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Implied decision (36, 37,-666)
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Keywords: Implied decision
Total judgments found: 86
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Judgment 5203
141st Session, 2026
The Pacific Community
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, on the basis of Article VII, paragraph 3, of the Statute of the Tribunal, challenges what he considers to be an implied decision rejecting his request for further review of 6 April 2024.
Considerations 4-5
Extract:
«L’article VII, paragraphe 3, du Statut du Tribunal prévoit que, «[a]u cas où l’administration, saisie d’une réclamation, n’a pris aucune décision touchant ladite réclamation dans un délai de soixante jours à dater du jour de la notification qui lui en a été faite, l’intéressé est fondé à saisir le Tribunal, et sa requête est recevable au même titre qu’une requête contre une décision définitive. Le délai de quatre-vingt-dix jours [pour saisir le Tribunal] prévu [à l’article VII, paragraphe 2] est compté à dater de l'expiration du délai de soixante jours imparti à l'administration pour prendre une décision.» […] Le Tribunal considère que c’est à tort que le requérant s’appuie sur l’article VII, paragraphe 3, de son Statut. Il ressort clairement des dossiers que l’intéressé a reçu deux réponses de l’administration – les 10 avril et 8 mai 2024 – concernant sa demande de second réexamen du 6 avril 2024, soit dans un délai de soixante jours suivant la notification de cette demande. Ces réponses étaient suffisantes pour faire obstacle à la naissance d’une décision implicite de rejet susceptible d’être attaquée en vertu de l’article VII, paragraphe 3, du Statut du Tribunal (voir le jugement 4911, au considérant 4, et la jurisprudence qui y est citée). »
Reference(s)
ILOAT Judgment(s): 4911
Keywords:
iloat statute; implied decision; receivability of the complaint;
Judgment 5192
141st Session, 2026
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the implied rejection of his request for an investigation of his complaint of institutional harassment.
Judgment keywords
Keywords:
complaint dismissed; harassment; implied decision; institutional harassment; receivability of the complaint;
Consideration 3
Extract:
“The complainant characterizes his complaint as a challenge to an implied decision by virtue of Article VII, paragraph 3, of the Tribunal’s Statute […] the complainant’s reliance on Article VII, paragraph 3, is misplaced. As the Tribunal recalled, for example, in Judgments 4975, consideration 4, 4271, consideration 3, 4174, consideration 4, and 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 Tribunal’s Statute, which forestalls an implied rejection that could be referred to the Tribunal.”
Reference(s)
ILOAT Judgment(s): 3975, 4174, 4271, 4975
Keywords:
implied decision; receivability of the complaint;
Consideration 4
Extract:
“It is true that in some instances where an express decision was adopted during the proceedings before the Tribunal, the Tribunal recharacterized a complaint initially directed against an implied decision of rejection, treating it as a complaint addressed against the express decision adopted in the interim […] However, in the present case, the Tribunal considers that such a recharacterization is not feasible. First, a recharacterization of the original complaint implies it is receivable, which is not the case here. Second, the complainant has acknowledged the existence of the new express decision […] in his rejoinder. Nevertheless, he has insisted that this new decision is not an obstacle to the adjudication of his complaint against the impugned decision and has not specifically challenged the new decision, as he could have done. He does not submit specific pleas against the [express] decision. Unlike […] for example, […] Judgment 4769 […], in the present case, there is no challenge to the new decision. As a result, the Tribunal cannot determine the case on the merits.”
Reference(s)
ILOAT Judgment(s): 4769
Keywords:
express decision; implied decision; receivability of the complaint;
Judgment 5191
141st Session, 2026
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the implied rejection of his request for reimbursement of the costs he incurred in the proceedings before the Enlarged Board of Appeal.
