Discretion (547, 548, 549, 550, 551,-666)
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Keywords: Discretion
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Judgment 4799
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests, firstly, the decision to reassign him pursuant to the closure of his area of competence in Berlin, and to reallocate some patent files, secondly, the decision to reallocate some patent files in the context of his reassignment and, thirdly, the closure of an area of competence per se.
Consideration 4
Extract:
The Tribunal recalls its well-established case law that decisions regarding restructuring, reassignment of staff members to different posts, and changes in the duties assigned to staff members involve the exercise of a wide discretionary power, and are therefore subject to limited judicial review by the Tribunal (see Judgments 4084, consideration 13, 3488, consideration 3, and 2562, consideration 12). The Tribunal may interfere only on the limited grounds that the decision was taken ultra vires or shows a formal or procedural flaw or mistake of fact or law, if some material fact was overlooked, if there was misuse of authority or an obviously wrong inference from the evidence. However, the organisation must show due regard, in both form and substance, for the dignity of the officials concerned, particularly by providing them with work of the same level as that which they performed in their previous post and matching their qualifications (see Judgments 4240, consideration 5, and 3488, consideration 3).
Reference(s)
ILOAT Judgment(s): 2562, 3488, 4084, 4240
Keywords:
discretion; reassignment; reorganisation;
Judgment 4798
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the closure of an area of competence in the Berlin sub-office, and her reassignment.
Consideration 3
Extract:
The complainant further contends that the closure of the area of competence G01R in Berlin did not increase efficiency as indicated by the EPO. However, the complainant does not establish procedural or substantive errors of this decision, which is organizational in nature, and thus involved the exercise of a wide discretionary power. The Tribunal does not have the authority to decide which of the many possible restructuring options should be chosen by the Organisation.
Keywords:
discretion; reorganisation;
Consideration 3
Extract:
The Tribunal recalls its well-established case law that decisions regarding restructuring, reassignment of staff members to different posts, and changes in the duties assigned to staff members, involve the exercise of a wide discretionary power and are therefore subject to limited judicial review by the Tribunal (see Judgments 4084, consideration 13, 3488, consideration 3, and 2562, consideration 12). The Tribunal may interfere only on the limited grounds that the decision was taken ultra vires or shows a formal or procedural flaw or mistake of fact or law, if some material fact was overlooked, if there was misuse of authority, or an obviously wrong inference from the evidence. However, the organisation must show due regard, in both form and substance, for the dignity of the officials concerned, particularly by providing them with work of the same level as that which they performed in their previous post and matching their qualifications (see Judgments 4240, consideration 5 and 3488, consideration 3).
Reference(s)
ILOAT Judgment(s): 2562, 3488, 4084, 4240
Keywords:
discretion; reassignment; reorganisation;
Judgment 4795
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his performance evaluation report for 2018.
Considerations 9-10
Extract:
As the Tribunal has repeatedly held in its case law, assessment of anemployee’s merits during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgments 4564, consideration 3, 4267, consideration 4, 3692, consideration 8, 3228, consideration 3, and 3062, consideration 3).
Among the various pleas entered by the complainant [...], there is one that is decisive for the outcome of this dispute, [...] since it relates to a material fact that was allegedly overlooked. This is the plea that the President of the Boards of Appeal refused to take account of the fact that the 50 per cent exemption from duties granted to the complainant as a full member of the CSC, pursuant to Article 3(2) of Circular No. 356 concerning the resources and facilities to be granted to the Staff Committee, was insufficient in the light of actual needs observed.
Reference(s)
ILOAT Judgment(s): 3062, 3228, 3692, 4267, 4564
Keywords:
discretion; judicial review; performance report; rating; staff representative;
Judgment 4794
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2016.
Considerations 10 & 12
Extract:
[T]he fact that the Appraisals Committee’s mandate is confined to determining whether an appraisal report is arbitrary or discriminatory does not in itself render the procedure flawed, as the Tribunal also noted in the aforementioned Judgments 4637, consideration 13, and 4257, consideration 13. In addition, the Appraisals Committee’s restricted mandate in this regard does not limit the extent of the Tribunal’s judicial role in this area. It must be recalled that the Tribunal can exercise only a limited power of review in the matter of staff appraisals. In Judgment 4564, consideration 3, the Tribunal reiterated the following in this regard:
“[A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority. Regarding the rating of EPO employees, those criteria are the more stringent because the Office has a procedure for conciliation on staff reports and the Service Regulations entitle officials to appeal to a [...] body [...]”
Since the Tribunal does not have the ability to substitute its own assessment for that made by the persons or bodies responsible for assessing an employee’s merits, the fact that the Appraisals Committee’s power of review is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.
[...]
