Internal remedies exhausted (88, 89, 656, 743,-666)
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Keywords: Internal remedies exhausted
Total judgments found: 307
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Judgment 3836
124th Session, 2017
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to reject her internal complaint of harassment.
Judgment keywords
Keywords:
complaint dismissed; harassment; internal remedies exhausted;
Judgment 3833
124th Session, 2017
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.
Judgment keywords
Keywords:
complaint dismissed; internal remedies exhausted; post classification;
Judgment 3829
124th Session, 2017
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges Eurocontrol’s refusal to convert her limited-term appointment into an appointment for an undetermined period and the non-renewal of her contract.
Consideration 3
Extract:
It is necessary to examine whether the complaint satisfies the requirements of Article VII, paragraph 1, of the Statute of the Tribunal insofar as it is directed against the decision of 19 August 2013.
According to that provision, “[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”. The only exceptions allowed under the Tribunal’s case law to this requirement that internal means of redress must have been exhausted are cases where staff regulations provide that decisions taken by the executive head of an organisation are not subject to the internal appeal procedure, where there is an inordinate and inexcusable delay in the internal appeal procedure although the person concerned has done everything that could be expected of them to try to obtain a final decision, where for specific reasons connected with the personal status of the complainant she or he does not have access to the internal appeal body or, lastly, where the parties have mutually agreed to forgo this requirement that internal means of redress must have been exhausted (see Judgment 2912, under 6).
In accordance with the Tribunal’s case law regarding compliance with this requirement to exhaust internal means of redress, a complainant may enlarge on the arguments presented before internal appeal bodies, but may not submit new claims to the Tribunal (see Judgment 3420, under 10).
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 2912, 3420
Keywords:
internal remedies exhausted;
Consideration 4
Extract:
[I]t must be recalled that, according to the case law, to satisfy the requirement that internal means of redress have been exhausted laid down in Article VII, paragraph 1, of the Statute of the Tribunal, the complainant must not only follow the prescribed internal procedure for appeal, but must follow it properly and in particular observe any time limit that may be set for the purpose of that procedure (see, in particular, Judgments 1469, under 16, and 3296, under 10).
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 1469, 3296
Keywords:
internal remedies exhausted;
Judgment 3828
124th Session, 2017
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges Eurocontrol’s refusal to convert her limited-term appointment into an appointment for an undetermined period, the reduction of the basis for calculating her contributions to the Eurocontrol Pension Scheme and the non-renewal of her contract.
Consideration 3
Extract:
It is necessary to examine whether the complaint satisfies the requirements of Article VII, paragraph 1, of the Statute of the Tribunal insofar as it is directed against the decision of 19 August 2013.
According to that provision, “[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”. The only exceptions allowed under the Tribunal’s case law to this requirement that internal means of redress must have been exhausted are cases where staff regulations provide that decisions taken by the executive head of an organisation are not subject to the internal appeal procedure, where there is an inordinate and inexcusable delay in the internal appeal procedure although the person concerned has done everything that could be expected of them to try to obtain a final decision, where for specific reasons connected with the personal status of the complainant she or he does not have access to the internal appeal body or, lastly, where the parties have mutually agreed to forgo this requirement that internal means of redress must have been exhausted (see Judgment 2912, under 6).
In accordance with the Tribunal’s case law regarding compliance with this requirement to exhaust internal means of redress, a complainant may enlarge on the arguments presented before internal appeal bodies, but may not submit new claims to the Tribunal (see Judgment 3420, under 10).
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 2912, 3420
Keywords:
internal remedies exhausted;
Consideration 4
Extract:
[I]t must be recalled that, according to the case law, to satisfy the requirement that internal means of redress have been exhausted laid down in Article VII, paragraph 1, of the Statute of the Tribunal, the complainant must not only follow the prescribed internal procedure for appeal, but must follow it properly and in particular observe any time limit that may be set for the purpose of that procedure (see in particular Judgments 1469, under 16, and 3296, under 10).
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 1469, 3296
Keywords:
internal remedies exhausted;
Judgment 3818
124th Session, 2017
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant has filed an application for review of Judgment 3685.
Consideration 3
Extract:
In Judgment 3685, consideration 6, the Tribunal noted that Article VII, paragraph 1, of its Statute served several related purposes and referred, in particular, to the observations of the Tribunal in Judgment 3222, considerations 9 and 10. But the Tribunal also noted that, in certain circumstances, a complainant can be taken to have exhausted internal means of redress if the internal appeal proceedings were unlikely to end within a reasonable time having regard to the circumstances existing at the time the complaint was filed.
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 3222, 3685
Keywords:
internal remedies exhausted;
Judgment 3792
123rd Session, 2017
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant has filed an application for execution of Judgment 3045.
