Judgment No. 4160
The complaint, the applications to intervene and WIPO’s counterclaim against the interveners are dismissed.
The complainant seeks a redefinition of his employment relationship.
redefinition of contract; complaint dismissed
[T]he complaint does not seek to challenge WIPO’s general policy in the matter but the application of this policy to the complainant’s particular case and, since it is based on the terms of the complainant’s employment contract or the rules and regulations governing the staff of the Organization, it clearly comes within the Tribunal’s jurisdiction, as defined in Article II, paragraph 5, of its Statute.
ILOAT reference: Article II, paragraph 5, of the Statute
individual decision; receivability of the complaint
As the Tribunal has repeatedly stated, time limits are an objective matter of fact and it should not rule on the lawfulness of a decision which has become final, because any other conclusion, even if founded on considerations of equity, would impair the necessary stability of the parties’ legal relations, which is the very justification for a time bar (see, for example, Judgment 3406, consideration 12, and the case law cited therein).
ILOAT Judgment(s): 3406
In accordance with the Tribunal’s case law and pursuant to the provisions of Article VII, paragraph 1, of its Statute, the fact that the appeal lodged by the complainant was out of time renders his complaint irreceivable for failure to exhaust the internal means of redress offered to staff members of the Organization, which cannot be deemed to have been exhausted unless recourse has been had to them in compliance with the formal requirements and within the prescribed time limit (see, for example, Judgment 2888, consideration 9, and Judgments 2010, 2326 and 2708 referred to therein).
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 2010, 2326, 2708, 2888
receivability of the complaint; failure to exhaust internal remedies; late appeal
Without excluding on principle the possibility of issuing an order of this type against interveners in proceedings, the Tribunal will not accept WIPO’s claim in this case. While the filing of these applications to intervene, which were bound to be dismissed, just before the case was included on the list for the session is surprising, this unfortunate procedural initiative cannot nevertheless be regarded as constituting a clear abuse of procedure.
costs; counterclaim; interveners