Consideration 5
Extract:
“It has long been the case that when a proceeding initially concerns an implied decision but subsequently an express decision is made, the Tribunal will treat the express decision as the operative decision – provided that the complaint is receivable ab initio – and it will consider that it is appropriate to treat the complaint as being directed against the latter decision, which, in this case, is dated 13 December 2017 (see, for example, Judgments 4820, consideration 6, 4819, consideration 3, and the case law cited therein). While in this case the express decision is wider in scope than the substantive implied decision rejecting the complainant’s request for reimbursement of the costs he incurred […], it nonetheless encompasses the subject matter of the substantive implied decision and resolves the question of costs as claimed. Thus, there is a decision rejecting the complainant’s claim for reimbursement of costs […].”
Reference(s)
ILOAT Judgment(s): 4819, 4820
Keywords:
claim moot; express decision; implied decision; receivability of the complaint;
Judgment 5169
141st Session, 2026
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reduce her “travelling expenses” pursuant to Office Notice No. 18/20 of 24 July 2020.
Consideration 4
Extract:
[C]omme il a d’ailleurs déjà été dit au regard de comportements similaires d’Eurocontrol dans le cadre de situations semblables, le Tribunal considère que la requérante a été induite en erreur par l’Organisation lorsque cette dernière lui a indiqué que, en raison de la transmission de sa réclamation à la Commission paritaire des litiges, elle devait, conformément à la jurisprudence du Tribunal relative à l’application de l’article VII, paragraphe 3, de son Statut, attendre la décision définitive du Directeur général avant de pouvoir saisir le Tribunal. Ce faisant, l’Organisation a en effet omis de tenir compte de ce que, en application du paragraphe 2 de l’article 92 du Statut administratif, le défaut de réponse du Directeur général à une réclamation dans un délai de quatre mois à partir du jour de l’introduction de celle-ci vaut par ailleurs lui-même décision implicite de rejet susceptible d’être attaquée devant le Tribunal (voir à ce sujet, par exemple, les jugements 4820, au considérant 6, et 4819, au considérant 3).
Il n’y a donc pas lieu de déclarer la requête irrecevable pour tardiveté en ce qu’elle a été déposée alors qu’elle ne pouvait être dirigée que contre une décision de rejet implicite de la réclamation de la requérante. Statuer en sens contraire reviendrait en effet à priver indûment l’intéressée de son droit de saisir le Tribunal en raison du seul comportement de l’Organisation.
En outre, compte tenu du délai de près de deux ans qui s’était écoulé entre l’introduction de la réclamation de la requérante, le 20 octobre 2020, et le dépôt de sa requête, le 8 septembre 2022, et du fait qu’elle avait procédé, en vain, à des relances auprès du Directeur général et du président de la Commission paritaire des litiges, le Tribunal considère que l’intéressée était confrontée à une paralysie de la procédure de recours interne lui permettant de saisir directement le Tribunal (voir notamment, pour des cas de figure analogues impliquant Eurocontrol, les jugements 5034, aux considérants 3 et 4, 4820, au considérant 3, et 4819, au considérant 3).
Le Tribunal observe du reste que l’Organisation est plutôt malvenue de reprocher à la requérante de ne pas avoir épuisé les voies de recours interne alors que c’est elle-même qui a enfreint les dispositions de son propre Statut administratif en ne traitant pas le recours formé par l’intéressée dans les délais prescrits et avec diligence.
Reference(s)
ILOAT Judgment(s): 4819, 4820, 5034
Keywords:
failure to exhaust internal remedies; implied decision; paralyzed internal procedure;
Consideration 5
Extract:
Le Tribunal relève [...] qu’une décision définitive a finalement été prise par la chef de l’Unité des ressources humaines et services le 14 décembre 2022 et que cette décision a été produite en cours de procédure, de même que l’avis de la Commission paritaire des litiges y relatif. Dès lors que le Tribunal est en possession d’un dossier complet et que les parties ont eu la possibilité de s’exprimer pleinement dans leurs écritures au sujet de cette décision de rejet explicite de la réclamation de la requérante du 20 octobre 2020, il estime que, conformément à sa jurisprudence, il y a lieu de requalifier la requête comme étant dirigée contre cette dernière décision du 14 décembre 2022 (voir notamment, pour des cas de figure similaires impliquant en particulier Eurocontrol, les jugements 4820, au considérant 6, 4819, au considérant 3, 4769, au considérant 3, et 4768, au considérant 3).
