Mission Impossible: getting the ILO Administrative Tribunal to review its earlier decisions

In a decision of 7 December 2020 (Judgment No. 4338), the Administrative Tribunal of the International Labor Organization (ILO Administrative Tribunal) was requested to rule on a request to review an earlier decision of the ILO Administrative Tribunal in a dispute between an staff member and the Global Fund to Fight AIDS, Tuberculosis and Malaria (Global Fund).

In her request for review, the complainant contends that (1) she discovered new facts that have a bearing on the outcome of her case on which she was unable to rely in the earlier proceedings, (2) that the Tribunal made a material error of fact in considering that she had failed to file a written report of harassment that would have necessitated an investigation of her allegations of harassment, (3) that the Tribunal omitted to rule on her claim that the termination of her employment was an abuse of authority and (4) that the Tribunal omitted to rule on her claim that the termination of her appointment amounted to a disciplinary sanction.

The Tribunal recalled that it is well established in the Tribunal’s case law “that the Tribunal’s judgments are final and carry the authority of res judicata. They may be reviewed only in exceptional circumstances and on strictly limited grounds. The only admissible grounds therefor are failure to take account of material facts, a material error (in other words, a mistaken finding of fact involving no exercise of judgement, which thus differs from misinterpretation of the facts), an omission to rule on a claim, or the discovery of new facts on which the complainant was unable to rely in the original proceedings. Moreover, these pleas must be likely to have a bearing on the outcome of the case.” (consideration 2)

In the matter at hand, the ILO Administratie Tribunal ruled that – although the complainant certainly presented her complaint in accordance with these guidelines, the complainant had not “established a ground for review” and consequentially dismissed her application for review.

The Tribunal moreover recalled that ”pleas of a mistake of law, failure to admit evidence, misinterpretation of the facts or omission to rule on a plea afford no grounds for review”. (consideration 2)

This decision is one of many decisions that the ILO Administrative Tribunal issues each session and each year, hereby underscoring the exceptional nature of a review and, more in general, the resistance courts have to review earlier decisions. As such, in the 130th and 131st Session, i.e. decisions rendered by the ILO Administratie Tribunal in the year 2020, all applications for review were dismissed.