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Internal remedies exhausted (88, 89, 656, 743,-666)

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Keywords: Internal remedies exhausted
Total judgments found: 299

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  • Judgment 4271


    129th Session, 2020
    International Criminal Court
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: After the delivery of Judgment 4006, the complainant re-submitted to the new Registrar of the ICC a harassment grievance on the part of the former Registrar. He filed his complaint directly with the Tribunal, considering that he did not receive a final decision on his grievance within the prescribed time limit.

    Considerations 2-3

    Extract:

    In filing his complaint with the Tribunal, the complainant relies on Article VII, paragraph 3, of its Statute. He considers that as he did not receive a final decision within sixty days of the date on which the DAB’s report was submitted to the Registrar, he is entitled to proceed directly to the Tribunal, by filing a complaint within the following ninety-day period.
    This approach is mistaken. As the Tribunal recalled in Judgments 4174, consideration 4, and 3975, consideration 5, for example, it is clearly established in the case law that where the Administration takes any action to deal with a claim, this step in itself constitutes a “decision upon [the] claim” within the meaning of Article VII, paragraph 3, of the Statute, which forestalls an implied rejection that could be referred to the Tribunal. Moreover, firm precedent has it that when an organisation forwards a claim before the expiry of the prescribed period of sixty days to the competent authority, this step in itself constitutes “a decision upon [the] claim” within the meaning of this provision (see, on these points, Judgments 532, 762, 786, 2681, 3034 and 3956). In the present case, it is obvious that the complainant’s grievance has been examined in accordance with the procedure set forth in the Administrative Instruction ICC/AI/2005/005. His complaint therefore cannot be considered receivable under Article VII, paragraph 3, of the Statute.

    Reference(s)

    ILOAT Judgment(s): 532, 762, 786, 2681, 3034, 3956, 3975, 4174

    Keywords:

    direct appeal to tribunal; internal remedies exhausted; summary procedure;

    Judgment keywords

    Keywords:

    complaint dismissed; direct appeal to tribunal; internal remedies exhausted; summary procedure;



  • Judgment 4269


    129th Session, 2020
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, a former EPO employee subjected to a “house ban”, seeks to impugn the decision to reject his requests for review.

    Consideration 6

    Extract:

    Article VII, paragraph 1, of the Statute of the Tribunal 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 redress as are open to her or him under the applicable Staff Regulations”. It is clear from the file that the email [...] from the Conflict Resolution Unit, which confirmed that the complainant’s challenge to the house ban imposed on him was being addressed through the internal appeal procedure, does not constitute a final decision for the purposes of Article VII, paragraph 1, of the Tribunal’s Statute.

    Reference(s)

    ILOAT reference: Article VII, paragraph 1, of the Statute

    Keywords:

    final decision; internal remedies exhausted;

    Judgment keywords

    Keywords:

    complaint dismissed; internal remedies exhausted; receivability of the complaint; summary procedure;



  • Judgment 4268


    129th Session, 2020
    International Criminal Police Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, who was suspended and revoked for having behaved inappropriately, challenges the delay in the appeal proceedings.

    Consideration 11

    Extract:

    Under the Tribunal’s case law, an argument based on an inordinate and inexcusable delay may not be accepted unless a complainant shows that the requirement to exhaust the internal remedies has had the effect of paralysing the exercise of her or his rights. It is only then that she or he is permitted to come directly to the Tribunal where the competent bodies are not able to determine an internal appeal within a reasonable time, depending on the circumstances. A complainant can make use of this possibility only where she or he has done her or his utmost, to no avail, to accelerate the internal procedure and where the circumstances show that the appeal body was not able to reach a decision within a reasonable time (see Judgments 3558, consideration 9, or 4200, consideration 3).

    Reference(s)

    ILOAT Judgment(s): 3558, 4200

    Keywords:

    direct appeal to tribunal; internal remedies exhausted;

    Judgment keywords

    Keywords:

    complaint dismissed; direct appeal to tribunal; internal remedies exhausted; summary procedure;



  • Judgment 4242


    129th Session, 2020
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to consider her claim for compensation for illness attributable to the performance of official duties.

    Judgment keywords

    Keywords:

    complaint dismissed; illness; internal remedies exhausted; receivability of the complaint; service-incurred;



  • Judgment 4226


    129th Session, 2020
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss him for misconduct.