Reference(s)
ILOAT Judgment(s): 4768, 4769, 4819, 4820
Keywords:
absence of final decision; express decision; final decision; implied decision; receivability of the complaint;
Judgment 5167
141st Session, 2026
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the new calculation of his pension entitlements following the implementation of reduction coefficients compensating for salary increases.
Consideration 2
Extract:
While it is acknowledged that the express decision of 18 May 2020 was adopted by the Head of HRS and not by the Director General, as it ought to have been in accordance with Article 91(2) of the GCE, the Tribunal holds that the complainant was entitled to identify the 18 May 2020 decision as the final one on his complaint, given that the Organisation failed to give him clear indications as to the nature of this decision, which therefore appeared to be a challengeable decision as it was a decision with legal effects on the complainant.
Additionally, and in any event, no express decision by the Director General was adopted on his 5 March 2020 internal complaint within the four-month time limit set forth in Article 91(2) of the GCE. This period had commenced on 5 March 2020 and it had expired on 5 July 2020, before the filing of the present complaint with the Tribunal, within the 90-day time limit. Accordingly, in keeping with Article 91(2), last paragraph, of the GCE, the failure by the Director General to adopt an express decision within four months from 5 March 2020, constitutes “an implied decision rejecting” the complaint, which is amenable to challenge before the Tribunal (see Judgment 4769, consideration 2).
As such, the Tribunal will entertain the present complaint as a complaint filed against a final decision […].
Reference(s)
ILOAT Judgment(s): 4769
Keywords:
direct appeal to tribunal; final decision; implied decision;
Consideration 3
Extract:
After the filing of the present complaint, on 16 June 2022, Eurocontrol adopted an express decision on the complainant’s internal complaint of 5 March 2020. In the 16 June 2022 decision, the Director General, endorsing the opinion expressed by the Joint Committee for Disputes at a meeting held on 19 November 2020 and signed on 6 December 2021, rejected the complaint as “inadmissible and subsidiarily unfounded”.
The complainant was permitted by the Tribunal to comment upon this new decision, and, on 25 July 2025, he submitted further written submissions whereby he contested the opinion of the Joint Committee for Disputes and reiterated, in essence, the pleas contained in his brief.
The Tribunal observes that the complainant’s claims to the Tribunal remained fundamentally unchanged after the new rejection decision. Since the parties had the opportunity to comment on the new decision, the Tribunal considers it appropriate to treat the complaint as if it were also directed against the new decision (see Judgments 4769, consideration 3, 4660, consideration 6, 4065, consideration 3, and 2786, consideration 3).
Reference(s)
ILOAT Judgment(s): 2786, 4065, 4660, 4769
Keywords:
express decision; final decision; implied decision; impugned decision;
Judgment 5000
139th Session, 2025
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the “deemed rejection” of his request for an investigation into the alleged misconduct of the Assistant Director-General at the WHO Headquarters in Geneva; the determination by the Office of Compliance, Risk Management and Ethics that he had not suffered retaliation, and that he was not entitled to protection against retaliation; and WHO’s decision to accept his resignation which he claims constitutes constructive dismissal.
Consideration 22
Extract:
[T]he complainant contends that the Organization implicitly rejected his request for an investigation into Mr G. for retaliation, unethical conduct and conflict of interest. […] The Tribunal notes that the complainant reported the matter to IOS on 5 November 2020 and to the United Nations Office of Internal Oversight Services (UN/OIOS) on 6 December 2020; on 23 December 2020, he consented to the UN/OIOS sharing his report with IOS. There is no evidence in the record that IOS issued an implied decision containing a refusal to investigate. The IOS decision was adopted later, on 24 May 2023, and the complainant was notified on 28 July 2023 that the case had been closed. On 25 September 2023, he filed a separate request for review of this decision which was still pending at the time of the filing of the present complaint. Thus, on the one hand, the 24 May 2023 decision to close the investigation into Mr G. is outside the scope of the present complaint, and, on the other hand, the claim that the Organization implicitly rejected his request for investigation, is irreceivable for lack of a challengeable decision at the time this complaint was filed.