[T]he exercise that the complainant is asking the Tribunal to undertake with regard to the assessment of his productivity and his overall evaluation amounts in reality to a re-evaluation of his performance for 2016. However, that is a misconstruction of the Tribunal’s role, given the limited power of review the Tribunal may exercise in this matter according to its settled case law (see, for example, the aforementioned Judgment 4564, consideration 3, which was cited in the aforementioned Judgment 4637, consideration 13).
Reference(s)
ILOAT Judgment(s): 4564, 4637
Keywords:
discretion; rating; role of the tribunal;
Judgment 4779
137th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her dismissal for misconduct.
Consideration 16
Extract:
According to the Tribunal’s case law, the disciplinary authority within an international organisation has a discretion to choose the disciplinary measure imposed on an official for misconduct. However, its decision must always respect the principle of proportionality which applies in this area (see, in particular, Judgments 4400, consideration 29, 3944, consideration 12, 3927, consideration 13, and 3640, consideration 29).
In the present case, the Tribunal considers that the fraudulent acts referred to in consideration 15 above, although involving relatively modest amounts, constitute serious breaches of the duty of honesty incumbent on any member of the staff of an international organisation. In addition, the repeated failures by the complainant to honour private obligations were, as stated in consideration 13, liable to undermine the dignity of the status of international civil servant and tarnish the reputation of ITU. As correctly pointed out in the decision of 30 July 2021, the fact that the complainant worked in the Human Resources Management Department is an aggravating factor since it can normally be assumed that staff within that department will be particularly careful to observe the ethical standards expected of the organisation’s staff members. Lastly, although the personal difficulties referred to above might certainly be considered as a mitigating factor, the facts at issue would in any case be no less serious on that account.
Reference(s)
ILOAT Judgment(s): 3640, 3927, 3944, 4400
Keywords:
aggravating circumstances; disciplinary measure; discretion; proportionality;
Judgment 4777
137th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the calculation of his remuneration and the determination of his step following his promotion from grade G.6 to grade P.3.
Consideration 3
Extract:
[T]he Tribunal’s case law [...] establishes that the executive head of an organisation has wide discretion in appointing or promoting staff and, therefore, the decisions that she or he takes in this area are subject to only limited review by the Tribunal. Thus, the Tribunal will only interfere in such a decision if it was taken without authority or in breach of a rule of form or procedure, if it was based on a mistake of fact or law, if an essential fact was overlooked, if a clearly wrong conclusion was drawn from the evidence or if there was abuse of authority (see, for example, Judgments 4552, consideration 2, 4451, consideration 6, and 3742, consideration 3). This case law also applies in the particular situation where, as in the present case, the object of the contested decision is to determine whether it is appropriate to rescind the award of a promotion to a staff member who now feels dissatisfied with it. In this regard, the complainant is, in reality, simply asking the Tribunal to replace the Secretary-General’s assessment by its own assessment of whether or not the promotion he received should be rescinded, which misconstrues the limited power of review of the Tribunal in such a case.
Reference(s)
ILOAT Judgment(s): 3742, 4451, 4552
Keywords:
appointment; discretion; judicial review; promotion;
Judgment 4767
137th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant requests a compensatory allowance to offset financial losses resulting from a restructuring.
Consideration 2
Extract:
First of all, the Tribunal recalls its settled case law that decisions concerning the restructuring of an international organisation, including to abolish posts, may be taken at the discretion of the organisation’s executive head and are consequently subject to only limited review. Accordingly, the Tribunal shall confine itself to ascertaining whether such decisions are taken in accordance with the relevant rules on competence, form or procedure, whether they rest on a mistake of fact or of law or whether they constitute abuse of authority. The Tribunal shall not rule on the appropriateness of a restructuring or of individual decisions relating to it, and it shall not substitute the organisation’s view with its own (see, for example, Judgments 4608, consideration 7, 4503, consideration 11, and 4405, consideration 2).
Reference(s)
ILOAT Judgment(s): 4405, 4503, 4608
Keywords:
discretion; judicial review; reorganisation;
Judgment 4766
137th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant requests a compensatory allowance to offset financial losses resulting from a restructuring.
Consideration 2
Extract:
First of all, the Tribunal recalls its settled case law that decisions concerning the restructuring of an international organisation, including to abolish posts, may be taken at the discretion of the organisation’s executive head and are consequently subject to only limited review. Accordingly, the Tribunal shall confine itself to ascertaining whether such decisions are taken in accordance with the relevant rules on competence, form or procedure, whether they rest on a mistake of fact or of law or whether they constitute abuse of authority. The Tribunal shall not rule on the appropriateness of a restructuring or of individual decisions relating to it, and it shall not substitute the organisation’s view with its own (see, for example, Judgments 4608, consideration 7, 4503, consideration 11, and 4405, consideration 2).
