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Final decision (657, 27, 28, 30, 545,-666)
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Keywords: Final decision
Total judgments found: 92
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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 4952
139th Session, 2025
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the IAEA’s decision not to award him moral damages for its alleged mishandling of his Appendix D claim, namely his claim to have his illnesses recognised as service-incurred.
Judgment keywords
Keywords:
complaint dismissed; final decision; receivability of the complaint; step in the procedure;
Judgment 4947
139th Session, 2025
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: Le requérant conteste les décisions de rejeter ses demandes tendant à ce que l’exécution de la décision de le suspendre avec maintien de son traitement et avec effet immédiat, ainsi que des décisions de prolonger cette mesure, soit suspendue en attendant l’issue des procédures de recours interne.
Consideration 7
Extract:
Le Tribunal rappelle que les règles de recevabilité des requêtes présentées devant lui sont déterminées exclusivement par son propre Statut (voir, par exemple, les jugements 4126, au considérant 3 ou 3889, au considérant 3). Dès lors que les trois décisions attaquées, qui sont des décisions finales en vertu de la règle 111.4, sont définitives au sens de l’article VII, paragraphe 1, du Statut du Tribunal, le Tribunal considère que la fin de non-recevoir soulevée par la CPI doit être rejetée.
Dans le jugement 3860, le Tribunal a écarté un argument semblable et conclu que le rejet d’une demande de suspension faite en vertu du paragraphe b) de cette règle 111.4 constituait bien une décision définitive aux termes de son Statut. Aux considérants 4, 5 et 6 de ce jugement, le Tribunal a ainsi souligné ce qui suit à ce sujet:
«4. La première question de droit qui se pose est donc celle de savoir si une décision de rejeter une demande de suspension présentée conformément à la règle 111.4 b) du Règlement du personnel constitue une décision définitive, ce qui la rendrait susceptible d’être attaquée devant le Tribunal. […].
5. La question de savoir si une décision est définitive est pertinente au regard de l’article VII, paragraphe 1, du Statut du Tribunal, selon lequel une requête n’est recevable que si la décision attaquée est définitive. La jurisprudence du Tribunal établit deux critères. Premièrement, pour qu’une décision soit définitive, elle ne peut, du moins normalement, être susceptible de recours interne ou de réexamen, ni faire l’objet d’un recours ou réexamen ultérieur. En l’espèce, il ressort clairement de la règle 111.4 d) qu’il n’existe aucune possibilité de recours contre une décision du Greffier relative à une demande de suspension. En conséquence, la décision du Greffier de rejeter la demande du requérant était définitive.
6. Le second critère est que, pour être considérée comme définitive au sens de l’article VII, paragraphe 1, du Statut, une décision doit, en soi, produire un effet juridique (voir, par exemple, les jugements 2201, au considérant 4, et 3141, au considérant 21). En l’espèce, le rejet de la demande de suspension a, en soi, produit un effet juridique en ce que la décision de supprimer le poste du requérant et de mettre fin à son engagement a continué à produire des effets juridiques. Aux fins de la présente procédure, il n’est pas nécessaire de déterminer s’il s’agissait d’une ou de deux décisions. S’il avait été fait droit à la demande de suspension du requérant, la décision de supprimer son poste et de mettre fin à son engagement cesserait, pour un temps, de produire des effets juridiques, du moins après la date indiquée pour la suppression du poste et la cessation de service, à savoir le 20 octobre 2015. Ainsi, la décision de rejeter la demande produisait des effets juridiques, même si cela dépendait du fait que la décision devenait effective le 20 octobre 2015. À cet égard, il s’agissait d’une décision pouvant constituer une décision définitive.