Keywords:
implied decision; investigation; parallel proceedings; receivability of the complaint;
Judgment 4955
139th Session, 2025
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject, on grounds of irreceivability, his compensation claims for what he considers to be a service-incurred illness.
Consideration 4
Extract:
[On 22 February 2021, the complainant filed the present complaint before the Tribunal, being directed against what he considers to be an implied decision of rejection of his counsel’s letter of 21 December 2020.] It is clear from the contents of the 31 July 2019 letter from the complainant and of the 22 December 2020 letter from his counsel that both communications constituted requests that the same 16 July 2019 decision be reviewed. Even if the complainant’s 31 July 2019 request to “reverse the [16 July 2019] decision” were to be regarded as having been made and dealt with under Articles 40 and 41 of Appendix D, the evidence shows that, at the time of the 22 December 2020 letter, and when he filed his complaint before the Tribunal, the complainant had already been issued on 2 December 2020 with a decision on his request for reconsideration of the 16 July 2019 decision, thus providing him with a final decision on his compensation claims pursuant to Article 42 of Appendix D. […] [P]ursuant to Staff Rule 12.02.1(D), the 2 December 2020 decision is the decision that the complainant, being a former staff member at the time when it was taken, should have impugned before the Tribunal within the ninety-day time limit prescribed by its Statute. He did not do so. It follows that the aspects of the complaint involving the complainant’s 26 June 2019 compensation claims made under Appendix D are irreceivable.
Keywords:
failure to exhaust internal remedies; final decision; implied decision; internal remedies exhausted; internal remedies not exhausted;
Judgment 4905
138th Session, 2024
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to set the rate of deterioration of physical health resulting from an occupational accident at only 15 per cent and, consequently, to award him the sum of 11,874.60 Swiss francs as an indemnity for deterioration of physical health.
Consideration 7
Extract:
The Tribunal notes that the email of 27 August 2021 is not presented as a formal decision but as a request to sign a receipt in order to allow the complainant to be paid the sum of 11,874.60 euros. The fact remains, however, that it was in fact through this email that he learned of the amount that CERN considered it should pay him as an indemnity for deterioration of his physical health. However, that amount had evidently been calculated on the basis of a rate of deterioration of physical health set at 15 per cent – even though that rate was not explicitly stated in the email or in the documents appended to it.
It follows that a decision must necessarily have been taken previously, following the aforementioned letter of 21 April 2021,
setting the abovementioned rate at 15 per cent, even though, in view of the evidence on file, that decision was apparently not formalised in a written document. Consequently, since the complainant was informed of the existence of such a decision for the first time, implicitly and indirectly, by the aforementioned email of 27 August 2021, the Tribunal considers that the complainant had no other option but to challenge both the established rate of deterioration of physical health and the amount of the resulting indemnity following that email of 27 August 2021.
Keywords:
implied decision; receivability of the complaint;
Judgment 4861
138th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the alleged failure to investigate his harassment complaint.
Consideration 9
Extract:
The Tribunal notes that none of [the cited rules] provide for strict time limits for the investigation and finalization of the proceedings. Therefore, the mere effluxion of time cannot be construed as an express or implied rejection of a complaint of harassment and retaliation.
Keywords:
implied decision;
Judgment 4847
138th Session, 2024
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the rejection of her appeal against an implied decision not to compensate her for alleged constructive dismissal.
Considerations 5-7
Extract:
Given the centrality of Judgment 532 to the approach of the Appeals Board, it is desirable to discuss what the Tribunal decided. The relevant facts in that matter may be briefly stated. The genesis of the complainant’s grievance was deductions from his salary for periods when he was on strike, which he said had been wrongly deducted. The complainant appealed against the alleged wrongful deduction on 20 June 1981. The appeal was not decided within two months, namely by 20 August 1981, as required by the Service Regulations for permanent employees of the European Patent Office, and the complainant challenged in the Tribunal the implied rejection of his claims in a complaint filed on 17 November 1981. Earlier, on 30 October 1981, the President of the Office wrote to the complainant saying that as his claims were refused, the matter would be passed on to the Appeals Committee.
