Receivability of the complaint (76, 77, 78, 947, 88, 89, 656, 743, 94, 95, 96, 97, 98, 99, 734, 748, 749,-666)
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Keywords: Receivability of the complaint
Total judgments found: 735
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Judgment 4317
130th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, in his capacity as a member of the Selection Board, challenges the decision not to allow a staff member holding a fixed-term contract to compete for a permanent post.
Considerations 2-3
Extract:
The Tribunal considers that the present case raises two connected threshold issues which need to be resolved: a) whether the complainant’s cause of action can be considered by the Tribunal even though this issue has not been raised by the parties; b) if the answer is yes, whether the complainant has the requisite standing to bring this complaint.
The Tribunal’s answer is affirmative to the first question and negative to the second one.
The Tribunal must, in this case, raise the preliminary issue of the complainant’s cause of action of its own motion, because the existence of a cause of action is a necessary pre-condition for the Tribunal’s competence. If the complainant does not allege the violation of rights which the Tribunal is called upon to protect under the terms of its Statute, the Tribunal cannot adjudicate on the complaint. The Tribunal’s case law connects this issue to the issue of receivability (see Judgments 3426, consideration 16, 3428, consideration 11, 3642, consideration 11, 3648, consideration 5, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 3426, 3428, 3642, 3648
Keywords:
cause of action; receivability of the complaint;
Judgment 4305
130th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his appointment due to the abolition of his post and the failure to reassign him to another suitable vacant position.
Consideration 13
Extract:
WHO challenges the receivability of the complainant’s allegations concerning some of his applications made both during and after the expiry of the reassignment period, on the ground that the selection processes for those positions are not relevant to the impugned decision. However, the complainant is able to challenge his non-appointment as part of a challenge to the termination of his employment arising from his non-redeployment (see Judgment 4036, consideration 10).
Reference(s)
ILOAT Judgment(s): 4036
Keywords:
new claim; reassignment; receivability of the complaint; selection procedure;
Judgment 4285
130th Session, 2020
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests what she considers to be UNESCO’s failure to respect her right to sick leave and medical privacy.
Judgment keywords
Keywords:
complaint dismissed; receivability of the complaint; sick leave;
Consideration 12
Extract:
The Tribunal has constantly held that a complaint will not be receivable “if the underlying internal appeal was not filed within the applicable time limits” (see Judgment 3758, consideration 10, and the cases cited therein). As the complainant did not exhaust the internal means of redress regarding the ICTP Medical Service’s unsuccessful attempt to contact her physician, as required in Article VII, paragraph 1, of the Tribunal’s Statute, the complaint is irreceivable.
Reference(s)
ILOAT Judgment(s): 3758
Keywords:
internal remedies not exhausted; late appeal; receivability of the complaint;
Judgment 4280
130th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to grant him a retirement pension.
Consideration 3
Extract:
The complaint is irreceivable in accordance with Article VII, paragraph 1, of the Statute of the Tribunal which provides that “[a] complaint shall not be receivable unless the decision impugned is a final decision and the person concerned has exhausted such other means of redress as are open to her or him under the applicable Staff Regulations”. The complainant has not complied with the provisions of Articles 92(2) and 93 of the Staff Regulations, which require that an internal complaint against an act adversely affecting him be submitted to the Director General within three months, and that an appeal to the Tribunal be allowed only if the internal complaint filed pursuant to Article 92(2) has been rejected by express or implied decision. The letter of 26 April 2018 cannot be considered as a final decision within the meaning of Article VII, paragraph 1, of the Statute of the Tribunal. Given that the internal means of redress are open to former Eurocontrol officials, the complainant should have requested a review of the decision by the Director General in accordance with the Staff Regulations.
Keywords:
internal remedies not exhausted; receivability of the complaint;
Judgment 4270
129th Session, 2020
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants, former officials of the World Food Programme whose employment was terminated as a result of the abolition of their posts, allege that they performed functions of a higher level than those of the posts they occupied, and claim compensation as well as reinstatement.