Reference(s)
ILOAT Judgment(s): 4405, 4503, 4608
Keywords:
discretion; judicial review; reorganisation;
Judgment 4750
137th Session, 2024
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her appointment for unauthorised absence and abandonment of post.
Consideration 9
Extract:
Although, as she observes, the complainant was [...] entitled to request special leave without pay, she did not have an automatic right to receive it; it was to be granted at the discretion of the Registrar of the Court. Given an international organisation’s discretionary authority to take such a decision, it is subject to only limited review by the Tribunal and may be set aside only if it was taken without authority or in breach of a rule of form or of procedure, or if it was based on a mistake of law or of fact, or if some material fact was overlooked, or if a clearly wrong conclusion was drawn from the evidence, or if there was abuse of authority (see, in particular, Judgment 4101, consideration 8, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 4101
Keywords:
discretion; judicial review; special leave;
Judgment 4745
137th Session, 2024
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to discharge him after due notice.
Consideration 5
Extract:
It is […] appropriate to recall the Tribunal’s well-settled case law on disciplinary decisions. Such decisions fall within the discretionary authority of an international organization and are subject to limited review. The Tribunal must determine whether or not a discretionary decision was taken with authority, was in regular form, whether the correct procedure was followed and, as regards its legality under the organization’s own rules, whether the organization’s decision was based on an error of law or fact, or whether essential facts had not been taken into consideration, or whether conclusions which are clearly false had been drawn from the documents in the file, or finally, whether there was a misuse of authority. Additionally, the Tribunal shall not interfere with the findings of an investigative body in disciplinary proceedings unless there was a manifest error (see, for example, Judgment 4579, consideration 4, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 4579
Keywords:
disciplinary procedure; discretion; role of the tribunal;
Judgment 4726
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2015.
Consideration 8
Extract:
As the complainant purports to challenge the impugned decision on procedural and substantive grounds, the Tribunal recalls the following statement which it made in Judgment 4564, consideration 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“[A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
In Judgment 4637, having recalled that statement, the Tribunal observed, in consideration 13, that:
“Since the Tribunal’s power of review does not extend to determining as such whether appraisals are well founded, the fact that the Appraisals Committee’s power of review is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.”
Reference(s)
ILOAT Judgment(s): 4564, 4637
Keywords:
discretion; rating; role of the tribunal;
Judgment 4725
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2015.
Consideration 11
Extract:
As the complainant purports to challenge the impugned decision on procedural and substantive grounds, the Tribunal recalls the following statement which it made in Judgment 4564, consideration 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“[A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
In Judgment 4637, having recalled that statement, the Tribunal observed, in consideration 13, that:
“Since the Tribunal’s power of review does not extend to determining as such whether appraisals are well founded, the fact that the Appraisals Committee’s power of review is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.”
Reference(s)
ILOAT Judgment(s): 4564, 4637
Keywords:
discretion; rating; role of the tribunal;
Judgment 4724
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her appraisal report for 2015.
Consideration 2
Extract:
It is convenient for the Tribunal to recall the following statement which it made in Judgment 4564, consideration 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“[A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
In Judgment 4637, having recalled that statement, the Tribunal observed, in consideration 13, that:
“Since the Tribunal’s power of review does not extend to determining as such whether appraisals are well founded, the fact that the Appraisals Committee’s power of review is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.”
Reference(s)
ILOAT Judgment(s): 4564, 4637
Keywords:
discretion; rating; role of the tribunal;
Judgment 4723
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2015.
Consideration 2
Extract:
It is convenient for the Tribunal to recall the following statement which it made in Judgment 4564, consideration 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“[A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
In Judgment 4637, having recalled that statement, the Tribunal observed, in consideration 13, that:
“Since the Tribunal’s power of review does not extend to determining as such whether appraisals are well founded, the fact that the Appraisals Committee’s power of review is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.”
Reference(s)
ILOAT Judgment(s): 4564, 4637
Keywords:
discretion; rating; role of the tribunal;
Judgment 4721
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her appraisal report for 2015.
Consideration 8
Extract:
As the complainant purports to challenge the impugned decision on procedural and substantive grounds, the Tribunal recalls the following statement which it made in Judgment 4564, consideration 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“[A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
In Judgment 4637, having recalled that statement, the Tribunal observed, in consideration 13, that:
“Since the Tribunal’s power of review does not extend to determining as such whether appraisals are well founded, the fact that the Appraisals Committee’s power of review is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.”
Reference(s)
ILOAT Judgment(s): 4564, 4637
Keywords:
discretion; rating; role of the tribunal;
Judgment 4720
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2015.