Consideration 5
Extract:
The Tribunal draws attention to the fact that pursuant to Article VI of its Statute its judgments are “final and without appeal” and that they are therefore “immediately operative”, as established early in its case law (see, in particular, Judgment 82, under 6). The Tribunal subsequently noted that the principle that its judgments are immediately operative is also a corollary of their res judicata authority. International organisations that have recognised the Tribunal’s jurisdiction are bound to take whatever action a judgment may require (see Judgments 553, under 1, 1328, under 12, 1338, under 11, and 3152, under 11). Moreover, “it is well settled that an application for execution may be filed without it being necessary in principle to exhaust internal remedies when the organisation does not execute the judgment, executes it incompletely or tarries unreasonably in its execution” (see Judgments 1771, under 2(b), 1887, under 5, and 2684, under 4). In addition, the Tribunal points out that it is up to the parties to work together in good faith to execute the Tribunal’s judgments so as to ensure that they are executed within a reasonable period of time (see Judgment 2684, under 6).
Reference(s)
ILOAT reference: Article VI of the Statute
ILOAT Judgment(s): 82, 553, 1328, 1338, 1771, 1887, 2684, 3152
Keywords:
internal remedies exhausted; res judicata;
Judgment 3784
123rd Session, 2017
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the calculation of his reckonable previous experience upon recruitment.
Consideration 4
Extract:
The EPO raises receivability as a threshold issue. It asks the Tribunal to note that the version of Article 108 of the Service Regulations then in force required an internal appeal to be lodged within three months from the date on which an appellant became aware of the decision appealed against. The Tribunal has consistently stated that time limits which are provided for lodging internal appeals must be strictly adhered to because they serve the important purposes of ensuring that disputes are dealt with in a timely way so that the rights of parties are known to be settled at a particular point of time efficaciously. In addition, flexibility about time limits should not intrude into the Tribunal’s decision-making even if it might be thought to be equitable or fair in a particular case to allow some flexibility. To do otherwise would “impair the necessary stability of the parties’ legal relations”. However, there are exceptions to this general approach. One is that if the question of receivability was not raised by the organisation in the internal appeal then it cannot be raised in the Tribunal. Another is if the defendant organisation has misled the complainant or concealed some paper from the complainant and thus deprived the complainant of the possibility of exercising her or his right of appeal, in breach of the principle of good faith (see, for example, Judgments 2722, consideration 3, and 3311, considerations 5 and 6).
Reference(s)
Organization rules reference: Article 108 of the Service Regulations
ILOAT Judgment(s): 2722, 3311
Keywords:
internal remedies exhausted; late appeal;
Judgment 3758
123rd Session, 2017
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his non-selection for a post.
Consideration 19
Extract:
Although the motivation for doing so is unknown, the Tribunal finds that […] the Administration acted in bad faith by deliberately misleading the complainant to his detriment. It follows that an exception must be made to the strict adherence to the time limit for lodging the internal appeal against the selection decision for post […]. Accordingly, as the internal appeal to the RBA was receivable as was the appeal to the HBA, the complainant has exhausted the internal means of redress and the present complaint before the Tribunal is receivable.
Keywords:
internal remedies exhausted; late appeal;
Judgment 3737
123rd Session, 2017
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant alleges that he was subjected to harassment.
Consideration 4
Extract:
[T]he ITU contends that the first complaint is irreceivable to the same extent on the grounds that the complainant, contrary to Article VII, paragraph 1, of the Statute of the Tribunal, did not exhaust all the internal remedies provided for in Chapter XI of the Staff Regulations and Staff Rules. However, as the Tribunal has previously ruled, these remedies were not open to former ITU officials under the provisions that were in force at the material time (see Judgments 2892, under 6 to 8, 3139, under 3, or 3178, under 5). The complainant was therefore entitled to come directly before the Tribunal and, contrary to the ITU’s submissions, the fact that he nevertheless filed a request for review of the decision of 13 March 2014 did not oblige him to pursue the resulting internal appeal proceedings until their completion, since he had already left the ITU’s employ on the date when he was notified of that decision (see Judgment 2892 cited above and, a contrario, Judgments 3202, under 10, and 3423, under 7b)).
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 2892, 3139, 3178, 3202, 3423
Keywords:
direct appeal to tribunal; exception; internal remedies exhausted; status of complainant;
Judgment 3717
122nd Session, 2016
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the implied decision to reject his request for review of an Administrative Council’s decision introducing a new career system.
Judgment keywords
Keywords:
complaint dismissed; direct appeal to tribunal; internal remedies exhausted; summary procedure;
Consideration 5
Extract:
The Tribunal’s case law makes it clear that where the Administration takes any action to deal with a claim, by forwarding it to the competent authority for example, 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 (see, for example, Judgment 3428, consideration 18, and 3146, consideration 12).