Judgment keywords
Keywords:
complaint dismissed; direct appeal to tribunal; late filing; receivability of the complaint; summary procedure;
Judgment 4269
129th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former EPO employee subjected to a “house ban”, seeks to impugn the decision to reject his requests for review.
Judgment keywords
Keywords:
complaint dismissed; internal remedies exhausted; receivability of the complaint; summary procedure;
Judgment 4253
129th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who states that he was the victim of moral harassment, claims redress for the injury he considers he has suffered.
Consideration 5
Extract:
It is true that the acts to which these three pleas relate can no longer, as such, be challenged before the Tribunal. However, inasmuch as the complainant maintains that they contributed to the harassment of which he considers himself to be the victim, the Tribunal must consider them. Indeed, harassment may involve a series of acts over time (see Judgments 2067, consideration 16, and 4034, consideration 16) and can be the result of the cumulative effect of several manifestations of conduct which, taken in isolation, might not be viewed as harassment (see, for example, Judgments 3485, consideration 6, and 3599, consideration 4), even if they were not challenged at the time when they occurred (see, for example, Judgment 3841, consideration 6).
Reference(s)
ILOAT Judgment(s): 2067, 3485, 3599, 3841, 4034
Keywords:
harassment; receivability of the complaint;
Judgment 4243
129th Session, 2020
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the dismissal of her complaint of discrimination and harassment.
Consideration 2
Extract:
WIPO challenges the receivability of the complaint on the grounds that it is directed against the Director General’s decision of 19 January 2016 and not against the Assistant Director General’s decision of 15 April 2016, which was the final decision. It is correct that in the complaint form the complainant only mentioned the Director General’s decision of 19 January 2016, but in her written submissions she also seeks the setting aside of the Assistant Director General’s decision of 15 April 2016.
The challenge to the receivability of the complaint therefore fails.
Keywords:
claim; formal requirements; receivability of the complaint;
Judgment 4242
129th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to consider her claim for compensation for illness attributable to the performance of official duties.
Judgment keywords
Keywords:
complaint dismissed; illness; internal remedies exhausted; receivability of the complaint; service-incurred;
Judgment 4241
129th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaint challenges the decision to dismiss her complaint of harassment as unsubstantiated.
Consideration 7
Extract:
WHO raises receivability as a threshold issue. It argues that matters which are raised in this case are irreceivable insofar as they are covered by separate proceedings, including the complainant’s first complaint contesting the decision to reassign her as Senior Advisor, SIE, and other proceedings that are being pursued by the complainant independently of the challenge to the impugned decision to close her harassment complaint. However, it is relatively clear that the allegations insofar as they may concern those other matters are intended to establish an aspect of the unlawfulness of the decision to close the harassment complaint and the complainant’s claims are cast no wider. It is open to the complainant to follow this course (see, for example, Judgment 4149, consideration 7).
Reference(s)
ILOAT Judgment(s): 4149
Keywords:
harassment; receivability of the complaint; res judicata;
Judgment 4236
129th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the results of the comprehensive local salary survey of 2013 for New Delhi, India.
Judgment keywords
Keywords:
complaint dismissed; general decision; receivability of the complaint; salary;
Considerations 3-4
Extract:
Both in their briefs and in the common rejoinder, the complainants refer to several earlier judgments of the Tribunal, namely Judgments 522, 663, 1618 and 2244 in support of the contention that the complaints are receivable. The Director-General relied on Judgment 3427 in his letter of 5 September 2017 and WHO relies in its pleas on Judgments 3736, 3921 and 3931 to argue the complaints are not receivable. Certainly the contemporary case law of the Tribunal supports the argument of WHO. It is sufficient to refer to Judgment 3931. The circumstances considered in that judgment align almost completely with the circumstances in this matter. The Tribunal said:
“3. [...] The result of the impugned decision was that the salaries of staff who had been recruited before 1 November 2014 would be frozen and staff recruited after that date would receive salaries under a new salary scale. All the complainants were recruited before 1 November 2014. An aspect of the Organization’s argument is that the freezing of salaries results in the continued payment of pre-existing salaries with no injurious effect. However, an argument to the same effect in relation to a salary freeze was rejected by the Tribunal in Judgment 3740, consideration 11. It is unnecessary to repeat the analysis that, with one important qualification, is apt to apply in the present case. The qualification is this. In the case leading to Judgment 3740 the complainants lodged internal appeals against ‘the individual administrative decisions to apply to [each complainant] the statutory decision consisting of the revision of the remuneration of the [General Service category] Staff stationed in Rome’ as reflected in their respective February 2013 pay slips. Challenging a pay slip is an orthodox and accepted mechanism whereby an individual staff member can challenge a general decision as and when it is implemented in a way that affects or is likely to affect that individual staff member.