La seule nuance que l’on puisse apporter à cette conclusion découle des jugements du Tribunal dans lesquels celui-ci fait la distinction entre les différentes étapes menant à une décision définitive et la décision définitive elle-même. D’ordinaire, ces étapes, même si elles peuvent apparaître comme des décisions, ne sont pas considérées comme des décisions définitives mais peuvent être attaquées dans le cadre de la contestation de la décision définitive elle-même (voir, par exemple, le jugement 3433, au considérant 9). On pourrait penser que le refus d’accueillir une demande de suspension est une étape du processus devant aboutir à une décision sur le recours interne. Le Tribunal reconnaît toutefois que cette approche doit être utilisée avec une certaine prudence (voir le jugement 2366, au considérant 16). En l’espèce, la demande de suspension et la décision la rejetant constituaient une étape bien distincte du recours interne, nécessitant l’application de critères particuliers. La décision définitive du Greffier sur le recours interne n’englobera pas la décision portant sur la demande de suspension. Cela contraste avec les procédures dans lesquelles les mesures sont englobées dans la décision définitive et peuvent être attaquées dans le cadre de la contestation de celle-ci. Il en résulte que le rejet de la demande de suspension constituait bien une décision définitive.»
Le Tribunal souligne qu’il en va d’ailleurs de même pour une décision de rejet d’une demande de suspension de l’exécution de la prolongation d’une mesure de suspension de fonctions. Ainsi que le Tribunal l’a relevé dans le jugement 4658, au considérant 2, lorsqu’une mesure de suspension de fonctions a été prolongée, c’est en effet son rôle de déterminer si les conditions de chaque décision de prolongation sont remplies au moment où cette décision est prise (voir également à ce sujet le jugement 4586, au considérant 11). Il s’ensuit que, dans de tels cas, les décisions de prolongation constituent des décisions définitives et non, contrairement à ce qu’a écrit la Commission de recours dans ses rapports relatifs aux demandes de suspension de l’exécution des deux prolongations de la mesure initiale de suspension de fonctions décidées par l’organisation, des simples extensions de cette mesure.
Reference(s)
ILOAT Judgment(s): 2366, 3433, 3860, 3889, 4126, 4586, 4658
Keywords:
final decision; suspension; suspensory effects;
Judgment 4944
139th Session, 2025
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision rejecting her internal appeal in which she contended, among other things, that the investigations conducted and mandated by the World Food Programme into her complaint of rape were ultra vires and that her complaint should instead have been referred to and investigated by national or international judicial authorities.
Consideration 8
Extract:
As to the arguments alleging errors of fact or law in the investigation, firstly, the Tribunal observes that it will not address the arguments concerning the first investigation as they are outside the scope of the present case. The first investigation was replaced by the second one, and the complainant withdrew her internal appeal against the outcome of the first investigation. Thus, there is no final decision based on the outcome of the first investigation, open to challenge before the Tribunal (Article VII, paragraph 1, of the Tribunal’s Statute).
Keywords:
final decision; investigation;
Judgment 4923
139th Session, 2025
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: Le requérant conteste la décision de classer sa plainte pour propos mensongers.
Consideration 8
Extract:
[L]a jurisprudence du Tribunal admet que la décision d’une autorité compétente soit ainsi matériellement portée à la connaissance du fonctionnaire concerné, comme le veut d’ailleurs un usage répandu dans les organisations internationales, par la voie d’un message signé d’une autre autorité (voir, par exemple, les jugements 4809, au considérant 4, 4654, au considérant 17, ou 3352, au considérant 7).
Reference(s)
ILOAT Judgment(s): 3352, 4654, 4809
Keywords:
decision-maker; delegated authority; final decision; notification;
Judgment 4914
139th Session, 2025
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to close the investigation concluding that certain allegations against him were substantiated and to postpone the initiation of disciplinary proceedings until such time as he might be in a position to participate in such proceedings.
Considerations 10-12
Extract:
The Tribunal considers that there is a fundamental difficulty in much of the substance of the grievance that the complainant seeks to pursue in the present complaint. He cannot point to an enforceable claim which can be vindicated by the process introduced before the Tribunal. The subject matter, namely the decision of the Global Fund to close its investigation on alleged misconduct, does not, without more, adversely affect the complainant.