In Judgment 532, the Tribunal took the view that the letter of 30 October 1981 had two legal consequences. One was that it was a decision within the meaning of Article VII, paragraph 3, of the Tribunal’s statute. Accordingly, and secondly, there was an express decision on his claim. In those circumstances, the Tribunal said that from 30 October 1981, “the complainant could no longer properly challenge any implied decision”, Article VII, paragraph 3, did not apply and under Article VII, paragraph 1, the complaint was irreceivable because internal means of redress had not been exhausted. The Tribunal accepted that until the President sent his letter of 30 October 1981 the “complainant could have filed a complaint by virtue of Article VII (3)” but said “[i]n any event, since an express decision was taken on 30 October, there has been no question since then of challenging any implied decision”.
[I]t is a persuasive authority and there is an underlying legitimate rationale for requiring a complainant to challenge only an express decision, if made after an implied decision and before the challenge was initiated. It is true that the Tribunal eschews undue formality in relation to process (see Judgments 3845, consideration 4, 3759, consideration 6, and 3592, consideration 3). But by facilitating a challenge to an implied decision in the face of an express decision made before the challenge was initiated, the Tribunal would potentially create a licence for a complainant to challenge the relevant decision (on the assumption that both the implied and express decision deal with the same subject matter) without necessarily having to confront the reasons likely to have been given in the express decision and require the internal appeal body to consider and evaluate those reasons. As the Appeal Board clearly seems to suggest, this would be antithetical to the interests of the internal justice system.
Reference(s)
ILOAT Judgment(s): 532, 3592, 3759, 3845
Keywords:
express decision; implied decision; internal appeal; receivability of the complaint;
Judgment keywords
Keywords:
complaint dismissed; constructive dismissal; implied decision; receivability of the complaint;
Judgment 4830
138th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the implied decision dismissing his request for his administrative situation to be regularised, the decision ordering his transfer, the decision to award him a special post allowance in that it excluded a certain period and the amount in question was insufficient, and the decision announcing his promotion in that it was not retroactive and did not place him on step 7 of grade G.4.
Consideration 6
Extract:
[T]he Tribunal notes that, in his letter of 12 December 2018 addressed to the Secretary-General, the complainant based his claims on administrative decisions that he did not challenge within the period prescribed by [...] Staff Rule 11.1.2. It is clear from the evidence that the complainant did not submit a request for reconsideration in respect of his job description or his transfer when he was transferred on 1 January 2014 [...]. Neither did he submit a request for reconsideration in respect of the payslips which he subsequently received every month.
The Tribunal cannot accept the complainant’s argument that his request of 12 December 2018 was not time-barred because its purpose was to obtain compensation for the whole of the injury he allegedly suffered for the period from 1 January 2013 to 1 March 2020, and that actions of this type are not, as such, subject to any particular time limit.
The Tribunal considers this manner of presenting the case contrived, because, in a dispute involving a challenge to individual decisions, as here, compensation for injury arising from the alleged unlawfulness of such decisions could only be granted as a consequence of their setting aside, which presupposes by definition that they have been challenged within the applicable time limit. Endorsing the complainant’s argument would have the effect of authorising an organisation’s staff members in practice to evade the effects of the rules on time limits for filing appeals by allowing them to seek compensation at any time for the injury caused to them by an individual decision, even though they did not challenge that decision in time. Such a situation would scarcely be permissible having regard to the requirement of stability of legal relations which, as the Tribunal regularly points out in its case law, is the very justification for time bars (see, for example, Judgments 4742, consideration 9, and 4655, consideration 15).
It follows that the complaint is irreceivable to the extent that it concerns the implied decision dismissing his request of 12 December 2018 for his administrative situation to be regularised, because he failed to exhaust the internal means of redress as required by Article VII, paragraph 1, of the Statute of the Tribunal.