4. In the present case, the complainants’ causes of action are not based on pay slips. They seek to challenge the general decision embodied in the Administrative Order of 1 October 2014 vide Dossier 2-1 New Delhi. They cannot do so. The distinction between challenging a general decision and challenging the implementation of the general decision as applied to an individual staff member is not a barren technical point to frustrate individual staff members from pursuing their rights or protecting their interests. It is a distinction rooted in the nature and extent of the jurisdiction of the Tribunal conferred by the Tribunal’s Statute. The Tribunal must act within the limits established by the Statute. There are many statements in the Tribunal’s case law about the nature of this jurisdiction and its limits. One example of a comparatively recent discussion of those limits and how they arise from the Statute is found in Judgment 3642, consideration 11. As the Tribunal observed in Judgment 3760, consideration 6: ‘[t]he jurisdiction of the Tribunal is, under the Statute construed as a whole, concerned with the vindication or enforcement of individual rights (see, for example, Judgment 3642, under 11).’”
It bears repeating that the need to challenge an individual decision is not a barren technical point to frustrate individual staff members from pursuing their rights or protecting their interests but rather arises from the nature of the Tribunal’s jurisdiction. For example, in the present case, the relief the complainants seek includes setting aside the decision of the Director-General dated 5 September 2017 and rescinding the results of the 2013 salary survey as announced in the email of 7 October 2014. But orders of this type would apply to all staff affected by both the decision of 5 September 2017 and the email of 7 October 2014 irrespective of whether those staff agreed to or supported that outcome.
Reference(s)
ILOAT Judgment(s): 522, 663, 1618, 2244, 3427, 3642, 3736, 3740, 3760, 3921, 3931
Keywords:
cause of action; general decision; receivability of the complaint; salary;
Judgment 4226
129th Session, 2020
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him for misconduct.
Judgment keywords
Keywords:
complaint dismissed; internal remedies exhausted; receivability of the complaint;
Consideration 8
Extract:
It is difficult to say, in the face of this correspondence, that the complainant’s internal appeal had been paralysed. It is true that the appeal remained unaddressed by the Appeals Committee for a very long time though, in fact, a notice of hearing was issued on 4 April 2018 advising the complainant that the hearing would be held on 8 May 2018, which was later rescheduled to 22 May 2018 when it actually occurred. But the complainant was being told that his appeal would be heard and efforts were being made to ensure that that would happen. The appeal process was not paralysed and the complainant had not exhausted internal means of redress when he filed his complaint with the Tribunal. By operation of Article VII, paragraph 1, his first complaint is irreceivable and should be dismissed.
Keywords:
internal remedies exhausted; receivability of the complaint;
Consideration 4
Extract:
Article VII, paragraph 1, of the Tribunal’s Statute is clear in its terms. It provides that “[a] complaint shall not be receivable unless [...] the person concerned has exhausted such other means of redress as are open to her or him under the applicable Staff Regulations”. Article VII, paragraph 1, is satisfied when the complainant’s internal appeal has been paralysed (see, for example, Judgments 3685, consideration 6, 3302, consideration 4, and 2939, consideration 9) and the complainant has done her or his utmost to have the internal appeal resolved (see, for example, Judgments 2039, consideration 4, and 1674, consideration 6(b)). This case law simply identifies circumstances where the complainant can be treated as having exhausted internal means of redress, thus satisfying the provisions of the Article notwithstanding that, as a matter of fact, either an internal appeal body has not addressed the appeal or the executive head of the organisation has not done so at the time the complaint was filed with the Tribunal.