In Judgment 4475, consideration 6, the Tribunal recalled that: “The Tribunal’s case law distinguishes between final decisions and other procedural steps leading to a final decision. Ordinarily, the process of decision-making involves a series of steps or findings which lead to a final decision. Those steps or findings do not constitute a decision, much less a final one. They may not be attacked directly before the Tribunal, but they may be impugned as part of a challenge to the final decision (see, for example, Judgments 2366, consideration 16, 3433, consideration 9, 3512, consideration 3, 3860, considerations 5 and 6, 3958, consideration 15, and 3961, consideration 4).”
In Judgment 3236, consideration 11, the Tribunal furthermore noted that “[a]buse of authority in relation to the initiation of an investigation may, if proven, taint a final decision taken based on the results of that investigation; however, it must be challenged in the context of that decision”, and it also relevantly stated that “[s]imilarly, an allegation of a breach of the right to due process in an adversarial proceeding must be brought in the context of the final decision arising from that proceeding”.
And in a factual setting that bears resemblance to the present situation, in Judgment 4814, consideration 7, the Tribunal underlined that “it is well established in the Tribunal’s case law that procedural steps taken in the course of a process leading to a final decision cannot be the subject of a complaint to the Tribunal, though they may be challenged in the context of a complaint directed against that final decision (see Judgments 4704, consideration 5, 4404, consideration 3, 3961, consideration 4, 3876, consideration 5, and 3700, consideration 14). In the present case, the refusal to act on the request for the [Internal Oversight Service (IOS)’s] divestiture is part of the process leading to a decision resulting from the investigation report (see, for a similar case, Judgment 3958, consideration 15). Accordingly, any alleged irregularities in the investigation could only be raised in the context of a complaint directed against the outcome of the disciplinary proceedings initiated against [the complainant], provided that she first exhausted the internal remedies available to her, as required by Article VII, paragraph 1, of the Statute of the Tribunal.” (See also Judgment 4861, consideration 14.)
The Tribunal considers that the decision of the Global Fund to close the investigation did not affect the complainant’s legal situation, either by changing his status or even by making any kind of statement in this regard, and this measure did not constitute, as a result, an “administrative decision” concerning the complainant (see Judgment 2364, consideration 4). The Executive Director was quite right, therefore, to follow in the impugned decision the recommendation of the Appeal Board and to consider the complainant’s internal appeal irreceivable.
From that standpoint, the Tribunal notes that the complainant’s assertion that the investigation could somehow be considered as a stand-alone process, independent and detached from the disciplinary process or measures that it may lead to, is wrong and represents a misguided approach to the factual reality of this matter. The investigation at issue was clearly part of a process that could culminate, if anything, in a disciplinary process and, ultimately, in a disciplinary measure. At the moment the investigation was closed as it was, that process was, and still is indeed, incomplete. In light of this, the investigation cannot be considered in isolation simply for the sake of argument. This is even more true in a context where, like here, the Global Fund expressly stated that these future steps in terms of disciplinary review or process would not take place until the complainant was in a position to participate, and thus implicitly but necessarily, was able to present his position, his contestation and his defence, in accordance with his due process rights that were here, in essence, acknowledged by the Global Fund.
While the opening of a disciplinary procedure could have exposed the complainant to a potential disciplinary measure, such procedure would, at the same time, have afforded him specific procedural safeguards. And, in the event that his legitimate interests would have been affected, he would not have been vulnerable to an arbitrary act by the Administration given the possibility of filing an appeal at the end of the disciplinary procedure.
In the present case, the decision to close the investigation had no adverse effect on the complainant in itself, as no decision was made regarding either a disciplinary procedure or a disciplinary measure. Without the possibility, as established by the record, of ever seeing a disciplinary process, let alone a disciplinary measure, as a result of this investigation, the complainant is unable to substantiate any adverse effect other than mere speculations as to what one could infer from the existence of this investigation report in his personnel file. And contrary to these speculations, the record is clear about the fact that the complainant did not have the opportunity to comment upon the report because of his illness, and that he strongly denied the allegations against him, such that this investigation report could certainly not be considered by anyone as a complete and final assessment in and by itself. This is precisely what the Global Fund indeed emphasized in its letter of 8 October 2020.
