for example, Judgment 2888, consideration 9, and Judgments 2010, 2326 and 2708 referred to therein).

    Reference(s)

    ILOAT Judgment(s): 2010, 2326, 2708, 2888

    Keywords:

    internal remedies not exhausted; late appeal; receivability of the complaint;

    Consideration 7

    Extract:

    [T]he complaint does not seek to challenge WIPOís general policy in the matter but the application of this policy to the complainantís particular case and, since it is based on the terms of the complainantís employment contract or the rules and regulations governing the staff of the Organization, it clearly comes within the Tribunalís jurisdiction, as defined in Article II, paragraph 5, of its Statute.

    Keywords:

    individual decision; receivability of the complaint;



  • Judgment 4159


    128th Session, 2019
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant seeks a redefinition of his employment relationship and the setting aside of the decision not to renew his last contract of employment.

    Consideration 7

    Extract:

    [T]he complainantís claims regarding the redefinition of his employment relationship do not seek to challenge WIPOís general policy in the matter but the application of this policy to the complainantís particular case and, since they are based on the terms of the complainantís employment contract or the rules and regulations governing the staff of the Organization, they clearly come within the Tribunalís jurisdiction, as defined in Article II, paragraph 5, of its Statute.

    Keywords:

    individual decision; receivability of the complaint;

    Consideration 11

    Extract:

    In accordance with the Tribunalís case law and pursuant to the provisions of Article VII, paragraph 1, of its Statute, the fact that the appeal lodged by the complainant was out of time renders the claims in question irreceivable for failure to exhaust the internal means of redress offered to staff members of the Organization, which cannot be deemed to have been exhausted unless recourse has been had to them in compliance with the formal requirements and within the prescribed time limit (see, for example, Judgment 2888, consideration 9, and Judgments 2010, 2326 and 2708 referred to therein).

    Reference(s)

    ILOAT Judgment(s): 2010, 2326, 2708, 2888

    Keywords:

    internal remedies not exhausted; late appeal; receivability of the complaint;



  • Judgment 4151


    128th Session, 2019
    International Organization for Migration
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to select her for a position.

    Judgment keywords

    Keywords:

    internal remedies exhausted; receivability of the complaint;



  • Judgment 4149


    128th Session, 2019
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decision to abolish his post and to place him on special leave with pay until the expiry of his fixed-term appointment.

    Consideration 7

    Extract:

    WHO raises a threshold issue about the receivability of the complaint insofar as it might be thought to contain allegations of harassment, malice, prejudice and retaliation being pursued independently of the challenge to the impugned decision to abolish the complainantís post. However, it is relatively clear that the allegations of harassment and related matters are intended to establish an aspect of the unlawfulness of the decision to abolish the post and the complainantís claims are cast no wider. It is open to the complainant to follow this course (see, for example, Judgment 3688, consideration 1).

    Reference(s)

    ILOAT Judgment(s): 3688

    Keywords:

    abolition of post; harassment; receivability of the complaint;



  • Judgment 4145


    128th Session, 2019
    European Molecular Biology Laboratory
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to transfer one of his subordinates to another team.

    Judgment keywords

    Keywords:

    cause of action; receivability of the complaint;



  • Judgment 4143


    128th Session, 2019
    Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, a former official, challenges a letter from the Director of the Human Resources Services rejecting her request for damages and legal costs arising from the fact that the Commission reclassified at grade P-4 the post of Treasurer, which she held at grade P-3 before her separation from service.

    Judgment keywords

    Keywords:

    internal remedies exhausted; receivability of the complaint;



  • Judgment 4141


    128th Session, 2019
    Technical Centre for Agricultural and Rural Cooperation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision of the CTA to reject his proposal to negotiate an agreed termination of his employment contract.