Reference(s)
ILOAT Judgment(s): 1674, 2039, 2939, 3302, 3685
Keywords:
delay; direct appeal to tribunal; internal remedies exhausted; receivability of the complaint;
Judgment 4225
129th Session, 2020
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision rejecting her requests to reclassify her post and to grant her a special post allowance at grade P-3.
Judgment keywords
Keywords:
administrative decision; complaint dismissed; internal remedies exhausted; receivability of the complaint;
Judgment 4221
129th Session, 2020
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of her request for reclassification of her post.
Consideration 8
Extract:
[C]onsistent principle has it that a complainant must comply with the time limits and the procedures, as set out in the organisation’s internal rules and regulations (see, for example, Judgment 3947, consideration 4, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 3947
Keywords:
internal remedies exhausted; receivability of the complaint; time limit;
Judgment 4219
129th Session, 2020
ITER International Fusion Energy Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who had been seconded to the ITER Organization, challenges the decision to end his secondment and the failure to investigate his harassment allegations.
Consideration 4
Extract:
The defendant organisation contends in its reply that the Tribunal is not competent to deal with this complaint and that it is irreceivable. It also requests the Tribunal to make a procedural ruling limiting the proceedings in the first instance to a consideration of these two contentions. It is unnecessary to make such a procedural ruling. Mostly, when a party challenges the competence of the Tribunal or argues that a complaint is irreceivable, the Tribunal will treat these issues as threshold issues which need to be addressed before, if it becomes appropriate, addressing the merits of the case if the challenge to competence or receivability fails.
Keywords:
competence of tribunal; receivability of the complaint;
Judgment 4200
128th Session, 2019
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns an implied decision to dismiss his appeal against the outcome of a recruitment process.
Consideration 3
Extract:
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, consideration 3). The mere fact that the organization did not respect the time limits set out in its own Staff Rules does not mean that the internal procedure was necessarily paralyzed. [...] Even if the statutory time limit was not respected, which is doubtful in the present case, an argument based on an inordinate and inexcusable delay may only be accepted where the complainant “shows that the requirement to exhaust the 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. A complainant can make use of this possibility only where [she or] he has done his utmost, to no avail, to accelerate the internal procedure and where the circumstances show that the appeal body was not able to reach a decision within a reasonable time [...]” (see Judgment 3558, consideration 9 (emphasis added), and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 3558, 3889
Keywords:
direct appeal to tribunal; internal remedies exhausted; receivability of the complaint;
Judgment 4184
128th Session, 2019
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant mainly challenges the alleged misuse of short-term contracts in her case, the non-extension of her last contract and the allegedly incorrect classification of her job.
Consideration 4
Extract:
The Tribunal, in Judgment 3704, in considerations 2 and 3, recalled that the time limits for internal appeal procedures and the time limits in the Tribunal’s Statute serve the important purposes of ensuring that disputes are dealt with in a timely way and that the rights of parties are known to be settled at a particular point of time. The Tribunal’s rationalisation of this general principle may be summarized as follows: time limits are an objective matter of fact and strict adherence to them is necessary to ensure the stability of the parties’ legal relations. However, there are exceptions to this general principle laid down in the Tribunal’s case law. One of them is the case where the defendant organisation misled the complainant, depriving him of the possibility of exercising his right of appeal in violation of the principle of good faith (see, for example, Judgment 2722, consideration 3, and Judgment 3311, considerations 5 and 6). The Tribunal also recalls that a complaint against an implied rejection may be deemed receivable, notwithstanding the expiry of the time limit for filing a complaint, if a particular step taken by an organisation, such as sending a dilatory reply to the complainant, might give that person good reason to infer that his or her claim is still under consideration (see Judgment 2901, consideration 10).
Reference(s)
ILOAT Judgment(s): 2722, 2901, 3311, 3704
Keywords:
implied rejection of internal appeal; internal appeal; late appeal; receivability of the complaint;
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 complainant’s 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 “decision upon [the] claim” 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 complainant’s 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-General’s final decision on that appeal was not taken until 26 March 2018, there is nothing in the complainant’s 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:
complaint dismissed; 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, UNESCO’s 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;
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