Judgment No. 3435
Decision
The complaints are dismissed, as are the applications to intervene.
Summary
The Tribunal found that the complaints were irreceivable for failure to exhaust internal means of redress.
Judgment keywords
Keywords
direct appeal to tribunal; complaint dismissed
Consideration 2
Extract:
"As the cases are substantially identical, and the parties agree, the complaints are joined."
Keywords
joinder
Consideration 3
Extract:
"The complainants request oral hearings. It is consistent case law that the Tribunal shall not order oral proceedings for cases in which the written submissions are sufficient for rendering an informed decision. The complainants raise no issue that would justify the Tribunal departing from its consistent practice not to grant an oral hearing in cases which turn essentially on questions of law (see Judgment 1241, under 2, and Judgment 2264, under 4, recently confirmed in Judgment 3059, under 9)."
Reference(s)
Jugement(s) TAOIT: 1241, 2264, 3059
Keywords
oral proceedings
Consideration 4
Extract:
"The Tribunal is of the opinion that this case hinges on the question of receivability. Complainants shall have access to the Tribunal 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 resisting it as are open to him under the applicable Staff Regulations”. However, the Tribunal notes that it is important for the parties to attempt to find an internal solution to disputes, particularly as internal appeals bodies are competent to comment not only on the lawfulness of administrative decisions, but also to suggest alternative solutions. This alone can sometimes be enough to resolve a dispute, and in cases which are further pursued, the Tribunal should have at its disposal full records on the administrative handling of the dispute. In the present case, the complainants filed their complaints in March 2010 directly before the Tribunal, upon receiving notice that the Organisation’s position paper on their internal appeal would not be filed until mid-2010. The position paper was filed as indicated."
Keywords
direct appeal to tribunal; internal remedies exhausted
Consideration 5
Extract:
"The complainants assert that they did their utmost, to no avail, to accelerate the internal appeals procedure and that, according to the Tribunal’s case law, they were allowed to file directly with the Tribunal as the requirement to exhaust all internal remedies cannot have the effect of paralyzing the exercise of their rights. The Tribunal is of the opinion that even though the submission of the Organisation’s position paper was already delayed by the time the complainants
wrote to the IAC Chairman in December 2009, and the additional six months for the expected date of submission could be considered excessive depending on the circumstances, the complainants were involved in a dialogue with the Organisation which they abruptly ended by applying directly to the Tribunal upon receiving notice of the Organisation’s intent to submit its position paper in mid-2010. Having received confirmation of the Organisation’s intent to continue the internal appeal, the complainants should have either waited for the Organisation’s position paper of June to continue the internal appeal process, or should have requested a more immediate submission date. The Tribunal notes that, though the appeal process was delayed, it was active, and the complainants could have a reasonable expectation of receiving a final decision which they could then contest before the Tribunal if they found it necessary. Therefore, the Tribunal cannot consider that the complainants had truly done their utmost to pursue their internal appeal and the complaints are considered premature and must be dismissed as irreceivable for failure to exhaust all means of internal redress. As they are irreceivable under Article VII, paragraph 1, of its Statute, the Tribunal shall examine neither other issues of receivability, nor the merits of the complaints."
Keywords
receivability of the complaint; direct appeal to tribunal; internal appeal; internal remedies exhausted
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