Judgment No. 4161
Decision
The complaint is dismissed.
Summary
The complainant challenges the validity of a settlement agreement.
Judgment keywords
Keywords
duress; amicable settlement; complaint dismissed
Consideration 4
Extract:
Contrary to the complainant’s arguments, the Tribunal’s case law in principle accepts notification by email (see Judgment 2966, consideration 8, and the case law cited therein). There is no reason to distinguish between emails sent to the staff member’s work address when he is employed and those sent to his private address once he has left the organisation. The Tribunal further considers that since the complainant had chosen his counsel’s office as his address for notification purposes, which the parties do not dispute, any notification made to that address is valid.
The decision’s notification to both the complainant and his counsel by both email and registered letter, and also the wording of the email, confused the complainant and led to an exchange of emails with the Deputy Director General concerning the start of the time limit for filing a complaint with the Tribunal. It is true that the Deputy Director General alerted the complainant to the terms of Article VII of the Statute of the Tribunal and advised him to consult his counsel about how to calculate the time limit. However, he did not inform him clearly of the date to take into account. The fact that the email stated that it contained only an advance copy of the decision and that the paper copy would be sent by registered post, and the failure of the email to indicate that the time limit would start to run on the date on which the email was received, could have misled the complainant and caused him to believe that the time limit only started to run on the date when the paper copy of the decision was received (for a similar case, see Judgment 3704, considerations 7 and 8). In this case, it is hence the later date that must be considered as the date on which the time limit for filing a complaint to the Tribunal started to run.
Reference(s)
ILOAT reference: Article VII of the Statute
Jugement(s) TAOIT: 2966, 3704
Keywords
receivability of the complaint; notification; email; late filing
Consideration 4
Extract:
The complainant’s counsel – whose office the complainant had chosen as his address for notification purposes [...] – was notified of the paper copy of the decision on 14 September 2015. The time limit for filing the complaint hence expired on 13 December 2015. However, as that was a Sunday, the complaint could still be filed the next day (see Judgments 517, 2250, consideration 8, and 3034, consideration 14), as indeed occurred.
Reference(s)
Jugement(s) TAOIT: 517, 2250, 3034
Keywords
receivability of the complaint; late filing; sunday
Consideration 5
Extract:
WIPO challenges the complaint’s receivability secondly on the grounds that, by signing the settlement agreement, the complainant waived any right to challenge it.
However, since the complainant submits that he entered into that agreement under pressure which invalidated his consent, this question of receivability is, in this case, inseparable from the merits of the case (see Judgments 3424, consideration 12, and 4072, consideration 4). Indeed, the decision on the objection to receivability depends on the legal validity of the settlement agreement, which makes it necessary to consider the complainant’s pleas on the merits (for a similar approach, see Judgments 3610, consideration 6, and 3750, consideration 5).
Reference(s)
Jugement(s) TAOIT: 3424, 3610, 3750, 4072
Keywords
receivability of the complaint; cause of action; duress; amicable settlement
Consideration 8
Extract:
With regard to the complainant’s psychological state, it is not disputed that he was declared unfit for work and granted a disability benefit. Moreover, in the present proceedings the complainant has submitted several medical documents showing that he suffered from depression. However, that circumstance is not sufficient on its own to warrant a finding of a total lack of judgement (see Judgment 856, consideration 6). [...]
First, the plethora of evidence attesting to the requests submitted and the action taken by the complainant with a view to obtaining an amicable settlement shows clearly that he did not lack judgement. Next, it should be noted that although the complainant put forward a proposal for a settlement on 18 April 2013 and re-submitted it on 27 August 2013 and 28 October 2014, the discussions started in earnest on 7 November 2014 when the complainant’s counsel asked the Organization to tell him what conditions it would accept. These negotiations lasted nearly three months, giving the complainant ample time for reflection in which he could have retracted his requests for a settlement. Lastly, from the start of these discussions until the signing of the agreement, the complainant was represented by a lawyer, whose role was to inform and assist him.
The evidence provided by the complainant is not sufficient to cast doubt on his mental faculties given that, following negotiations which he himself initiated with the assistance of his counsel, he eventually accepted an offer that was distinctly advantageous from a financial point of view (for a similar case, see Judgment 2049, considerations 2 to 5).
Reference(s)
Jugement(s) TAOIT: 856, 2049
Keywords
amicable settlement; consent
Consideration 8
Extract:
The argument that the complainant needed to provide for his family must be rejected since he cannot be considered to have been in such dire necessity that his consent was not valid (see Judgment 3091, consideration 15).
Reference(s)
Jugement(s) TAOIT: 3091
Keywords
amicable settlement; consent
Consideration 9
Extract:
It is well established in the case law that “bad faith cannot be presumed, it must be proven. Additionally, bad faith requires an element of malice, ill will, improper motive, fraud or similar dishonest purpose” (see Judgment 2800, consideration 21, cited in Judgment 3154, consideration 7; see also Judgment 3902, consideration 11). What is more, “misuse of authority may not be presumed and the burden of proof is on the party that pleads it” (see Judgment 3939, consideration 10).
Reference(s)
Jugement(s) TAOIT: 2800, 3154, 3902, 3939
Keywords
misuse of authority; bad faith; abuse of power
Consideration 11
Extract:
In signing the agreement that was offered to him, the complainant waived his right to file new internal appeals, to pursue the appeals that he had initiated and to file complaints with the Tribunal. The case law acknowledges the validity and legitimacy of such agreements and considers that the resulting infringement of a complainant’s right to appeal is not unlawful (see Judgment 3867, consideration 5).
Reference(s)
Jugement(s) TAOIT: 3867
Keywords
waiver of right of appeal; amicable settlement
|