Reference(s)
ILOAT reference: Article VII, paragraph 3, of the Statute
ILOAT Judgment(s): 3146, 3428
Keywords:
direct appeal to tribunal; internal remedies exhausted;
Judgment 3715
122nd Session, 2016
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the implied decision to reject his appeal challenging the fact that he was not granted a step advancement.
Judgment keywords
Keywords:
complaint dismissed; direct appeal to tribunal; internal remedies exhausted; summary procedure;
Judgment 3714
122nd Session, 2016
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the implied decision of the President of the European Patent Office not to accept the findings of the Medical Committee concerning his invalidity.
Judgment keywords
Keywords:
complaint dismissed; direct appeal to tribunal; internal remedies exhausted; summary procedure;
Considerations 11-13
Extract:
Where a complaint impugning an implied decision does not fulfil the requirements of Article VII, paragraph 3, of the Statute at the time when it is filed, such a deficiency cannot be remedied by simply referring to an express decision taken subsequently to the filing of the complaint. It is only where the initial complaint was receivable under Article VII, paragraph 3, that it can later be viewed as being directed against an express decision taken in the course of the proceedings and on which the parties have been able to comment in their submissions.
The Tribunal has established through its case law that exceptions to the requirement of Article VII, paragraph 1, of the Statute that internal remedies be exhausted will be made only in very limited circumstances, namely where staff regulations provide that the decision in question is not such as to be subject to the internal appeal procedure; where for specific reasons connected with the personal status of the complainant she or he does not have access to the internal appeal body; where there is an inordinate and inexcusable delay in the internal appeal procedure; or, lastly, where the parties have mutually agreed to forgo this requirement that internal means of redress must have been exhausted (see, in particular, Judgments 2912, consideration 6, 3397, consideration 1, and 3505, consideration 1). Moreover, the complainant bears the burden of proving that the above conditions are satisfied, and in this respect it is not enough to simply indicate in the complaint form that she or he impugns an implied rejection.
Furthermore, an argument based on an inordinate and inexcusable delay may be accepted provided that “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 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, for example, Judgments 1486, under 11, 1674, under 6(b), and 2039, under 4 and 6(b), and the cases cited therein).” (See Judgment 3558, consideration 9.)
Reference(s)
ILOAT reference: Article VII, paragraphs 1 and 3, of the Statute
ILOAT Judgment(s): 1486, 1674, 2039, 2912, 3397, 3505, 3558
Keywords:
direct appeal to tribunal; internal remedies exhausted;
Judgment 3706
122nd Session, 2016
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks to impugn his performance appraisal for the period October 2013 to February 2015.
Judgment keywords
Keywords:
complaint dismissed; internal remedies exhausted; summary procedure;
Consideration 3
Extract:
It is firmly established by the case law that a staff member may not on his or her own initiative evade the requirement that internal means of redress must be exhausted before a complaint is filed before the Tribunal (see Judgment 2811, under 10 and 11, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 2811
Keywords:
internal remedies exhausted;
Judgment 3673
122nd Session, 2016
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to renew her fixed-term contract and the subsequent notification that her contract would not be extended to allow her to use her entitlements to certified sick leave.
Judgment keywords
Keywords:
complaint dismissed; internal remedies exhausted; non-renewal of contract; receivability of the complaint;
Judgment 3651
122nd Session, 2016
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to confirm his appointment upon the expiry of his probationary period.
Considerations 5 and 6
Extract:
In Judgment 3311, considerations 5 and 6, the Tribunal reiterated that the time limits for internal appeal procedures serve the important purposes of ensuring that disputes are dealt with in a timely way and the rights of parties are known to be settled at a particular point of time. The Tribunal relevantly rationalized this approach in the following terms: time limits are an objective matter of fact and strict adherence to them is necessary, otherwise the efficacy of the whole system of administrative and judicial review of decisions potentially adversely affecting the staff of international organisations would be put at risk. Flexibility about time limits should not intrude into the Tribunal’s decision-making even if it might be thought to be equitable or fair in a particular case to allow some flexibility. To do otherwise would “impair the necessary stability of the parties’ legal relations” (see Judgment 2722, consideration 3). However, there are some exceptions to this general approach, which have been expressed in the Tribunal’s case law.
Additionally, however, Manual paragraph 331.3.31 provides that the Appeals Committee may consider an appeal that has been filed out of time to be receivable if it finds that the failure to abide by the time-limit was for a reason that was outside of the complainant’s control and the length of the delay in filing was reasonable in the circumstances of the case.
