Judgment No. 3674
1. The complainant shall have a new time limit of 30 days from the public delivery of this Judgment to file an internal appeal with the Administrative Committee against the decision to terminate his service, as indicated in consideration 9.
2. OTIF shall pay the complainant 2,000 Swiss francs in compensation for the injury resulting from the delay in the final settlement of the case.
3. OTIF shall also pay the complainant 2,000 Swiss francs in costs.
4. All other claims are dismissed.
The complainant challenges the decision not to confirm his appointment at the end of his probation period.
complaint allowed; probationary period
The objection to receivability based on the contention that the complaint was filed late cannot be accepted, since OTIF has not produced any evidence that would enable the Tribunal to establish that the complainant received the notification of 16 July 2013 before the date specified by him [...].
receivability of the complaint; time bar
By informing the complainant [...] that he could not file an appeal with the Administrative Committee under [...] Article 58, OTIF therefore misled him as to his right to avail himself of the means of redress that were open to him under the Staff Regulations.
internal appeal; duty of care
It should be recalled that, as the Tribunal’s case law has long stated, 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. This principle implies that whenever a complainant has been unduly denied the right an effective internal appeal, the Tribunal should ordinarily remit the case to the organisation rather than examine its merits, especially as the review of a disputed decision by the competent body may well suffice to resolve a dispute.
The fact that the complainant was misled as to his right to avail himself of the internal means of redress has resulted in a delay in the final settlement of this case, whatever its eventual outcome may be. This decision alone caused the complainant injury that will be fairly redressed by ordering OTIF to pay him compensation in the amount of 2,000 Swiss francs.