Judgment No. 1109
Decision
1. THE FIRST COMPLAINT IS DISMISSED.
2. THE DIRECTOR-GENERAL'S DECISION OF 8 JUNE 1990 IS SET ASIDE.
3. THE CASE IS SENT BACK TO THE ILO FOR REVIEW.
4. THE ORGANISATION SHALL PAY THE COMPLAINANT 2,500 SWISS FRANCS IN COSTS.
Consideration 3
Extract:
"By the date of filing [his first complaint], 15 March 1990, the complainant had lodged with the organisation one request for review under Article 13.1 of the Staff Regulations and another under Paragraph 15 of Circular 334 [on personal promotion]. Only afterwards, on 2 April, did he file an internal 'complaint' under Article 13.2. So he has failed to exhaust the internal means of redress as Article VII(1) of the Tribunal's Statute requires him to do." The first complaint is irreceivable.
Reference(s)
ILOAT reference: ARTICLE VII(1) OF THE STATUTE
Organization rules reference: ARTICLES 13.1 AND 13.2 OF THE ILO STAFF REGULATIONS; ILO CIRCULAR 334 (SERIES 6) OF 20 JULY 1985
Keywords
complaint; absence of final decision; receivability of the complaint; internal appeal; internal remedies exhausted
Consideration 4
Extract:
In keeping with the scheme for "personal promotion" brought in by Circular 334, "promotion is at the Director-General's discretion, his decision is subject only to limited review, and it may not ordinarily be set aside unless there is some particular fatal flaw. Breach of a procedural rule is such a flaw."
Reference(s)
Organization rules reference: ILO CIRCULAR 334 (SERIES 6) OF 20 JULY 1985
Keywords
promotion; personal promotion; judicial review; discretion; flaw; procedural flaw
Consideration 5
Extract:
The complainant objects to the decision to refuse him personal promotion under Circular 334. The Tribunal holds that the fact "that the explanation came in this case from the Director-General himself [rather than from the Selection Board as required by paragraph 14 of the Circular] is not [...] a procedural flaw. Paragraph 14 is unenforceable because the Board can explain only its own recommendation and because the text might require it to explain even a decision that ran counter to that recommendation."
Reference(s)
Organization rules reference: ILO CIRCULAR 334 (SERIES 6) OF 20 JULY 1985
Keywords
procedure before the tribunal; grounds; administrative instruction; personal promotion; procedural flaw; refusal
Consideration 6
Extract:
After recommending that the complainant should get a personal promotion, the Selection Board held a further meeting at the instance of the Deputy Director-General and shifted ground. The Tribunal holds that "in only two cases may an internal body be asked to think again. One is where something unforeseeable and of decisive moment occurs after it has reported, and the other is where there comes to light some fact or evidence, again of cardinal importance, that it did not know of or could not have known of before it reported." Since those conditions were not met in the instant case, the decision is tainted with a procedural flaw and must be quashed. The complainant is sent back to the Organisation for his case to be reviewed.
Keywords
case reopened; organisation; internal appeals body; advisory body; selection board; flaw; procedural flaw; condition; request by a party
| 