    Judgment keywords

    Keywords:

    complaint dismissed; internal remedies exhausted; receivability of the complaint;

    Consideration 8

    Extract:

    It is difficult to say, in the face of this correspondence, that the complainant’s internal appeal had been paralysed. It is true that the appeal remained unaddressed by the Appeals Committee for a very long time though, in fact, a notice of hearing was issued on 4 April 2018 advising the complainant that the hearing would be held on 8 May 2018, which was later rescheduled to 22 May 2018 when it actually occurred. But the complainant was being told that his appeal would be heard and efforts were being made to ensure that that would happen. The appeal process was not paralysed and the complainant had not exhausted internal means of redress when he filed his complaint with the Tribunal. By operation of Article VII, paragraph 1, his first complaint is irreceivable and should be dismissed.

    Keywords:

    internal remedies exhausted; receivability of the complaint;

    Consideration 4

    Extract:

    Article VII, paragraph 1, of the Tribunal’s Statute is clear in its terms. It provides that “[a] complaint shall not be receivable unless [...] the person concerned has exhausted such other means of redress as are open to her or him under the applicable Staff Regulations”. Article VII, paragraph 1, is satisfied when the complainant’s internal appeal has been paralysed (see, for example, Judgments 3685, consideration 6, 3302, consideration 4, and 2939, consideration 9) and the complainant has done her or his utmost to have the internal appeal resolved (see, for example, Judgments 2039, consideration 4, and 1674, consideration 6(b)). This case law simply identifies circumstances where the complainant can be treated as having exhausted internal means of redress, thus satisfying the provisions of the Article notwithstanding that, as a matter of fact, either an internal appeal body has not addressed the appeal or the executive head of the organisation has not done so at the time the complaint was filed with the Tribunal.

    Reference(s)

    ILOAT Judgment(s): 1674, 2039, 2939, 3302, 3685

    Keywords:

    delay; direct appeal to tribunal; internal remedies exhausted; receivability of the complaint;



  • Judgment 4225


    129th Session, 2020
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision rejecting her requests to reclassify her post and to grant her a special post allowance at grade P-3.

    Judgment keywords

    Keywords:

    administrative decision; complaint dismissed; internal remedies exhausted; receivability of the complaint;



  • Judgment 4224


    129th Session, 2020
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the disciplinary measure of summary dismissal imposed on him.

    Judgment keywords

    Keywords:

    complaint dismissed; former official; internal remedies exhausted;



  • Judgment 4222


    129th Session, 2020
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the refusal of UNESCO to award full compensation for the injury suffered as a result of an accident recognized as being service-incurred.

    Considerations 6-8

    Extract:

    The case law of the Tribunal establishes that, when under an organization’s Staff Rules and Staff Regulations only serving officials have access to the internal appeal procedures, former officials have no possibility of using them and they are then entitled to file a complaint directly with the Tribunal (see, for example, Judgments 2840, consideration 21, 3074, consideration 13, or 3156, consideration 9).
    In the case of UNESCO, the Tribunal has already held that Staff Regulation 11.1, Staff Rule 111.1 and the Statutes of the Appeals Board confine access to internal means of redress to “staff members”, in other words solely to serving officials. In pursuance of this case law, it held that a former staff member could not use the internal means of redress to challenge a decision taken after she had left the Organization (see Judgment 2944, consideration 20).
    However, the wording of the provisions of paragraph 7 of the Statutes of the Appeals Board makes it clear that a staff member who “has been separated” may submit an appeal to the Board. As the Tribunal explained in Judgment 3398, considerations 2 and 6, the internal means of redress established by the Staff Regulations and Staff Rules are open to any person who has been affected by a decision in her or his capacity as an official, even if she or he has since left the Organization. A staff member of UNESCO whose appointment has ended is therefore still entitled to use the internal means of redress if she or he wishes to challenge a decision taken before her or his separation.

    Reference(s)

    ILOAT Judgment(s): 2840, 2944, 3074, 3156, 3398

    Keywords:

    direct appeal to tribunal; internal appeal; internal remedies exhausted;



  • Judgment 4221


    129th Session, 2020
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the rejection of her request for reclassification of her post.

    Consideration 8

    Extract:

    [C]onsistent principle has it that a complainant must comply with the time limits and the procedures, as set out in the organisation’s internal rules and regulations (see, for example, Judgment 3947, consideration 4, and the case law cited therein).

    Reference(s)

    ILOAT Judgment(s): 3947

    Keywords:

    internal remedies exhausted; receivability of the complaint; time limit;



  • Judgment 4211


    129th Session, 2020
    International Organization for Migration
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns what she considers to be an implied rejection of her claims of moral and sexual harassment and abuse of authority.

    Judgment keywords

    Keywords:

    case sent back to organisation; complaint allowed; harassment; implied rejection of internal appeal; internal remedies exhausted;



  • Judgment 4206


    128th Session, 2019
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant argues that the exercise of his right of appeal is paralyzed in view of excessive delays in the internal appeal process.