As a result, the Tribunal considers that, similarly to the internal appeal filed by the complainant, the current complaint is irreceivable, since the impugned decision to close the contested investigation is merely a step in a process outside the context of the disciplinary process or measure that it may lead to – which, in this case, will most likely never happen – and certainly not a challengeable administrative decision within the meaning of Article VII, paragraph 1, of the Statute of the Tribunal.
Reference(s)
ILOAT Judgment(s): 3236, 4475, 4814
Keywords:
effect; final decision; investigation; receivability of the complaint; step in the procedure;
Judgment keywords
Keywords:
complaint dismissed; due process; final decision; investigation; receivability of the complaint; right to be heard; step in the procedure;
Judgment 4840
138th Session, 2024
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to renew her fixed-term contract due to underperformance after placing her on a three-month Performance Improvement Plan.
Consideration 5
Extract:
[T]he Tribunal disagrees with IOM’s assertion that the complaint is allegedly irreceivable (for failure to exhaust the internal means of redress, as the underlying appeal was not filed within the applicable deadline), insofar as it concerns the decisions, communicated to the complainant on 13 June 2019, to establish the PIP (including any alleged violation of the SES process) and to extend the complainant’s contract for a three-month period corresponding to the PIP’s duration. The Tribunal considers that a staff member may challenge the decision to subject her to a PIP in the context of an appeal against the final decision taken at the end of the PIP process. In Judgment 3713, consideration 3, the Tribunal recalled that:
“[I]t is obvious that the setting of a performance objective is merely a step in the process of evaluating the performance of employees. It is firmly established by the Tribunal’s case law that a measure of this kind can only be challenged in the context of an appeal against the final decision taken at the end of the process in question (see for example Judgment 2366, consideration 16, or Judgment 3198, consideration 13).” (See also Judgment 3890, consideration 5.)
In the present case, the decision taken at the end of the PIP process was a decision not to renew the complainant’s fixed-term contract due to underperformance and this decision resulted in the complainant being separated from IOM. This being so, the Tribunal considers that the above cited case law from Judgments 3713, consideration 3, and 3890, consideration 5, is equally applicable in a case such as the present. And given that the complainant impugns her final contract extension and ultimate non-renewal, it is of no relevance whether the issue of her prior three-month extension is receivable.
Reference(s)
ILOAT Judgment(s): 2366, 3198, 3713, 3890
Keywords:
final decision; performance; performance evaluation; performance report; step in the procedure; unsatisfactory service;
Judgment 4823
138th Session, 2024
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to grant him a contract of indefinite duration.
Considerations 5-6 and 9
Extract:
Article VII, paragraph 1, of the Statute of the Tribunal indicates the following concerning the irreceivability of a complaint in a situation where the impugned decision is not a final decision, or the staff member concerned has not exhausted the internal means of redress available to her or him:
“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 desirable to recall that, in Judgment 4742, consideration 6, the Tribunal wrote the following on the necessity to abide by the time limits set forth for internal appeals and on the consequences of not doing so:
“The Tribunal has repeatedly emphasised the importance of the strict observance of applicable time limits when challenging an administrative decision. In Judgment 4673, consideration 12, it pointed out that a complaint will not be receivable if the underlying internal appeal was not filed within the applicable time limits (see also, in this regard, Judgment 4426, consideration 9, and Judgment 3758, considerations 10 and 11). According to the Tribunal’s firm precedent based on the provisions of Article VII, paragraph 1, of its Statute, the fact that an appeal lodged by a complainant was out of time renders her or his complaint irreceivable for failure to exhaust the internal means of redress available to staff members of the organisation, which cannot be deemed to have been exhausted unless recourse has been had to them in compliance with the formal requirements and within the prescribed time limit (see Judgments 4655, consideration 20, and 4517, consideration 7).”