Reference(s)
ILOAT Judgment(s): 4655, 4742
Keywords:
compensation; failure to exhaust internal remedies; implied decision; internal remedies exhausted; internal remedies not exhausted; receivability of the complaint; time bar; time limit;
Judgment 4820
138th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to dismiss his moral harassment complaints, and claims compensation for the injury which he considers he has suffered.
Considerations 6-7
Extract:
Insofar as the complaint is directed against the decision of the Director General to dismiss the complainant’s first complaint for moral harassment against Mr P.H. as unfounded, the Tribunal notes the following:
(a) Where the Administration takes any action to deal with a claim, by forwarding it to the competent internal appeal body for example, this step in itself constitutes a “decision upon the claim” within the meaning of Article VII, paragraph 3, of the Statute of the Tribunal, which forestalls an implied rejection that could be referred to the Tribunal (see, for example, Judgments 3715, consideration 4, 3428, consideration 18, and 3146, consideration 12).
(b) Under Article 92(2) of the Staff Regulations, the complainant should have filed a complaint before the Tribunal within 90 days from the expiry of the four-month time limit for the Administration to respond to his internal complaint, even if the matter had been referred to the Joint Committee for Disputes. The present complaint should therefore, in principle, be declared irreceivable as time-barred under Article VII, paragraph 2, of the Statute of the Tribunal, combined with Article 92(2) of the Staff Regulations.
(c) However, in this case, the Tribunal considers that the complainant was misled by the Organisation when it indicated to him that, since his internal complaint had been referred to the Joint Committee for Disputes, he had, in accordance with the Tribunal’s case law on the application of Article VII, paragraph 3, of its Statute, to await the final decision of the Director General before being able to file a complaint with the Tribunal. By so doing, the Organisation overlooked the fact that, pursuant to Article 92(2) of the Staff Regulations, failure by the Director General to respond to an internal complaint within four months from the date on which it was lodged shall be deemed to constitute an implied decision rejecting it, which may be impugned before the Tribunal. There is no need to declare the complaint irreceivable as time-barred, insofar as it is directed against an implied decision to reject from the Director General. To rule otherwise would amount to unduly depriving the complainant of his right to refer the matter to the Tribunal solely due to the conduct of the Organisation.
(d) The Tribunal observes that, while the complainant’s failure to comply with the 90-day time limit to file a complaint with the Tribunal is recognized above as admissible due to the fact that he was wrongly informed by the Organisation that he had to await an express decision, the complainant did not wait for this decision to be issued before filing his complaint. The complaint should therefore, in principle, be declared irreceivable for failure to exhaust internal means of redress, as required by Article VII, paragraph 1, of the Statute of the Tribunal. However, in this case, taking into account the period of one year and seven months that had elapsed between 5 June 2020, when the complainant filed his internal complaint, and 7 February 2022, when he filed his complaint with the Tribunal, and the fact that his counsel had followed up, to no avail, with the Director General, the Tribunal considers that the complainant was faced with a paralysis of the internal appeal procedure that would allow him to proceed directly to it. Under the Tribunal’s case law, a complainant is entitled to file a complaint directly with the Tribunal against the initial decision which she or he intends to challenge where the competent bodies are not able to determine the internal appeal within a reasonable time having regard to the circumstances, provided that 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 final decision within a reasonable time (see, for example, Judgments 4660, consideration 2, 4271, consideration 5, 4268, considerations 10 and 11, 4200, consideration 3, 3558, consideration 9, 2039, consideration 4, or 1486, consideration 11).
(e) In addition, the Tribunal notes that a final decision was ultimately taken by the Director General on 12 May 2022, as was the opinion of the Joint Committee for Disputes relating thereto, and that that decision was issued in the course of proceedings. Since the Tribunal has the complete dossier in its possession and the parties have had the opportunity to comment fully in their written submissions on the express decision to reject the complainant’s internal complaint of 5 June 2020, and thus on the decision to reject the first harassment complaint inasmuch as it was directed against Mr P.H., it considers that, in accordance with its case law, it is appropriate to treat the internal complaint as being directed against the latter decision of 12 May 2022 (see in particular, for similar cases, Judgments 4769, consideration 3, 4768, consideration 3, 4660, consideration 6, 4065, consideration 3, and 2786, consideration 3).