The complainant only states that his appeal was hampered because upon being separated from service, the FAO discontinued his email account and that this action delayed his preparation of the appeal. It is however noted that the FAO re-activated the complainant’s account a week later for thirty days. As the Appeals Committee found, this circumstance did not justify the late filing of the complainant’s appeal some two and a half months after his account was restored. Accordingly, the complaint is irreceivable, under Article VII, paragraph 1, of the Statute of the Tribunal, as the complainant has not exhausted the internal means of appeal and has failed to submit his appeal to the Director-General within the prescribed time limit required by Staff Rule 303.1.311. The complaint will therefore be dismissed in its entirety.
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 2722, 3311
Keywords:
internal remedies exhausted; late appeal; late filing; receivability of the complaint; time bar;
Judgment 3646
122nd Session, 2016
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision of the Director General not to allow him to proceed directly to the Tribunal in respect of his appeal against WIPO’s alleged failure to ensure that he was not subjected to intimidation, offensive behaviour or aggression.
Consideration 8
Extract:
Situations can arise where the Tribunal entertains and adjudicates on a complaint where the complainant has not exhausted internal remedies but it is apparent that the internal appeal process has paralysed the exercise of the complainant’s rights (see, for example, Judgment 2039, consideration 4). However, mere dissatisfaction with the composition of the internal appeal body does not found a right to bring a complaint directly to the Tribunal (see Judgment 3190, consideration 9). Nothing advanced by the complainant establishes that he is entitled to bring his grievance directly to the Tribunal. It is true that his grievance, in the most general sense, has subsisted for many years and has already twice been considered by the Tribunal. But that fact does not absolve the complainant from satisfying the requirement in Article VII, paragraph 1, of the Tribunal’s Statute that the impugned decision is a final decision and that the complainant has exhausted the internal means of redress.
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 2039, 3190
Keywords:
direct appeal to tribunal; internal remedies exhausted; receivability of the complaint;
Judgment 3561
121st Session, 2016
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks a review of Judgment 3141 on the basis that a new fact has allegedly come to light.
Consideration 6
Extract:
"[T]he condition that internal means of redress must be exhausted would in any case not apply in respect of compensation for damage related to the length of proceedings (see, for example, Judgments 2744, under 6, and 3429, under 4)."
Reference(s)
ILOAT Judgment(s): 2744, 3429
Keywords:
direct appeal to tribunal; internal remedies exhausted; moral injury;
Judgment 3505
120th Session, 2015
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to extend her sick leave entitlement beyond the date on which her appointment expired.
Consideration 1
Extract:
"Article VII, paragraph 1, of the Statute of the Tribunal states that “[a] complaint shall not be receivable unless the decision impugned is a final decision and the person concerned has exhausted such means of resisting it as are open to him under the applicable Staff Regulations”. The only exception allowed to this rule is where staff regulations provide that the decision in question is not such as to be subject to the internal appeal procedure, where for specific reasons connected with the personal status of the complainant he or she does not have access to the internal appeal body, where there is an inordinate and inexcusable delay in the internal appeal procedure, or, lastly, where the parties have mutually agreed to forgo this requirement that internal means of redress must have been exhausted (see, in particular, Judgment 2912, under 6, and the case law cited therein, or Judgment 3397, under 1)."
Reference(s)
ILOAT Judgment(s): 2912, 3397
Keywords:
internal remedies exhausted;
Judgment 3489
120th Session, 2015
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision that his 2010 Performance Review Report shall be redone from the beginning and that a decision regarding an amendment to his contract extension from three to five years will be contingent on the outcome of the new Report.
Consideration 9
Extract:
"[T]he Tribunal held in Judgment 3080, under 25, that the provision of Article VII, paragraph 1, of the Tribunal’s Statute, which requires all internal means of redress to be exhausted, does not apply to a claim for compensation for moral injury. The Tribunal restates that moral damages constitute a claim for consequential relief which the Tribunal has the power to grant in all circumstances."
Reference(s)
ILOAT Judgment(s): 3080
Keywords:
internal remedies exhausted; moral injury;
Judgment 3465
119th Session, 2015
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The Tribunal summarily dismissed the complaint for failure to exhaust internal means of redress.
Judgment keywords
Keywords:
complaint dismissed; internal remedies exhausted; summary procedure;
Consideration 3
Extract:
"The Tribunal finds that there is no evidence in the file that the Appeals Committee of the Administrative Council allowed the complainant to be substituted for the previous Chairperson of the Staff Committee in the appeal she had filed. Indeed, on the material before the Tribunal, it appears that the previous Chairperson withdrew her appeal. Nor is there any evidence that the complainant has received a final decision, directed to him, on that appeal. In these circumstances, it must be considered that he has failed to exhaust the internal means of redress as required under Article VII, paragraph 1, of the Statute of the Tribunal. His complaint is therefore clearly irreceivable [...]."
Keywords:
internal remedies exhausted;
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