In the same vein, the Tribunal has recalled many times the reasons why it is important to strictly observe applicable time limits when challenging an administrative decision. For instance, in Judgment 4673, considerations 12 and 13, the Tribunal held as follows:
“12. The Tribunal has repeatedly emphasised the importance of the strict observance of applicable time limits when challenging an administrative decision. In Judgment 4103, consideration 1, the Tribunal stated the following in this regard:
‘The complaint is irreceivable as the complainant failed to exhaust all internal means of redress in accordance with Article VII, paragraph 1, of the Tribunal’s Statute. The complainant’s grievance was time-barred when he submitted it [...] on 23 December 2014. Under Article VII, paragraph 1, of the Tribunal’s Statute, a complaint will not be receivable unless the impugned decision is a final decision and the complainant has exhausted all the internal means of redress. This means that a complaint will not be receivable if the underlying internal appeal was not filed within the applicable time limits. As the Tribunal has consistently stated, the strict adherence to time limits is essential to have finality and certainty in relation to the legal effect of decisions. When an applicable time limit to challenge a decision has passed, the organisation is entitled to proceed on the basis that the decision is fully and legally effective (see Judgment 3758, [considerations] 10 and 11, and the case law cited therein).’
(See also Judgment 4426, consideration 9, in this regard.)
13. As the Tribunal also recalled in Judgment 4184, consideration 4, the time limits for internal appeal procedures and the time limits in the Tribunal’s Statute serve the important purposes of ensuring that disputes are dealt with in a timely way and that the rights of parties are known to be settled at a particular point of time (see also, to the same effect, Judgment 3704, considerations 2 and 3). The rationale for this principle is that time limits are an objective matter of fact and strict adherence to them is necessary to ensure the stability of the parties’ legal relations.””
[…] The clear and unambiguous terms of the 29 January 2020 decision indicate that this was a final decision. The Indefinite Appointment Advisory Board (IAAB) recommendation of 20 December 2019 that preceded this final decision confirms it also in unambiguous terms. Moreover, this is precisely how the complainant himself understood the situation; the 18 March 2021 letter of the Director General simply confirmed that this was indeed the situation, and it therefore cannot be considered as a new decision.
Reference(s)
ILOAT Judgment(s): 3704, 3758, 3758, 4103, 4184, 4426, 4517, 4655, 4673, 4742
Keywords:
final decision; receivability of the complaint; time limit;
Judgment 4822
138th Session, 2024
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to renew his fixed-term contract.
Consideration 6
Extract:
The question of whether a decision is a final decision is of fundamental importance to the operation of the Tribunal’s Statute. The Statute defines and limits the Tribunal’s jurisdiction. Article VII, paragraph 1, requires a decision to be a final decision before the jurisdiction of the Tribunal is enlivened. Once it is, time limits are triggered: see Article VII, paragraph 2. The question of whether a decision is a final decision is essentially a legal question arising from the language of the Statute.
Keywords:
final decision;
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.
Consideration 12
Extract:
Secondly, it appears, as the Organisation acknowledges in its reply, that the investigation report was also not provided, either in full or even in anonymized form, to the Joint Committee for Disputes before it gave its opinion on 27 February 2020, which in itself also constitutes a flaw since the Committee must be able under all circumstances to give a full and informed opinion (see, in this respect, Judgments 4471, consideration 14, and 4167, consideration 3).
The fact that the members of the Committee considered unanimously that the complainant’s internal complaint was well-founded is irrelevant in this respect, since the Committee could have given an even more reasoned opinion on the merits had it been provided with the final investigation report.
Reference(s)
ILOAT Judgment(s): 4167, 4471
Keywords:
final decision; harassment; internal appeals body; investigation report; motivation; motivation of final decision; procedural flaw;
Judgment 4809
137th Session, 2024
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks a contractual redefinition of his employment relationship and the setting aside of the decision not to renew his last contract.
Consideration 4
Extract:
The wording of th[e] letter [in question] makes it plain that it was not intended to convey a decision taken by the Executive Director but by the Director-General himself, in a procedure commonly used in such cases at the ILO and, mutatis mutandis, in many other international organisations. The matter of whether the power to sign this letter had been granted is therefore irrelevant and the plea must be dismissed in accordance with the Tribunal’s well-established case law in this matter (see, for example, Judgments 4291, considerations 17 and 18, 3352, consideration 7, and 2836, consideration 7).