The present complaint is, accordingly, receivable insofar as it challenges the lawfulness of the Director General’s decision of 12 May 2022 to reject, as unfounded, the first moral harassment complaint directed against Mr P.H. It will therefore be examined from this standpoint by the Tribunal.
Reference(s)
ILOAT Judgment(s): 1486, 2039, 2786, 3146, 3428, 3558, 3715, 4065, 4200, 4268, 4271, 4660
Keywords:
absence of final decision; administrative delay; case law; delay; direct appeal to tribunal; exception; express decision; iloat statute; implied decision; impugned decision; internal appeal; internal remedies exhausted; judicial review; reasonable time; receivability of the complaint; staff member's duties; time limit;
Judgment 4814
137th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who was the subject of an investigation into allegations of harassment and abuse of authority, alleges that she received no reply, within the sixty-day time limit, to the claim submitted to the Director-General regarding “multiple conflicts of interest” of the Internal Oversight Service.
Consideration 6
Extract:
Firstly, the Tribunal considers that the complainant’s reliance on Article VII, paragraph 3, of its Statute is misplaced. It is clear from her submissions that the request made by her counsels in their letter of 1 December 2022 addressed to the Director-General, which had been submitted for the first time on 18 November 2022, had already been considered and explicitly rejected by the DDG on 25 and 29 November 2022. The fact that this request was subsequently escalated to the Director-General does not alter the conclusion that the Administration had already taken a decision on it, thus excluding the application of Article VII, paragraph 3, of the Tribunal’s Statute.
Keywords:
direct appeal to tribunal; failure to exhaust internal remedies; implied decision; summary procedure;
Judgment 4812
137th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant requests moral and material damages for the harm she allegedly suffered as a result of her supervisor’s behaviour and the unduly extended length of time of the investigation.
Considerations 7-8
Extract:
Article VII, paragraph 3, of the Tribunal’s Statute relevantly provides that “[w]here the Administration fails to take a decision upon any claim of an official within sixty days from the notification of the claim to it, the person concerned may have recourse to the Tribunal and her or his complaint shall be receivable in the same manner as a complaint against a final decision”.
In the present case, […] the complainant’s claim to be granted redress for the actions of her supervisor and the time taken to complete the investigation was rejected by a decision of 9 November 2021, which then became the subject of her internal appeal. Thus, although there may have been some delay on the part of the Director-General in taking the final decision on that appeal, she is obviously not in the situation contemplated by Article VII, paragraph 3, of the Tribunal’s Statute.
Keywords:
direct appeal to tribunal; failure to exhaust internal remedies; implied decision; summary procedure;
Judgment 4775
137th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to “terminate [her] contract after [her] resignation”.
Consideration 4
Extract:
While Article VII, paragraph 3, of the Tribunal’s Statute, allows for direct recourse to the Tribunal “[w]here the Administration fails to take a decision upon any claim of an official within sixty days from the notification of the claim to it”, this paragraph must be read in conjunction with paragraph 1 of Article VII. According to Article VII, paragraph 1, of the Statute of the Tribunal, “[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 follows that the Tribunal cannot hear a complaint against an implicit decision to reject a claim unless the complainant has exhausted all available internal remedies (see Judgments 4517, consideration 4, and 2631, consideration 3).
Reference(s)
ILOAT Judgment(s): 2631, 4517
Keywords:
direct appeal to tribunal; failure to exhaust internal remedies; implied decision; internal remedies not exhausted;
Judgment 4769
137th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns what he refers to as decisions concerning Eurocontrol Agency’s reorganisation, and his transfer following that reorganisation.
Consideration 3
Extract:
[T]he complainant raised the point that, after he had filed his complaint with the Tribunal, [...] the Joint Committee for Disputes eventually issued its opinion on his internal complaint. This led to a decision explicitly rejecting that internal complaint, taken on 10 December 2021 [...].