    Judgment keywords

    Keywords:

    competence of tribunal; internal remedies exhausted; receivability of the complaint;

    Consideration 12

    Extract:

    [T]he complainant [...] contends [...] that the new administrative tribunal established at the CTA does not, for various reasons, provide the requisite guarantees of independence and impartiality. However, not only is the Tribunal, which is not competent to comment on the qualities and merits of another international tribunal, obviously not able to give credit to such criticisms, but the pleas invoked would not in any case be of such a nature as to allow it to disregard the aforementioned statutory provisions requiring recourse to the conciliation procedure before filing a complaint with the Tribunal. It should further be noted that this plea wrongly disregards the very purpose of this procedure, which is to enable the complainant to resolve the dispute with the CTA by an agreement. Lastly, the fact, also pointed out by the complainant, that the CTAís new administrative tribunal was not established at the time the present complaint was filed has no bearing on its receivability.

    Keywords:

    internal appeal; internal remedies exhausted; receivability of the complaint;

    Considerations 2, 3, 4

    Extract:

    The CTA, which withdrew its recognition of the Tribunalís jurisdiction by a decision of its Executive Board of 23 March 2018 that was notified to the Director-General of the ILO by a letter of the same date, submits that the Tribunal is therefore not competent to rule on the present complaint. According to the CTA, which had at the same time provided that disputes between itself and its staff members would henceforth be resolved by a new tribunal established at the CTA, its withdrawal from the Tribunalís jurisdiction took immediate effect and therefore precludes the Tribunal from considering the aforementioned complaint, registered on 13 August 2018, since it was filed subsequent to the withdrawal.
    However, as under Article II, paragraph 5, of the Statute of the Tribunal the recognition by an international organization of the jurisdiction of the Tribunal is subject to the approval of the Governing Body of the ILO, the principle of parallelism of form requires that the withdrawal of recognition of jurisdiction should also be subject, before taking effect, to a discussion by the same body. As the Tribunal has previously found, it can only be bound, when an organization decides to withdraw from its jurisdiction, when it has been notified of the ILO Governing Bodyís deliberations taking note of such a decision (see Judgment 1043, consideration 3).
    In the present case, it was only on 30 October 2018 that the ILO Governing Body considered the withdrawal by the CTA of its recognition of the Tribunalís jurisdiction.

    Reference(s)

    ILOAT reference: Article II, paragraph 5, of the Statute
    ILOAT Judgment(s): 1043

    Keywords:

    competence of tribunal; ratione temporis; receivability of the complaint;



  • Judgment 4140


    128th Session, 2019
    International Fund for Agricultural Development
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to summarily dismiss her for serious misconduct during her probation period.

    Judgment keywords

    Keywords:

    internal remedies exhausted; receivability of the complaint;

    Consideration 9

    Extract:

    As the Tribunal has often recalled, a staff member may not on her or his own initiative evade the obligation to exhaust internal means of redress prior to lodging a complaint with the Tribunal (see, for example, Judgments 2811, considerations 10 and 11, 3399, consideration 4, 3706, consideration 3, or 4056, consideration 5). A complainant cannot, in particular, claim to have respected this obligation simply because she or he has Ė as the complainant sought to do, in this case, by means of her letter of 3 December 2016 Ė sent an ultimatum to the decision-making authority to no avail (see Judgments 3302, consideration 4, or 3554, consideration 8).

    Reference(s)

    ILOAT Judgment(s): 2811, 3302, 3399, 3554, 3706, 4056

    Keywords:

    internal appeal; internal remedies exhausted; receivability of the complaint;



  • Judgment 4131


    127th Session, 2019
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision of the President of the Office to reject his appeal against the referral of his case to the Appeals Committee.

    Consideration 4

    Extract:

    The complaint is irreceivable. Although the complainant has formally exhausted the internal means of redress available to him, his internal appeal was directed against what was merely a step in the process which would culminate in a final decision on his appeal. According to the case law, the steps leading to a final decision can be challenged before the Tribunal only in the context of a complaint impugning that final decision (see, for example, Judgment 3961, consideration 4, and the case law cited therein; Judgment 3958, consideration 15; and Judgment 3860, considerations 5 and 6).

