LEGAL TIP OF THE MONTH
SETTLEMENT DISCUSSIONS STOP THE CLOCK FOR FILING APPEALS
LAURENCE C. FAUTH*
A staff association recently inquired whether
it would be a good idea to seek an amendment
of the rules on lodging appeals to extend
the deadline from 2 months to 4 months.
The reason behind the proposal was to allow
more time for the possibility of settlement before
having to lodge an appeal, since after the
appeal is lodged the positions become hardened.
The short timeframes for lodging an
appeal (from 10 days in some organizations
to 2 months in others) is generally by careful
design: the administration knows that a significant
number of appeals will be time
barred since staff will fail to meet short deadlines.
Accordingly, most administrations will
not agree to amend the rules allowing staff
members more time to lodge the appeal. In
addition, an extension of the deadlines may
only serve to further delay the internal appeal
process, which in most organizations will
run 1 to 2 years. But that does not mean settlement
discussions cannot be pursued.
If the staff member believes there is a chance
for a settlement, he or she can ask the administration
to enter into settlement discussions
before the time an appeal must be
lodged or anytime thereafter. If the administration
accepts the offer to enter into discussions,
this will have the effect of stopping the
clock for when the appeal must be filed or
the appeal proceedings in general. For example, in ILOAT Judgment No. 2584, a staff
member filed a protest to a decision involving
the denial of his application for another
post. Under the appeal rules, in the absence
of a reply from the Director-General, the appeal
to the internal Appeals Board was due
within one month. After the filing of the
protest, but before the one month had expired,
the staff member received a memo
inviting him to meet with an administration
official to discuss possible settlement. The
staff member did not file the appeal on the required
date, but did meet with the administration
official. No settlement was reached.
The staff member then lodged his appeal.
The administration objected to the timeliness
of the appeal on the grounds that the
time limits in the rules had not been met and
had not been waived by the administration.
The Tribunal noted that it is well established
that if an internal appeal is time-barred and
the internal appeals body was wrong to hear
it a subsequent complaint to the Tribunal is
irreceivable. The administration’s invitation
did not specify that the time limits would
continue to operate while settlement discussions
were held, and therefore it was reasonable
for the staff member to infer that
the clock had stopped. The Tribunal stated
that “[i]f an organisation invites settlement discussions
or, even, participates in discussions
of that kind, its duty of good faith requires
that, unless it expressly states otherwise, it is
bound to treat those discussions as extending
the time for the taking of any further
step... because settlement discussions must proceed on the basis that no further step will
be necessary”. Once the discussions terminate,
the time limit for filing the appeal begins
to run.
The rule followed by the Tribunal is in keeping
with its encouragement of settlements.
However, staff members should be vigilant in
ensuring that deadlines are not missed even
when settlement discussions are invited.
There is room for error and sometimes correspondence
is not always clear. The administration
may be equivocal in its reply to
the invitation for settlement discussions or it
may state merely that it will consider the invitation
and get back to the staff member. In
these circumstances, the clock will for filing
an appeal will not stop ticking.
* I specialize in the representation of international civil servants, and serve as legal advisor to several staff unions/associations of international organizations, some of which are based in Vienna, Austria. For further information, please send me an e-mail or visit my website.