    Judgment keywords

    Keywords:

    complaint dismissed; internal remedies exhausted; summary procedure;



  • Judgment 4205


    128th Session, 2019
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, a former official of the EPO, seeks the restoration of his rights with respect to two complaints withdrawn in 2015.

    Judgment keywords

    Keywords:

    complaint dismissed; internal remedies exhausted; summary procedure;



  • Judgment 4200


    128th Session, 2019
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns an implied decision to dismiss his appeal against the outcome of a recruitment process.

    Consideration 3

    Extract:

    It is firmly established in the case law that the rules governing the receivability of complaints filed with the Tribunal are established exclusively by its own Statute (see, for example, Judgment 3889, consideration 3). The mere fact that the organization did not respect the time limits set out in its own Staff Rules does not mean that the internal procedure was necessarily paralyzed. [...] Even if the statutory time limit was not respected, which is doubtful in the present case, an argument based on an inordinate and inexcusable delay may only be accepted where the complainant “shows that the requirement to exhaust the internal remedies has had the effect of paralysing the exercise of her or his rights. It is only then that she or he is permitted to come directly to the Tribunal where the competent bodies are not able to determine an internal appeal within a reasonable time, depending on the circumstances. A complainant can make use of this possibility only where [she or] he has done his utmost, to no avail, to accelerate the internal procedure and where the circumstances show that the appeal body was not able to reach a decision within a reasonable time [...]” (see Judgment 3558, consideration 9 (emphasis added), and the case law cited therein).

    Reference(s)

    ILOAT Judgment(s): 3558, 3889

    Keywords:

    direct appeal to tribunal; internal remedies exhausted; receivability of the complaint;

    Judgment keywords

    Keywords:

    complaint dismissed; direct appeal to tribunal; internal remedies exhausted; summary procedure;



  • Judgment 4194


    128th Session, 2019
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainants challenge the refusal to consult them concerning the use of external contractors.

    Considerations 7-9

    Extract:

    Each staff member of an international organisation has a right to freely associate and the organisation has a corresponding duty to respect that right. This is a necessary incident of their employment (see, for example, Judgment 911, consideration 3). On the assumption that, as an incident of freedom of association, an organisation has a duty to meet or satisfy a staff representative’s legitimate request for information as an element of a broader obligation to consult (see, for example, Judgment 2919, consideration 15), and fails to do so, then a staff representative would, in that individual capacity and on this assumption, have a cause of action to enforce that duty.

    There is no issue that, at the time these complaints were filed, each of the complainants had ceased being a member of the Munich Staff Committee even if one or a number may have held another office as a staff representative. Thus, when the proceedings were commenced in the Tribunal, the foundation of their cause of action had been removed. Their complaints are irreceivable.

    This is not a barren technical conclusion. If their complaints were receivable, the merits of the case and the grant of relief would depend on the complainants demonstrating an ongoing right to be provided with the information and a right, if it existed, to continue to require the EPO to do what had been earlier requested. An immediate and probably insuperable problem would arise concerning relief if the complainants were able to establish, on the merits, they had been and were entitled to some or all of the information they had sought or had a right to request that certain things be done. But as they are no longer members of the Munich Staff Committee, they are not now entitled to any information of the type sought in the letter of 17 September 2009 nor to assert a right that the EPO do certain things. However this conclusion is not a barrier, more generally, to the enforcement of a right a member of a staff committee may have to be provided with information or a right to require the organisation to act in circumstances where the membership of the committee fluctuates over time. That is because when a staff representative has asserted a right arising from that status, the assertion or vindication of that right in proceedings before the Tribunal can be pursued by a newly elected staff representative as a “successor in title” (see Judgment 3465, consideration 3).
    That would ordinarily involve the relevant committee approving the new staff representative assuming the role of the former staff representative. If approval was given then all steps taken by the former staff representative could be treated as steps taken by the new staff representative. In this way, steps taken by the former staff representative to pursue the grievance by way of internal appeal can be treated as steps taken by the new staff representative. The prosecution of a complaint in the Tribunal by the new staff representative would not be defeated by an argument that the new staff representative had not exhausted internal means of redress. She or he would have done so vicariously because of the actions of the former staff representative.

    Reference(s)

    ILOAT Judgment(s): 911, 2919, 3465

    Keywords:

    cause of action; duty to inform; freedom of association; internal remedies exhausted; staff representative;



  • Judgment 4174


    128th Session, 2019
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to place her on leave without pay upon exhaustion of her sick leave entitlements.

