Judgment No. 3758
1. The Director-General’s decision of 26 November 2013 is set aside and the matter is remitted to WHO for consideration by the HBA on the merits of the appeal against the selection for post No. 5.0010.
2. WHO shall pay the complainant moral damages in the sum of 12,000 United States dollars.
3. WHO shall pay the complainant costs in the amount of 750 United States dollars.
4. All other claims are dismissed.
The complainant challenges his non-selection for a post.
complaint allowed; decision quashed; selection procedure
As stated in Judgment 2170, under 14, “[a]n international organisation has a duty to comply with its own internal rules and to conduct its affairs in a way that allows its employees to rely on the fact that these will be followed”. An organisation also has a duty to ensure that accurate information is provided to staff members. In turn, a staff member is entitled to rely on that information.
ILOAT Judgment(s): 2170
general principle; duty to inform; patere legem
Although the motivation for doing so is unknown, the Tribunal finds that […] the Administration acted in bad faith by deliberately misleading the complainant to his detriment. It follows that an exception must be made to the strict adherence to the time limit for lodging the internal appeal against the selection decision for post […]. Accordingly, as the internal appeal to the RBA was receivable as was the appeal to the HBA, the complainant has exhausted the internal means of redress and the present complaint before the Tribunal is receivable.
internal remedies exhausted; late appeal
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 3439, under 4.)
ILOAT Judgment(s): 3439
[T]here are exceptions to the requirement of strict adherence to time limits. As stated in Judgment 3687, under 10 and 11:
“10. The case law also recognizes that in very limited circumstances an exception may be made to the rule of strict adherence to the relevant time limit. The circumstances identified in the case law are: ‘where the complainant has been prevented by vis major from learning of the impugned decision in good time or where the organisation, by misleading the complainant or concealing some paper from him or her so as to do him or her harm, has deprived that person of the possibility of exercising his or her right of appeal, in breach of the principle of good faith’ (see Judgment 3405, under 17; citations omitted); and ‘where some new and unforeseeable fact of decisive importance has occurred since the decision was taken, or where [the staff member concerned by that decision] is relying on facts or evidence of decisive importance of which he or she was not and could not have been aware before the decision was taken’ (see Judgment 3140, under 4; citations omitted).
11. It must also be added that a later discovery after the expiry of the time limit for appealing the challenged decision of an irregularity that might have rendered the decision unlawful does not in principle have a bearing on the requisite adherence to the time limit (see, for example, Judgment 3405, under 16).”
ILOAT Judgment(s): 3140, 3405, 3687
time limit; exception