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Flaw (557, 558, 559,-666)

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Keywords: Flaw
Total judgments found: 241

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  • Judgment 1355


    77th Session, 1994
    Universal Postal Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 9

    Extract:

    "Any promotion wholly or even mainly based on considerations of sex would unquestionably be unlawful."

    Keywords:

    candidate; discretion; flaw; judicial review; promotion; sex discrimination;



  • Judgment 1352


    77th Session, 1994
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 12

    Extract:

    "In the case of dismissal of a probationer the employer is to be allowed the widest discretion and the decision will be quashed only if the mistake or the illegality is especially serious or glaring: see, for example, Judgment 687 [...], under 2."

    Reference(s)

    ILOAT Judgment(s): 687

    Keywords:

    case law; discretion; flaw; judicial review; limits; probation; termination;



  • Judgment 1328


    76th Session, 1994
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 11

    Extract:

    "The Tribunal's rulings carry the authority of res judicata, save that in accordance with Article XII(1) of its Statute and the Annex thereto their validity may be challenged on referral by an organisation that has recognised its jurisdiction to the International Court of Justice on the grounds of lack of competence or a fundamental fault in the procedure followed."

    Reference(s)

    ILOAT reference: ARTICLE XII(1) OF THE STATUTE

    Keywords:

    application for execution; case sent back to organisation; competence of tribunal; complaint allowed; complaint allowed in part; flaw; icj; iloat statute; judgment of the tribunal; procedure; res judicata;



  • Judgment 1321


    76th Session, 1994
    European Organization for Nuclear Research
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    "As the Tribunal has said more than once, a staff member may not rely upon an unlawful act or a benefit granted ex gratia to other staff in support of his own claim."

    Keywords:

    case law; equal treatment; flaw; practice;



  • Judgment 1317


    76th Session, 1994
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 24

    Extract:

    See Judgments 956, considerations 2 and 3, 1262, consideration 4, and 1273, consideration 8.

    Reference(s)

    ILOAT Judgment(s): 956, 1262, 1273

    Keywords:

    case law; complaint allowed; complaint allowed in part; contract; decision; decision quashed; discretion; due process; duty to substantiate decision; fixed-term; flaw; formal flaw; judicial review; mistake of fact; misuse of authority; non-renewal of contract; notice; organisation's interest; procedural flaw; right to reply;



  • Judgment 1315


    76th Session, 1994
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 11

    Extract:

    The Tribunal quashes the results of a competition because the appointment procedure was tainted with bias. This entails the quashing of the appointment of an external candidate. "The Tribunal expects that the President will take such measures as will ensure that [the external candidate], who accepted the [appointment] in good faith, suffers no material injury."

    Keywords:

    appointment; bias; competition; competition cancelled; complaint allowed; decision quashed; flaw; good faith; misuse of authority; open competition; organisation's duties;



  • Judgment 1306


    76th Session, 1994
    Universal Postal Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    "When a decision is quashed, it is deemed never to have been taken. The Administration must do whatever the correction of the position in law may require and by due process take a new decision that is free from the fatal flaws in the quashed one and that gives effect to the Tribunal's ruling in the light of the reasoning that underlies it."

    Keywords:

    application for interpretation; complaint allowed; decision quashed; due process; effect; flaw; judgment of the tribunal; organisation's duties;

    Consideration 7

    Extract:

    The complainant is challenging the UPU's interpretation and execution of Judgment 1235 in which the Tribunal quashed the Director-General's decision confirming his refusal to appoint him to a specific post and offering him compensation for moral injury. "The award of moral damages affords him redress for the injury the Union's unlawful act caused him up to the date of Judgment 1235; it does not relieve the Union of remedying that unlawful act by reviewing the matter of his rights, and this time doing it properly."

    Reference(s)

    ILOAT Judgment(s): 1235

    Keywords:

    application for interpretation; complaint allowed; decision quashed; execution of judgment; flaw; injury; judgment of the tribunal; moral damages; moral injury; organisation's duties; purpose;



  • Judgment 1292


    75th Session, 1993
    Universal Postal Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    "When the Director-General asks the Swiss government to confer diplomatic status, he is exercising his discretion. [...] So the Tribunal will not interfere with his decision unless he has committed some procedural or formal error or a mistake of law or of fact, or applied some wrong principle, or drawn illogical conclusions from the evidence before him."

    Keywords:

    discretion; executive head; flaw; judicial review; mistake of fact; mistaken conclusion; privileges and immunities; procedural flaw; status of complainant;



  • Judgment 1284


    75th Session, 1993
    United Nations Industrial Development Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 4

    Extract:

    "Precedent has it [...] that the Tribunal may not replace the Board's assessment of medical questions with its own. But it goes further than that: the Tribunal does have full competence to say whether there was due process and whether the medical findings show any material mistake or inconsistency, or overlook some essential fact, or plainly misread the evidence."

    Keywords:

    case law; case sent back to organisation; complaint allowed; decision quashed; discretion; disregard of essential fact; flaw; judicial review; limits; medical board; medical opinion; mistaken conclusion; procedural flaw; procedure; report;



  • Judgment 1281


    75th Session, 1993
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 2

    Extract:

    "According to the case law the grading of posts is a matter within the discretion of the executive head of an international organisation. So the Tribunal will not interfere with the decision impugned in this case unless it was taken without authority or shows some procedural or formal flaw or a mistake of fact or of law, or overlooks some material fact, or is an abuse of authority, or draws a clearly mistaken conclusion from the facts. Moreover, the Tribunal will not substitute its own assessment of the facts for the Secretary-General's."

