Judgment No. 3867
The complaint is dismissed.
The complainant challenges the WTO’s decision not to conduct an inquiry into his allegations of harassment.
settlement out of court; harassment
In the course of the proceedings, the complainant requested hearings, particularly with a view to obtaining the testimony of various witnesses.
Contrary to what the complainant states in his rejoinder, the Tribunal is not bound to allow such a request. Article V of the Tribunal’s Statute clearly authorises it to agree or decline to hold oral proceedings. It is therefore open to the Tribunal, if it considers it appropriate, to dismiss a request for such proceedings (see, in particular, Judgments 3779, under 3, and 3780, under 3).
The complainant’s contention that the Tribunal’s freedom to choose not to hold oral proceedings violates the European Convention on Human Rights is irrelevant. Indeed, apart from the fact that this contention appears unfounded, the Convention is not in any event applicable as such to international organisations within the legal system to which the Tribunal belongs (see, for example, Judgments 2236, under 11, 2611, under 8, or 2662, under 12).
In the present case, in view of the extensive and detailed submissions and evidence produced by the parties, the Tribunal considers that it is fully informed about the issues raised by the case and does not therefore deem it necessary to hold oral proceedings.
ILOAT reference: Article V of the Statute
ILOAT Judgment(s): 2236, 2611, 2662, 3779, 3780
oral proceedings; european convention on human rights
Considerations 5 and 7
[T]he complainant submits that the clauses contravene the general principles of law because they have the effect of depriving him of the right to bring a complaint of harassment or abuse of power. However, in the context of a settlement, as is the case here, the infringement of an official’s right to appeal or file a complaint is not unlawful. On the contrary, it is entirely acceptable for an official to waive such rights in return for the benefits gained from the settlement. This is, furthermore, common practice in the context of separation agreements, as here.
In this respect, the complainant’s reliance on Judgment 2715, in which the Tribunal emphasised that an international organisation had acted unlawfully in making payment of a sum due to an official contingent on his relinquishing all means of appeal, is misplaced. In that case, pressure was improperly brought to bear on the official in return for nothing but the organisation’s honouring of its own duties. That situation bears no comparison with the case of a clause in a settlement agreement providing for an official to receive benefits negotiated with him.
[T]he fact that the agreement was concluded for the purpose of determining the conditions of the complainant’s separation from service did not legally prevent it from containing, as part of the settlement between the parties, stipulations concerning other aspects of the relations between them.
In this connection, the Tribunal further observes that in this case it is by no means inappropriate that the separation agreement should have the effect of preventing an inquiry into the facts alleged in the complaints [...].
ILOAT Judgment(s): 2715
settlement out of court
Under the Tribunal’s case law, the parties, the purpose of the suit and the cause of action must be the same as in the earlier case for the principle of res judicata to apply (see, for example, Judgments 1216, under 3, 2993, under 6, or 3248, under 3).
ILOAT Judgment(s): 1216, 2993, 3268
The complainant submits that he had no intention of leaving the WTO of his own accord, and that he agreed to conclude the agreement only because the WTO’s administration had clearly signalled its intention to terminate his contract at short notice and on less favourable conditions should he refuse to sign. Those assertions are certainly accurate but, as the Tribunal has already found in similar cases, such circumstances are not in themselves sufficient to show that unlawful pressure was exerted on the official concerned (see, for example, Judgments 1075, under 11, 13, 14 and 17, and 3680, under 7 to 10).
ILOAT Judgment(s): 1075, 3680
[I]n the agreement [...] the complainant acknowledged that “[the agreement] solve[d] to his complete satisfaction all claims and grievances he may have [had] against the WTO and/or individual WTO officials”, “agree[d] to withdraw forthwith all pending complaints or appeals in relation to such claims and grievances”, and “agree[d] not to initiate in the future any appeal or complaint in relation to such claims and grievances or in relation to [the agreement]”.
Having regard to the wording of these clauses, which gives them a very broad sphere of application, there can be no doubt that they prevent the complainant from filing an internal appeal or a complaint to the Tribunal in connection with the facts alleged in his internal complaint [...]. In fact, they also prohibited the filing of that internal complaint at the outset, given that the word “complaint”, as used in the agreement, also refers to any internal complaint.
internal appeal; waiver of right of appeal