UNSpecial N° 700 - November 2010
IN THE COURTS - THE IMPORTANCE OF TIME
The imposition of time limits after which legal action may not be taken is a feature of most legal systems, including that applied by the administrative tribunals of the United Nations. Almost one in five cases which have gone before the Geneva UNDT have failed for not respecting time limits. Here is how to make sure yours doesn't:
When does time start running?
Time starts running from the day after which you were notified of the final administrative decision (e.g. non-renewal of contract, abolition of post, non-selection, etc.) you wish to contest. While easily stated, this concept is tricky and requires some further explanation:
- A decision is "final" when the organization decides to take a particular course of action, which has direct legal consequences on your individual rights and obligations (Andronov, old UNAT No. 1157 of 2003).
- Subsequent restatements of the final decision do not cause time to restart.
- While you must be notified of the decision you may not try to avoid notification. Make sure the organization has your correct contact details by updating your information on file.
- In some circumstances, the failure to take an administrative decision is considered in itself to be an administrative decision (Tabari, 2010-UNAT-030). Since notification may not follow a failure to take a decision, the jurisprudence is unclear as to when time starts running under these circumstances. To ensure that you do not fall foul of the time limits, you should approach the Office of the Ombudsman and/or activate the formal system as soon as possible.
Time limits are extremely short
It cannot be stressed enough that time limits at the UNDT and UNAT are very short:
- If your application is related to the imposition of a disciplinary measure or to a decision taken following advice from a panel of experts (the most common panels are the Advisory Board on Compensation Claims or a Medical Board), you have 90 calendar days to make an application.
- For anything else you have 60 calendar days to file a "Management Evaluation Request" (MER) or to begin mediation under the auspices of the Office of the Ombudsman. The MER gives the organization an opportunity to review the decision and either affirm, reverse or amend it. If it does not do so to your satisfaction you have 90 calendar days to make an application to the tribunals and/or to begin mediation under the auspices of the Office of the Ombudsman. The 90 days starts running from the date at which you have received the response to the MER, or 45 calendar days (30 calendar days in New York), from the date it should have been received, whichever is shorter.
- The 90 calendar days referred to above are automatically extended to one year if the application is filed in the name of an incapacitated or deceased staff member. The MER deadline of 60 days still applies for non-disciplinary and non-advisory board applications.
- If you are appealing a final judgment of the UNDT, you have 45 days to file your appeal with the United Nations Appeals Tribunal.
Time limits in the formal system can be waived or suspended in a limited number of ways. The effect of this is that the balance of days remaining before the time limits run out for making a application remain available to you when time starts running again.
In line with global legal trends, the new internal justice system emphasises "informal" resolution of disputes. The automatic "freezing" of time limits is an important incentive to use the informal system as well as giving it the necessary space to operate. Time is automatically frozen only when the Office of the Ombudsman manages the attempt at informal resolution, via its Mediation Division. Discussions with your supervisor, negotiations for an out-of-court settlement or anything else that is not happening with the oversight of the Office of the Ombudsman will not freeze time, even if both parties intend this to be the effect of their actions. Aside from taking part in informal dispute resolution under the aegis of the Ombudsman, the only other way to freeze time is to apply to the tribunals. In the recent UNDT Geneva case of Samardzic et al., the UNDT made it clear that it would only consider freezing time limits in this way if the reason for extension was related to the applicant's exceptional personal circumstances (Samardzic et al., UNDT/2010/019). The superior UNAT has also taken a tough line with suspending or waiving time limits. Examples of reasons found to constitute 'exceptional circumstances' include failure to give notice of a decision in writing (Schook, 2010-UNAT-0013); clear bad faith of the administration in advising applicant his appeal had been 'cancelled' which Applicant relied upon in not meeting the time limits (Ajdini et al., Order No. 50 (GVA/2010); failure of applicant to request an extension of time to file an application due solely to the confusion during the transition between the old and new internal justice system (Mezzoui, 2010-UNAT-043). Examples of reasons found not to be 'exceptional circumstances' by the Tribunals include lack of counsel, relocation to another country, applying for jobs, lack of internet access on a daily basis, (Kita, UNDT/2010/025); formal settlement talks outside the auspices of the Office of the Ombudsman, (Abu-Hawaila, UNDT/2010/102); medical evidence submitted for the first time before the Appeals Tribunal (Shakir, 2010-UNAT-056). Prospects of success also not a factor in determining exceptional circumstances. (Kita, Id.)
Time limits can fall back to zero and start running again when the organization issues a new "final" decision that overrides the previous decision (see above). This most clearly happens when the organization decides to terminate or not to renew a contract of employment at a later date than that originally notified to the applicant. While other circumstances are possible, it is for the applicant to show that the decision is so different from the previous one that it cannot simply be considered a restatement. Rarely are such applications successful.
What if time is up?
If your time limit is imminent OSLA strongly suggest that staff members make submissions, containing the basic elements of their case, on their own within the relevant time limits. This can be accompanied by an application to suspend time limits, if you have experienced an event out of your control and related to your exceptional personal circumstances to merit a suspension. If you have exceeded the time limits, the only avenue left open is to make an application to the tribunal to have the time limit waived. The decision will be taken on the same principles as for suspensions (see above) and time limits for MERs cannot be waived.
The lesson to be drawn is that at the tribunals, time really is of the essence. Time limits are strict and applied strictly. Applicants should only consider time limits to be frozen when the Office of the Ombudsman is involved. Any other informal attempts at resolution take place with a ticking clock, to a very tight time line and entirely at your own risk.
UNSpecial N° 700 - November 2010
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