Judgment No. 4374
The complaints are dismissed.
The complainants challenge the decisions to abolish their posts and terminate their appointments.
late appeal; internal remedies not exhausted; complaint dismissed
The complainants filed their complaints before the Tribunal between 22 February and 7 May 2019. As they address the same basic facts and turn on the same questions of law, including the threshold issue of receivability regarding the question of time bar, the Tribunal finds it convenient to join them and render one judgment.
The ICC requested, and was authorized by the President of the Tribunal, to file a single reply and surrejoinder in relation to all complaints, and to confine its written submissions to the issue of receivability. The complainants assert that “[b]y limiting its submissions to receivability aspects, the Defendant Organisation elected not to defend itself on the merits” and that “[t]he direct and unavoidable consequence of the Defendant Organisation’s line of argumentation in the present case[s] is that, once satisfied that the present case[s] [are] receivable, the Tribunal shall determine on the merits of the present case[s] in light of the sole submissions made by the [c]omplainant[s], without need to reopen the written submissions”. The Tribunal notes that “[e]ven when the President has granted permission to reply only on receivability the Tribunal may still declare a complaint receivable and order further pleadings on the merits, as indeed it did in Judgment 852” (see Judgment 935, consideration 4). As the Tribunal has authorized the pleadings to be confined to the issue of receivability, this is the only issue that will be determined in the present judgment.
ILOAT Judgment(s): 852, 935
receivability of the complaint; reply confined to receivability
The question of whether a judgment of the Tribunal may be considered as a new fact providing an exception to the time limits for lodging an appeal was dealt with in Judgment 3002. In particular, the Tribunal found in considerations 13 to 15 of that judgment that:
“13. [T]ime limits are an objective matter of fact and it should not entertain a complaint filed out of time, because any other conclusion, even if founded on considerations of equity, would impair the necessary stability of the parties’ legal relations, which is the very justification for a time bar. In particular, the fact that a complainant may have discovered a new fact showing that the impugned decision is unlawful only after the expiry of the time limit for submitting an appeal is not in principle a reason to deem his or her complaint receivable (see, for example, Judgments 602, under 3, 1466, under 5 and 6, or 2821, under 8).
14. It is true that, notwithstanding these rules, the Tribunal’s case law allows an employee concerned by an administrative decision which has become final to ask the Administration for review either when some new and unforeseeable fact of decisive importance has occurred since the decision was taken, or else when the employee is relying on facts or evidence of decisive importance of which he/she was not and could not have been aware before the decision was taken (see Judgments 676, under 1, 2203, under 7, or 2722, under 4). However, the fact that, after the expiry of the time limit for appealing against a decision, the Tribunal has rendered a judgment on the lawfulness of a similar decision in another case, does not come within the scope of these exceptions.
15. In particular, in the instant case, the complainant’s argument that the delivery of Judgment 2359 constitutes a new and unforeseeable fact of decisive importance, within the meaning of the above-cited case law, is to no avail. In Judgment 676 the Tribunal did accept that the delivery of one of its judgments could be described in these terms and could therefore have the effect of reopening the time limit within which a complainant could lodge an appeal. But the circumstances of the case were very special in that the Tribunal, in previous judgments which it cited in that case, had formulated a rule which had greatly altered the position of certain staff members of an organisation and which, although already applied by the organisation, had until then not been published or communicated to the staff members concerned. No exceptional circumstances of this nature exist in the instant case where the criticism expressed in Judgment 2359 of the conditions set by the Office for the recognition of a dependent child – which moreover confirmed the soundness of the complainant’s own criticism in this respect – cannot be regarded as unforeseeable.”
The Tribunal underlines that established time limits, which render a decision immune from challenge if they are not observed, are fundamental to the stability of the legal relations between the parties and, accordingly, to the entire legal system of international organizations. Without time limits, there can be no stability, thus undermining the principle of legal certainty of the entire system (see, for example, Judgments 3704, consideration 3, 3795, consideration 4, and 4184, consideration 4).
ILOAT Judgment(s): 3002, 3704, 3795, 4184
time bar; late appeal; new fact
In their requests for review, all the complainants […] sought, as one of their claims for relief, the resignation of the Legal Office’s Chief and the resignation, or withdrawal of the application for re-election, of the Registrar. As the decisions responding to these requests were taken by the Registrar and transmitted to the complainants by the Legal Office under the authority of the Legal Office’s Chief, the complainants submit that it created a conflict of interest as “[t]he personal interests of the ICC Registrar and [of the] Chief of [the] Legal Office were thus directly at stake in the [requests] for [r]eview”. They assert that the Registrar and the Legal Office’s Chief were required “[to] disclose in advance any potential conflict of interest that, to the best of their knowledge, may arise in the course of their duties” in accordance with the provisions of Section 4 of Administrative Instruction ICC/AI/2011/002 of 4 April 2011 entitled “Code of Conduct for Staff Members”. The Tribunal observes that requests for review must be addressed to and responded to by the authority who took the decision being challenged and a conflict of interest cannot be invented just by including a prima facie abnormal claim for relief (such as the request for the Registrar’s resignation). The Registrar correctly considered that no conflict of interest arose from the unreasonable claims for relief.
conflict of interest