Consideration 11
Extract:
Regarding the complainant’s challenge to the substance of his 2015 appraisal report, it is convenient for the Tribunal to recall the following statement which it made in Judgment 4564, consideration 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“[A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
In Judgment 4637, having recalled that statement, the Tribunal observed, in consideration 13, that:
“Since the Tribunal’s power of review does not extend to determining as such whether appraisals are well founded, the fact that the Appraisals Committee’s power of review is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.”
Reference(s)
ILOAT Judgment(s): 4564, 4637
Keywords:
discretion; rating; role of the tribunal;
Judgment 4719
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2015.
Consideration 11
Extract:
Regarding the complainant’s challenge to the substantive aspects of his 2015 appraisal report, it is convenient to recall the following statement which the Tribunal made in Judgment 4564, consideration 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“[A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
In Judgment 4637, having recalled that statement, the Tribunal observed, in consideration 13, that:
“Since the Tribunal’s power of review does not extend to determining as such whether appraisals are well founded, the fact that the Appraisals Committee’s power of review is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.”
Reference(s)
ILOAT Judgment(s): 4564, 4637
Keywords:
discretion; rating; role of the tribunal;
Judgment 4718
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2015.
Considerations 4 & 13
Extract:
As the complainant challenged the impugned decision on procedural and substantive grounds, the Tribunal recalls the following statement which it made in Judgment 4564, consideration 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“[A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
In Judgment 4637, having recalled that statement, the Tribunal observed, in consideration 13, that:
“Since the Tribunal’s power of review does not extend to determining as such whether appraisals are well founded, the fact that the Appraisals Committee’s power of review is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.”
[...]
[T]he Tribunal recalls its case law, stated, for example, in consideration 13 of Judgment 4637, referring to Judgment 4257, that its power to review appraisal reports is limited to considering, among other things, whether there was illegality in drawing up the contested report. Additionally, as the Tribunal’s power of review does not extend to determining whether the report was well founded, the fact that the Appraisals Committee’s mandate is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.
Reference(s)
ILOAT Judgment(s): 4257, 4564, 4637
Keywords:
discretion; rating; role of the tribunal;
Judgment 4716
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2014.
Considerations 6 & 14
Extract:
Settled case law has it that supervisors enjoy wide discretion when assessing the performance of staff members and that, where a performance report is contested, the Tribunal exercises only a limited power of review. It will determine whether the reporting process is
vitiated by a formal or procedural flaw, an error of law or fact; whether a material fact was overlooked; whether there was a misuse of authority or an obviously wrong inference was drawn from the evidence; whether a plainly wrong conclusion was drawn from the facts; or whether there was abuse of authority. The Tribunal has also stated that, as a performance assessment is a value judgement within the discretionary authority of the bodies mandated to conduct it in accordance with the relevant rules, it will not substitute its own opinion for assessments made by these bodies. The limitation on the Tribunal’s power of review naturally applies to both the mark given in a staff report and the comments accompanying that mark in the report. This is because a performance report serves no purpose unless a supervisor has full freedom to comment on performance. The supervisor’s independence and sense of fairness being presumed, it is for the complainant to provide evidence that the staff report is flawed (see, for example, Judgments 4564, consideration 3, 3268, consideration 9, 3252, consideration 6, 2400, consideration 3, 2318, consideration 4, 2064, consideration 4, and 880, consideration 4). Moreover, inasmuch as the complainant was a staff representative at the material time, it is convenient to recall the Tribunal’s statement, in consideration 19 of Judgment 3084, that an organisation must ensure that a staff member is not disadvantaged on the grounds of her or his participation in staff representation activities as the principle of freedom of association is infringed if a person is subject to a detriment or disability because of her or his activities within a staff association (see also Judgments 3414, consideration 4, and 2704, consideration 6).
[...]
[S]upervisors enjoy wide discretion when assessing the performance of staff members and that, where a performance report is contested, the Tribunal exercises only a limited power of review.
Reference(s)
ILOAT Judgment(s): 880, 2064, 2318, 2400, 2704, 3084, 3252, 3268, 3414, 4564
Keywords:
discretion; rating; role of the tribunal;
Judgment 4715
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2014.
Consideration 11
Extract:
Regarding the complainant’s challenge to the substantive aspects of his 2014 staff report, the Tribunal finds it convenient to repeat the following statement which it made in Judgment 4564, consideration 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“[A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
In Judgment 4637, having recalled that statement, the Tribunal observed, in consideration 13, that:
“Since the Tribunal’s power of review does not extend to determining as such whether appraisals are well founded, the fact that the Appraisals Committee’s power of review is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.”
Reference(s)
ILOAT Judgment(s): 4564, 4637
Keywords:
discretion; rating; role of the tribunal;
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