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Judgment No. 3424

Decision

1. The implied decision rejecting the appeal filed by the complainant on 18 April 2012 is set aside.
2. The complainantís case is remitted to the Global Fund so that the internal appeal proceedings may be resumed, as indicated under consideration 13.
3. The Fund shall pay the complainant 1,500 euros in costs.
4. The complainantís other claims are dismissed, as is the Fundís counterclaim.

Summary

The Tribunal found that the impugned implied decision was flawed.

Judgment keywords

Keywords

complaint allowed; internal appeal; decision quashed; case sent back to organisation

Consideration 4

Extract:

"In his rejoinder, the complainant contests the receivability of the Fundís reply, on the grounds that it was submitted by a person who did not have the requisite capacity. However, the Fundís reply and surrejoinder are signed by a lawyer who is a member of the bar in Member States of international organisations that have recognized the jurisdiction of the Tribunal, and who has produced a power of attorney duly issued by the Fund. He is consequently entitled, under Article 5, paragraphs 3 and 4, of the Tribunalís Rules, to represent the Fund in the present case."

Keywords

reply; counsel; power of attorney

Consideration 6(a)

Extract:

"It is true that, contrary to the Fundís submissions, its former employees do not have access to the internal appeal procedure for which the applicable regulations make provision. Indeed, the regulations in force at the material time, as well as those which replaced them with effect from 1 August 2012, provide that the internal means of redress are open to ďemployeesĒ, but there is nothing in the texts governing the organisationís staff which specifies that this term also refers to former employees. The Tribunal has already had occasion to find, with regard to other international organisationsí staff rules and regulations couched in similar language, that in the absence of any indication to the contrary in the applicable texts, this term must be interpreted as referring solely to serving staff members (see, in particular, Judgments 2840, under 17 to 21, 2892, under 6 to 8, or 3074, under 11 to 13). The Fundís argument that, in practice, the Appeal Board has so far agreed to consider appeals filed by former employees is no bar to the application of that case law."

Reference(s)

ILOAT Judgment(s): 2840, 2892, 3074

Keywords

status of complainant; internal appeal; internal remedies exhausted; exception; former official

Consideration 6(b)

Extract:

"Before leaving the organisation, [the complainant] had sufficient time to lodge an internal appeal against the disputed decision, and the fact that he subsequently ceased to be an employee of the Fund did not deprive him of the possibility of pursuing those proceedings to the end (see, for a similar case, Judgment 3202, under 10). Indeed, the question whether an employee separating from an organisation has access to the internal means of redress must be determined, for the entire appeal procedure, at the date on which he or she receives notification of the decision he or she intends to challenge, and subsequent events have no bearing on this issue (see also a contrario the above-mentioned Judgments 2892, under 8, and 3074, under 13)."

Reference(s)

ILOAT Judgment(s): 2892, 3074, 3202

Keywords

internal appeal; former official

Consideration 8(a)

Extract:

"According to the Tribunalís case law, for a letter, or an e-mail, addressed to an organisation to constitute an appeal, it is sufficient that the person concerned clearly expresses therein his or her intention to challenge the decision adversely affecting him or her and that the request thus formulated can be granted in some meaningful way (see Judgments 461, under 3, 1172, under 7, 2572, under 9, and 3067, under 16)."

Reference(s)

ILOAT Judgment(s): 461, 1172, 3067

Keywords

internal appeal; organisation's duties

Consideration 8(b)

Extract:

"It is true that the two successive appeals thus lodged by the complainant were not submitted to the authorities competent to hear them. But consistent precedent has it that, although rules of procedure should ordinarily be strictly complied with, they must not set traps for staff members who are defending their rights and therefore they must not be construed with too much formalism. Consequently, an appeal submitted to the wrong authority is not irreceivable on that account and it is for that authority, in such circumstances, to forward it to the one which is competent, within the organisation, to hear it (see, for example, Judgments 1832, under 6, 2882, under 6, or 3027, under 7)."

Reference(s)

ILOAT Judgment(s): 1832, 2882, 3027

Keywords

internal appeal; organisation's duties

Consideration 7

Extract:

"[T]he undeniable complexity of the procedure [...] does not in itself render unlawful the provisions which established it."

Keywords

judicial review

Consideration 10

Extract:

"It is clear that that decision is unlawful. The mere fact that the Fund rendered it impossible for the complainantís appeal to be dealt with in accordance with the applicable rules, owing to the abolition of the post of the authority competent to hear it, is sufficient to vitiate the decision taken on this appeal."

Keywords

internal appeal

Consideration 11

Extract:

"When it transpires that the internal appeal procedure in force in an international organisation has not been followed properly, the Tribunal often decides Ė in some instances on its own initiative Ė to remit the case to the organisation, in order that the competent appeal bodies can hear it, rather than to examine its merits (see, for example, Judgments 1007, 2341, 2530, 2781 or 3067)."

Reference(s)

ILOAT Judgment(s): 1007, 2341, 2530, 2781, 3067

Keywords

internal appeal; case sent back to organisation

Consideration 11(a) and (b)

Extract:

"(a) First, it should be recalled that, as the Tribunalís case law has long emphasised, the right to an internal appeal is a safeguard which international civil servants enjoy in addition to their right of appeal to a judicial authority (see, for example, the above-mentioned Judgments 2781, under 15, and 3067, under 20). This is especially true since internal appeal bodies may normally allow an appeal on grounds of fairness or advisability, whereas the Tribunal must essentially give a ruling on points of law. Consequently, although in this case the complainant himself was mistaken as to his right to resort to the internal appeal procedure, it would be inappropriate to deprive him of the benefit of that procedure.
(b) Secondly, apart from the fact that the review of a disputed decision in an internal appeal procedure may well suffice to resolve a dispute, one of the main justifications for the mandatory nature of such a procedure is to enable the Tribunal, in the event that a complaint is ultimately lodged, to have before it the findings of fact, items of information or assessment resulting from the deliberations of appeal bodies, especially those whose membership includes representatives of both staff and management, as is often the case (see, for example, Judgments 1141, under 17, or 2811, under 11). As rightly pointed out by the defendant, the Appeal Board plays a fundamental role in the resolution of disputes, owing to the guarantees of objectivity derived from its composition, its extensive knowledge of the functioning of the organisation and the broad investigative powers granted to it. By conducting hearings and investigative measures, it gathers the evidence and testimonies that are necessary in order to establish the facts, as well as the data needed for an informed assessment thereof."

Reference(s)

ILOAT Judgment(s): 2781, 3067

Keywords

internal appeals body; internal appeal

Consideration 12

Extract:

"The defendant raises a second, more fundamental objection to the receivability of the complaint, namely that the complainant, by signing the separation agreement, waived their right to challenge the validity or the content thereof. However, since, as just stated, the complainant contends that he signed this agreement under pressure and misrepresentation that vitiated his consent, the question of receivability is inseparable from the merits of this case."

Keywords

agreed termination

Consideration 15

Extract:

"The complainant requests the Tribunal to find that, should this sum be subject to national taxation, he would be entitled to a refund of the tax paid from the Global Fund. However, in the absence of a present cause of action in this respect, the claim must be dismissed as irreceivable (see, for example, Judgments 3255, under 15, or 3270, under 10)."

Reference(s)

ILOAT Judgment(s): 3255, 3270

Keywords

tax; refund



 
Last updated: 02.09.2020 ^ top