Reference(s)
ILOAT Judgment(s): 2836, 3352, 4291
Keywords:
decision-maker; delegation of power; final decision; notification;
Judgment 4760
137th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the failure to establish a medical board to examine the percentage of her permanent loss of function.
Judgment keywords
Keywords:
claim moot; complaint dismissed; failure to exhaust internal remedies; final decision; internal remedies not exhausted;
Judgment 4674
136th Session, 2023
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her for misconduct.
Considerations 9-10
Extract:
A difficulty with this approach of the Board is that while it may be true, based on its findings, that the complainant should have known, and possibly inferentially did know, “some” of her conduct was harassment, the Board made no finding that this was true of all the conduct charged against her as misconduct and proven to its satisfaction. This is not a case where each alleged act of misconduct was identified, separately, as warranting the sanction of dismissal. It was the aggregation of conduct “creating a hostile work environment over an extended period of time” which underlay the decision to dismiss. Additionally, one instance where the complainant had caused staff to cry occurred within two years of the complaint against her being lodged by the Staff Association in September 2016. Her complaint about lack of warning was directed to events over the entire preceding nine years comprehended by the charges, which events occurred, in the main, before 2014.
In the impugned decision, the Director effectively repeated this flawed analysis of the Board though, significantly, omitted the word “some” (referred to earlier) in saying that “the Board found that your conduct was ‘so clearly out of bounds that [you] could not help but know that it was improper’”. As just discussed, no such compendious finding was made by the Board in relation to all the conduct relied upon by the Director in confirming the dismissal of the complainant by rejecting her appeal. This material flaw in the analysis by the Director was compounded by her saying that the complainant’s assertion that the Director of Administration and the HRM Director “tolerated” her conduct did not provide the complainant with a defence when her actions were so obviously a violation of the Harassment Policy. This comment is not motivated save to the extent that it involved a purported adoption of what the Board had concluded. No such general conclusion had been reached by the Board […].
Keywords:
beyond reasonable doubt; final decision; misconduct; motivation;
Judgment 4641
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the interim results of his job grade evaluation.
Consideration 7
Extract:
[T]he complainant has failed to challenge a final decision as required by paragraph 1 of Article VII of the Statute of the Tribunal, which states 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 that the “decision” contained in the 2 May 2013 letter that the complainant purported to challenge was a mere step towards what eventually became a final challengeable decision of 9 October 2013, which informed him of the outcome of his job evaluation and which he has contested in another internal appeal.
Keywords:
final decision; receivability of the complaint; step in the procedure;
Judgment 4616
135th Session, 2023
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision finding that she had harassed another staff member and imposing a written reprimand on her.
Consideration 9
Extract:
As the Tribunal’s case law establishes, the executive head of an organisation, when adopting the recommendations of an internal appeal body, is under no obligation to give any further reasons than those given by the appeal body itself. The obligation to give reasons is affirmed only where the executive head of an organisation rejects the conclusions and recommendations of the appeal body (see Judgments 4307, consideration 15, and 3994, consideration 12). Accordingly, having accepted the advice of the Advisory Board, the Secretary-General was under no obligation to provide further reasons for his decision.
Reference(s)
ILOAT Judgment(s): 3994, 4307
Keywords:
final decision; motivation of final decision;
Judgment 4587
135th Session, 2023
South Centre
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the non-renewal of her fixed-term appointment.
Consideration 5
Extract:
[O]ne matter should be noted. As is apparent from the [applicable] provisions […], the Appellate Body’s decisions are final. Thus, unlike the appellate framework in many international organizations, the final decision on an appeal does not rest with the Executive Head of the organization. In its pleas, the South Centre challenges some of the reasoning and conclusions of the Appellate Body.