    Consideration 4

    Extract:

    The complainant’s reliance on Article VII, paragraph 3, is misplaced. As the Tribunal recalled in Judgment 3975, consideration 5, it is clearly established in the case law that where the Administration takes any action to deal with a claim, this step in itself constitutes a “decision upon [the] claim” within the meaning of Article VII, paragraph 3, of the Statute, which forestalls an implied rejection that could be referred to the Tribunal. In the present case, the complainant’s 10 April 2016 protest against the decision of 11 February 2016 was examined and rejected. Accordingly her complaint cannot be considered receivable under Article VII, paragraph 3, of the Statute. Moreover, although the Director-General’s final decision on that appeal was not taken until 26 March 2018, there is nothing in the complainant’s submissions that would lead the Tribunal to conclude that the delay in taking that decision, which UNESCO acknowledges, had the effect of paralysing the exercise of her right of appeal (see Judgment 2367, consideration 11).

    Reference(s)

    ILOAT reference: Article VII, paragraph 3, of the Statute
    ILOAT Judgment(s): 2367, 3975

    Keywords:

    direct appeal to tribunal; internal remedies exhausted; receivability of the complaint;



  • Judgment 4173


    128th Session, 2019
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to assign her to another duty station.

    Consideration 13

    Extract:

    In this case, UNESCO’s actions in relation to the internal appeal process constitute a breach of its duty to ensure that the internal appeal was conducted with due diligence and its duty of care owed to the complainant. Additionally, not only did it breach its obligation to ensure that the appeal procedure moved forward with reasonable speed, it effectively precluded the complainant from exercising her right of appeal. In these circumstances, the Tribunal concludes that the complainant exhausted the available means of redress and her complaint is receivable.

    Keywords:

    internal remedies exhausted; receivability of the complaint;



  • Judgment 4151


    128th Session, 2019
    International Organization for Migration
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to select her for a position.

    Judgment keywords

    Keywords:

    complaint dismissed; internal remedies exhausted; receivability of the complaint;



  • Judgment 4143


    128th Session, 2019
    Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, a former official, challenges a letter from the Director of the Human Resources Services rejecting her request for damages and legal costs arising from the fact that the Commission reclassified at grade P-4 the post of Treasurer, which she held at grade P-3 before her separation from service.

    Judgment keywords

    Keywords:

    complaint dismissed; internal remedies exhausted; receivability of the complaint;



  • Judgment 4141


    128th Session, 2019
    Technical Centre for Agricultural and Rural Cooperation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision of the CTA to reject his proposal to negotiate an agreed termination of his employment contract.

    Judgment keywords

    Keywords:

    competence of tribunal; complaint dismissed; internal remedies exhausted; receivability of the complaint;

    Consideration 12

    Extract:

    [T]he complainant [...] contends [...] that the new administrative tribunal established at the CTA does not, for various reasons, provide the requisite guarantees of independence and impartiality. However, not only is the Tribunal, which is not competent to comment on the qualities and merits of another international tribunal, obviously not able to give credit to such criticisms, but the pleas invoked would not in any case be of such a nature as to allow it to disregard the aforementioned statutory provisions requiring recourse to the conciliation procedure before filing a complaint with the Tribunal. It should further be noted that this plea wrongly disregards the very purpose of this procedure, which is to enable the complainant to resolve the dispute with the CTA by an agreement. Lastly, the fact, also pointed out by the complainant, that the CTA’s new administrative tribunal was not established at the time the present complaint was filed has no bearing on its receivability.

    Keywords:

    internal appeal; internal remedies exhausted; receivability of the complaint;



  • Judgment 4140


    128th Session, 2019
    International Fund for Agricultural Development
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to summarily dismiss her for serious misconduct during her probation period.

    Judgment keywords

    Keywords:

    complaint dismissed; internal remedies exhausted; receivability of the complaint;

    Consideration 9

    Extract:

    As the Tribunal has often recalled, a staff member may not on her or his own initiative evade the obligation to exhaust internal means of redress prior to lodging a complaint with the Tribunal (see, for example, Judgments 2811, considerations 10 and 11, 3399, consideration 4, 3706, consideration 3, or 4056, consideration 5). A complainant cannot, in particular, claim to have respected this obligation simply because she or he has – as the complainant sought to do, in this case, by means of her letter of 3 December 2016 – sent an ultimatum to the decision-making authority to no avail (see Judgments 3302, consideration 4, or 3554, consideration 8).

    Reference(s)

    ILOAT Judgment(s): 2811, 3302, 3399, 3554, 3706, 4056

    Keywords:

    internal appeal; internal remedies exhausted; receivability of the complaint;

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Last updated: 27.10.2020 ^ top