[...] Since the parties had the opportunity to comment fully in their submissions on the decision expressly rejecting the complainant’s internal complaint, the Tribunal considers it appropriate to treat the complaint as if it were directed against that decision (for similar cases, see, in particular, Judgments 4660, consideration 6, 4065, consideration 3, and 2786, consideration 3).
Reference(s)
ILOAT Judgment(s): 2786, 4065, 4660
Keywords:
express decision; implied decision; impugned decision;
Judgment 4768
137th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns what he refers to as decisions concerning Eurocontrol Agency’s reorganisation and his transfer following that reorganisation.
Consideration 3
Extract:
[T]he complainant raised the point that, after he had filed his complaint with the Tribunal, [...] the Joint Committee for Disputes eventually issued its opinion on his internal complaint [...]. This led to the Director General taking the decision [...] explicitly rejecting that internal complaint [...].
Since the parties had the opportunity to comment fully in their submissions on the decision expressly rejecting the complainant’s internal complaint, the Tribunal considers that, in accordance with its case law, it is appropriate to treat the complaint as if it were directed against that decision (for similar cases, see, in particular, Judgments 4660, consideration 6, 4065, consideration 3, and 2786, consideration 3).
Reference(s)
ILOAT Judgment(s): 2786, 4065, 4660
Keywords:
express decision; implied decision; impugned decision;
Judgment 4693
136th Session, 2023
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision of the Director-General dismissing as irreceivable his internal appeal against an “implied decision” by the Organization not to provide him with any Terms of Reference or work from 10 September 2016 until 31 December 2018, when he separated from service upon reaching the mandatory retirement age.
Judgment keywords
Keywords:
complaint dismissed; implied decision;
Consideration 8
Extract:
In the usual case, the following reflects the case law concerning an implied decision. In Judgment 3089, consideration 7, the Tribunal said:
“An implied decision occurs only when a person who has submitted a claim is entitled to treat delay, inactivity, or some other failure, as constituting a decision to reject his or her claim and elects to do so.”
The concept of a claim involves the assertion of an unsatisfied right to a benefit or entitlement under the terms of appointment or the staff rules and regulations and its rejection entails the refusal to pay the benefit or grant the entitlement either in whole or in part. As this passage says, the refusal may arise by implication based on delay, inactivity or other failure. The Tribunal has accepted that a member of staff has a right to be provided with work (see Judgments 3937, 2360 and 630). In Judgment 3377, consideration 13, this was found to be harassment.
Reference(s)
ILOAT Judgment(s): 630, 2360, 3089, 3377, 3937
Keywords:
implied decision;
Judgment 4692
136th Session, 2023
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of his appeal against an implied decision not to respond to a complaint he had lodged with the Office of the Inspector General.
Judgment keywords
Keywords:
complaint dismissed; failure to answer claim; implied decision;
Judgment 4118
127th Session, 2019
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the findings of the Medical Committee according to which his invalidity is not of occupational origin.
Consideration 3
Extract:
Even if the Tribunal were to accept to regard the claims in question as being directed against the [...] decision of 12 July 2007, they would still be irreceivable, since they would be time-barred. Indeed, it has been established that the complainant did not impugn the said decision before the Tribunal within the period of ninety days provided for in Article VII, paragraph 2, of the Tribunal’s Statute. The decision therefore became final, and the complainant could no longer seek to challenge it in his request of 30 April 2015, almost eight years later. As a result, on this issue, the implied decision of the President of the Office to reject that request must be considered as purely confirmatory of the earlier decision of 12 July 2007. As such, it could not set off a new time limit for an appeal by the complainant (see, for example, Judgments 698, consideration 7, 1304, consideration 5, 2449, consideration 9, or 3002, consideration 12).
Reference(s)
ILOAT Judgment(s): 698, 1304, 2449, 3002
Keywords:
confirmatory decision; implied decision; new time limit; receivability of the complaint; time bar; time limit;
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