Given that this body is invested under the South Centre’s Regulations with the power to make a final decision binding on the organization, it may be doubted that the South Centre is able to impeach its decision-making in the Tribunal. However, this issue was not raised in the pleas and nothing more needs to be said in this judgment.
Keywords:
estoppel; final decision;
Judgment 4558
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision not to reimburse the costs incurred in connection with his third complaint to the Tribunal.
Consideration 6
Extract:
The Tribunal observes that it is contradictory and regrettable that the Organisation submits before it that the decision communicated to the complainant was not final while it had nevertheless specified, in its email [...], that the complainant could not submit a request for review. While an organisation has a duty to correct any mistakes made by an employee in the exercise of her or his right of appeal, it has an even greater duty not to misdirect an employee to the wrong venue by incorrectly telling her or him that a request for review is not the right remedy or that her or his only possible recourse is to file a complaint with the Tribunal and then criticise her or him for having followed its directions.
Above all, however, the Tribunal notes that an organisation cannot exempt the complainant from the requirement to exhaust internal remedies when the applicable provisions of the staff rules and regulations do not authorise it to do so, and still less indicate wrongly to the employee concerned that she or he can file a complaint directly with the Tribunal.
Keywords:
final decision; organisation's duties; waiver of internal appeal procedure;
Judgment 4543
134th Session, 2022
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her performance evaluation for 2016.
Consideration 7
Extract:
The Tribunal recalls its settled case law under which “the executive head of an international organization, when taking a decision on an internal appeal that departs from the recommendations made by the appeals body, to the detriment of the employee concerned, must adequately state the reasons for not following those recommendations” (see, for example, Judgment 4062, consideration 3, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 4062
Keywords:
final decision; motivation; motivation of final decision;
Judgment 4540
134th Session, 2022
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her dismissal as a result of disciplinary proceedings.
Considerations 4-5
Extract:
The Tribunal derives its jurisdiction from its Statute. In an early case it was described as “a [c]ourt of limited jurisdiction [...] bound to apply the mandatory provisions governing its competence” (see Judgment 67, consideration 3). One of the Tribunal’s central roles, founded on Article II of the Statute, is to enforce compliance with staff regulations where they have not been observed. The touchstone of its jurisdiction is, in this respect, lawfully adopted staff regulations or rules of international organisations. The provisions in the staff regulations and rules are the starting point in the exercise of jurisdiction. Accordingly, Staff Rule 1230.7.2 which provides that the final decision in an appeal is made by the Director, must be respected and given full effect. The Director was authorised to make the decision in the appeal in the present case and her decision was not tainted by illegality as alleged by the complainant.
Cases do arise in the Tribunal where the decision appealed against and the decision in the appeal are made by the same person, but the latter decision involves a rejection of recommendations of the appeal body. The discussion in the preceding consideration is not intended to suggest that in such cases there is no real scrutiny by the Tribunal of that latter decision and the reasons given. To the contrary, there is. The Tribunal’s case law is replete with examples where the motivation for the rejection has been found to be inadequate and the decision in the appeal has been set aside (see, for example, Judgments 4427, consideration 10, 4259, considerations 11 and 12, and 4062, consideration 4). This approach has the effect of respecting rules conferring, ordinarily, on the executive head of an organisation the power to make the final decision in an appeal even if an appeal from a decision of that person, while recognising the vitally important role appeal bodies play and the need to give considerable weight to findings and recommendations they make.
Reference(s)
ILOAT Judgment(s): 67, 4062, 4259, 4427
Keywords:
administrative decision; competence of tribunal; conflict of interest; final decision;
Judgment 4504
134th Session, 2022
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to demote her from grade P4 to grade P3 for a period of two years.
Consideration 10
Extract:
Inasmuch as the Appeal Board’s role in an internal appeal is an advisory one, the Director General may depart from its recommendations provided that she or he must state clear and cogent reasons for doing so (see, for example, Judgment 2699, consideration 24).
Reference(s)
ILOAT Judgment(s): 2699
Keywords:
disciplinary body; disciplinary measure; final decision; motivation;
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