    Reference(s)

    ILOAT Judgment(s): 3860, 3958, 3961

    Keywords:

    final decision; receivability of the complaint; step in the procedure;



  • Judgment 4126


    127th Session, 2019
    International Criminal Court
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, a former staff member of the ICC who had separated from service in October 2015, challenges the rejection of his harassment complaint filed in March 2018 against the President of the Staff Union Council.

    Consideration 3

    Extract:

    The complaint is irreceivable. Although Section 4 of Administrative Instruction ICC/AI/2005/005 states that it applies to former staff members, it is firmly established in the case law that the rules governing the receivability of complaints filed with the Tribunal are established exclusively by its own Statute (see, for example, Judgment 3889, under 3). Pursuant to Article II, paragraph 5, of its Statute, the Tribunal is competent to hear complaints alleging ďnon-observance, in substance or in form, of the terms of appointment of officials and of provisions of the Staff RegulationsĒ. In the present case, the Tribunal finds that the complainant, a former official of the ICC, does not allege any breach of his terms of appointment or of ICC Staff Rules applicable to him while he was still an ICC official. His complaint, which does not fall within the competence of the Tribunal, is therefore clearly irreceivable and must be summarily dismissed in accordance with the procedure provided for in Article 7 of the Rules of the Tribunal.

    Reference(s)

    ILOAT reference: Article 7 of the Rules; Article II, paragraph 5, of the Statute
    ILOAT Judgment(s): 3889

    Keywords:

    competence of tribunal; former official; ratione personae; receivability of the complaint; summary procedure;



  • Judgment 4121


    127th Session, 2019
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the alleged failure to implement a decision to grant him three yearsí seniority.

    Consideration 3

    Extract:

    The decision to promote the complainant was made in 2006. It was at that point in time that time-limits to challenge that decision began to run. The Tribunalís case law concerning payslips does not entitle a complainant to belatedly challenge a decision out of time if the payslip is simply confirmatory of that decision (see, for example, Judgment 2823, consideration 10). This is what the complainant seeks to do in these proceedings. The complainant has not exhausted internal means of redress in conformity with the Service Regulations for permanent employees of the European Patent Office. Accordingly his complaint to this Tribunal is irreceivable and should be dismissed.

    Reference(s)

    ILOAT Judgment(s): 2823

    Keywords:

    confirmatory decision; individual decision; internal remedies exhausted; late appeal; new time limit; pay slip; receivability of the complaint; right of appeal;



  • Judgment 4120


    127th Session, 2019
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to communicate to him an investigation report concerning the payment of school fees to another employee.

    Consideration 6

    Extract:

    Staff representatives have a legitimate and important role in the functioning of international organisations. However there are limits to that role, at least as may involve rights enforceable in proceedings in the Tribunal. In its reasoning the IAC referred to Judgment 2919 of this Tribunal in support of a widely cast role for staff representatives. However, the effect of that judgment may have been misunderstood and, in any event, the Tribunal has recently indicated that Judgment 2919, if read too widely, went beyond the scope of the Tribunalís established jurisprudence (see Judgment 3515, consideration 3). In the present case, whether Article 120(a) of the Service Regulations had been applied correctly or incorrectly to the individual the subject of the internal audit was not a matter in respect of which the complainant had an interest capable of being pursued in a complaint to this Tribunal. Nor did the complainant have an enforceable right to obtain the results of the internal audit. Accordingly the complainant has no cause of action and his complaint in the Tribunal is irreceivable (see Judgment 3426, consideration 16). Thus, the complaint should be dismissed.

    Reference(s)

    ILOAT Judgment(s): 2919, 3426, 3515

    Keywords:

    cause of action; locus standi; no cause of action; receivability of the complaint; staff representative;



  • Judgment 4119


    127th Session, 2019
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decision of the President of the Office to amend the wording of a circular in respect of the age limit for the payment of a dependantsí allowance.