    Keywords:

    case law; competence; decision-maker; discretion; disregard of essential fact; executive head; flaw; formal flaw; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; post classification; procedural flaw;



  • Judgment 1262


    75th Session, 1993
    European Southern Observatory
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 4

    Extract:

    "The case law has made it consistently plain that a decision not to renew a fixed-term appointment, being discretionary, may be set aside only if it was taken without authority, or in breach of a rule of form or of procedure, or was based on a mistake of fact or of law, or if some essential fact was overlooked, or if clearly mistaken conclusions were drawn from the facts, or if there was abuse of authority. Moreover, when the reason given for non-renewal is unsatisfactory performance, the Tribunal will not replace the organisation's assessment of the complainant's fitness for his duties with its own."

    Keywords:

    case law; contract; decision; discretion; disregard of essential fact; fixed-term; flaw; formal flaw; grounds; judicial review; mistake of fact; mistaken conclusion; misuse of authority; non-renewal of contract; procedural flaw; qualifications; unsatisfactory service;



  • Judgment 1251


    74th Session, 1993
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 9

    Extract:

    The complainant was accused of misappropriating funds and summarily dismissed for misconduct. The Tribunal holds that though the Appeals Board "recorded in its report the organization's submissions on the facts, it did not come to any conclusion on them and indeed said it was 'extremely difficult to impute the misfeasances committed to the complainant'. The Director-General's decision is thus flawed with the wrong assumption that the Board had made findings adverse to the complainant."

    Keywords:

    complaint allowed; decision; decision quashed; disciplinary measure; flaw; internal appeals body; judicial review; mistake of fact; mistaken conclusion; serious misconduct; summary dismissal; termination;



  • Judgment 1250


    74th Session, 1993
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 20

    Extract:

    Had the complainant "made a bona fide challenge to the validity of transfer, that would have been a satisfactory explanation for non-compliance: for a precedent, see Judgment 392 [...], under 6. For family reasons the organization refrained for five months [...] from taking action on the decision to transfer the complainant. Thereafter he did not challenge the transfer but sought to circumvent or delay it by raising a series of questions and by evading a direct response."

    Reference(s)

    ILOAT Judgment(s): 392

    Keywords:

    case law; complainant; decision; flaw; good faith; refusal; staff member's interest; transfer;



  • Judgment 1246


    74th Session, 1993
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 14 and 15

    Extract:

    "The purpose of Article 6.7.3 of the Staff Regulations is that the lapse of time between first and second reports should be long enough - the period prescribed is nine months - to give the probationer a proper opportunity of showing his mettle before the second report has to be made. The period of less than three months that the complainant was allowed was far too short to allow of any substantial improvement. [...] The procedural flaw caused the complainant injury."

    Keywords:

    cause of action; complaint allowed; complaint allowed in part; date; delay; due process; flaw; performance report; probation; procedural flaw; qualifications; staff regulations and rules;

    Consideration 15

    Extract:

    "The procedural flaw caused the complainant injury. As to the relief she is entitled to on that account, the Tribunal holds that it is not advisable to grant her the redress that would ordinarily be the consequence of quashing the impugned decision, namely reinstatement. The Tribunal therefore exercises the discretion vested in it by Article VIII of its Statute and instead awards the complainant damages for the breach of procedure. It sets the amount at the equivalent of one year's salary and allowances."

    Reference(s)

    ILOAT reference: ARTICLE VIII OF THE STATUTE

    Keywords:

    allowance; compensation; complaint allowed; complaint allowed in part; decision; due process; flaw; iloat statute; material damages; procedural flaw; reinstatement; right; salary; tribunal;

    Consideration 3

    Extract:

    "As the Tribunal has held on several occasions, for example in Judgment 1183, a decision by the Director-General not to confirm the appointment of a probationer 'is a discretionary one. Its power of review being limited, the Tribunal will set the decision aside only if it finds a mistake of fact or of law, or a formal or procedural flaw, or a clearly mistaken conclusion on the evidence, or neglect of an essential fact or abuse of authority.'"

    Reference(s)

    ILOAT Judgment(s): 1183

    Keywords:

    case law; complaint allowed; complaint allowed in part; decision; discretion; disregard of essential fact; extension; flaw; formal flaw; judicial review; mistake of fact; mistaken conclusion; misuse of authority; probation; procedural flaw; refusal;



  • Judgment 1238


    74th Session, 1993
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    The Tribunal orders the complainant's reinstatement. The organization "must do its utmost to reinstate him in the post which he held [...] or in any comparable one acceptable to him. Only if that proved impossible should it pay him additional damages equivalent to the salary, allowances and other entitlements which he would have received over a period of two years had he been reinstated in its employ as from the date of this judgment."

    Keywords:

    allowance; compensation; complaint allowed; complaint allowed in part; date; decision quashed; flaw; judgment of the tribunal; post; post held by complainant; reinstatement; salary; termination;

    Consideration 4

    Extract:

    "An employee who is wrongfully dismissed is ordinarily entitled to reinstatement. But the Tribunal may refuse to order it if it is not possible or advisable. It would not, for instance, order reinstatement if the circumstances of the dismissal were such that it would no longer be reasonably possible for the employee to perform his duties effectively or harmoniously or for the employer to continue to feel confidence or trust in him."

    Keywords:

    complaint allowed; complaint allowed in part; decision quashed; flaw; organisation's interest; reinstatement; termination; tribunal; working relations;

    Consideration 4

    Extract:

    "Even if the Director-General has discretion to refuse reinstatement 'in the interest of the organization' he must exercise it fairly and reasonably after considering all the material facts. