Judgment No. 3731
1. Properly interpreted, the orders made in Judgment 3235:
(i) do not preclude the complainant challenging the legality of the decision to terminate his employment and, if successful, being afforded relief by way of material and/or moral damages or otherwise;
(ii) did not reinstate the complainant.
2. The OPCW shall pay the complainant costs in the sum of 5,000 euros.
3. All other claims are dismissed.
The complainant has filed an application for interpretation and execution of Judgment 3235.
ILOAT Judgment(s): 3235
application for execution; application for interpretation
[T]he observations of the Tribunal about settlement discussions were no more than words of encouragement. They were not intended to create a legal obligation on the OPCW to negotiate or negotiate in a particular way. That said, the Tribunal’s observations were made in the expectation that they would be given earnest and serious consideration. It is now almost universally recognised that the settlement of legal disputes is, in many cases, a preferable outcome than the full ventilation of legal and factual issues in contested litigation to be resolved by the adjudication of a court of justice. Some cases, by their very nature, will take that path. However, many others are more appropriately resolved by discussion and agreement. The parties control the terms of an agreed outcome even if, as is almost always the case, it involves some reciprocated compromise. There appears to be a regrettable attitude amongst some parties before the Tribunal, both individual complainants and defendant organisations alike, not to entertain the possibility of settlement by agreement. It should be otherwise.
settlement out of court
[A]n order which merely sets aside a decision dismissing an appeal against a decision terminating an official’s employment does not, of itself and, in particular, without an order expressly reinstating the official, constitute an order which does reinstate the official.
[W]hat the Tribunal intended was that when a fresh decision was made in relation to the internal appeal, and if that decision was again to dismiss the appeal, all other arguments raised by the complainant in those proceedings (which gave rise to Judgment 3235) and the relief sought in consequence of those arguments could be raised afresh in any future challenge to the new decision dismissing the internal appeal in the Tribunal. It was certainly not the Tribunal’s intention to extinguish such enforceable rights as the complainant may have had in relation to his employment and its termination and the orders made did not have that legal effect.
ILOAT Judgment(s): 3235