    Consideration 4

    Extract:

    The Tribunalís case law consistently holds that a member of staff cannot challenge, by way of a complaint in the Tribunal, a general decision unless and until it is applied to that staff member with adverse legal consequences (see Judgment 4016, consideration 5, and the case law cited therein). That case law is rooted in the provisions of the Tribunalís Statute. The Tribunalís jurisdiction is to deal with disputes concerning, relevantly, the alleged non-observance of the Staff Regulations or of the officialís terms of appointment. In a case such as the present there would have been, at least arguably, a non-observance of the Service Regulations at the moment the complainant was not paid the allowance because of the age of his children. That might have been so because, amongst other reasons, the amendment was not lawfully made or the Service Regulations, properly construed, conferred the allowance beyond the time identified in the amended Circular. However before the payment of the allowance ceased, no issue would arise about the non-observance of the Service Regulations. In the result, this complaint is irreceivable and will be dismissed.

    Reference(s)

    ILOAT Judgment(s): 4016

    Keywords:

    allowance; cause of action; general decision; receivability of the complaint;



  • Judgment 4118


    127th Session, 2019
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the findings of the Medical Committee according to which his invalidity is not of occupational origin.

    Consideration 3

    Extract:

    Even if the Tribunal were to accept to regard the claims in question as being directed against the [...] decision of 12 July 2007, they would still be irreceivable, since they would be time-barred. Indeed, it has been established that the complainant did not impugn the said decision before the Tribunal within the period of ninety days provided for in Article VII, paragraph 2, of the Tribunalís Statute. The decision therefore became final, and the complainant could no longer seek to challenge it in his request of 30 April 2015, almost eight years later. As a result, on this issue, the implied decision of the President of the Office to reject that request must be considered as purely confirmatory of the earlier decision of 12 July 2007. As such, it could not set off a new time limit for an appeal by the complainant (see, for example, Judgments 698, consideration 7, 1304, consideration 5, 2449, consideration 9, or 3002, consideration 12).

    Reference(s)

    ILOAT Judgment(s): 698, 1304, 2449, 3002

    Keywords:

    confirmatory decision; implied decision; new time limit; receivability of the complaint; time bar; time limit;



  • Judgment 4114


    127th Session, 2019
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to downgrade him for serious misconduct.

    Consideration 3

    Extract:

    The fifth complaint is irreceivable because the complainant had not, at the time of its filing, exhausted internal means of redress. The complainant argues that he had, because Article 110(2)(c) of the Service Regulations says, in relation to certain specified decisions, they are excluded from the internal appeal procedure, including ďdecisions taken after consultation of the Disciplinary CommitteeĒ. However the Tribunal has held in Judgment 3888, consideration 9, that Article 110 of the Service Regulations does not absolve a complainant from the need to seek a review to satisfy the Tribunalís jurisdictional threshold that a complainant must have exhausted internal means of redress. The complaint must be dismissed as irreceivable.

    Reference(s)

    ILOAT Judgment(s): 3888

    Keywords:

    internal remedies exhausted; receivability of the complaint;



  • Judgment 4113


    127th Session, 2019
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to promote him and contends that the EPO breached its duty to treat him with dignity.

    Consideration 5

    Extract:

    The complaint form and the complainantís pleas (both his brief and rejoinder) do not identify with any particularity precisely what the decision is that he seeks to impugn in these proceedings. The EPO challenges the receivability of the complaint. Viewing the complaint form and the complainantís pleas as benevolently as possible in the circumstances, his complaint either challenges the decision not to promote him or the decision not to accede to his request for an expedited hearing of his appeal or, perhaps, both. The latter decision is not a final administrative decision with operative legal effect. At best, it was a decision made as a step towards a final administrative decision, had one ever been made in his internal appeal (see Judgment 3890, consideration 5).

    Reference(s)

    ILOAT Judgment(s): 3890

    Keywords:

    final decision; impugned decision; receivability of the complaint; step in the procedure;

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Last updated: 19.07.2019 ^ top