UNDT/2025/018, Peter Stockholder
In the present case, according to the Applicant’s own submissions, he was not in a situation of “an absolute impossibility” of filing a timely waiver as per Karki. Instead, while apparently being aware of expiry of the deadline, he continued to work intensely on preparing the application, and rather than giving priority to filing it in time, he instead wanted it “to be perfect”. When then filing the application, the Applicant, however, made no reference to it being filed too late or indicating that he requested a waiver of the 90-day deadline under art. 8.3 of the Statute. He only requested a waiver when he filed his rejoinder in response to Order No. 022 (NY/2025) in which he stated that “[a]s such, I request that this Honourable Tribunal waive the deadline pursuant to article 8.3 of the Statute”.
Also, the Tribunal found that none of the technical or medical circumstances to which he refers in his rejoinder compares to the examples provided by the Appeals Tribunal in Temu: (a) the Dispute Tribunal’s Court Case Management System was apparently fully functioning in the Applicant’s case; the issue was rather that he had problems in figuring out how to use it, and (b) he was not medically incapacitated in filing the application—instead, as he states himself, he was actually very busy working on finalizing it.
Consequently, the Tribunal concluded that the Applicant has not been able to establish that his case was exceptional within the meaning of art. 8.3 of its Statute.
The “[d]ecision to not extend [his fixed-term appointment] for an additional five-year period or shorter”
in accordance with Gelsei 2020-UNAT-1035, a waiver filed after the expiry of the 90-day deadline is not an absolute bar to receivability. Before anything else, the Applicant must, however, first establish that his case is indeed exceptional as per art. 8.3 on the Tribunal’s Statute. In exercising its discretion on this matter, the Dispute Tribunal may take into consideration (a) possible prejudice to other party and (b) the interests of justice. The duration of the delay is, however, only to be considered if the Applicant succeeds in demonstrating this exceptionality.
In Karki 2023-UNAT-1406, para. 55, the Appeals Tribunal elaborated on the question of exceptional circumstances under art. 8.3 of the Dispute Tribunal’s Statute. It held that “[t]his construction must be rigorously interpreted, as strict adherence to time limits is one of the cornerstones of the internal justice system”. This meant that “there will be exceptional circumstances when there is an absolute impossibility for the filing party to file within the statutory time limits” (emphasis added).
In Temu 2021-UNAT-1174, the Appeals Tribunal gave two examples of acceptable justifications for filing a waiver request after the expiry of the 90-day deadline, namely “a technical failing of the Court Case Management System rendering it impossible to file before the deadline or a medical incapacity on the part of the staff member to file an application” (para. 40).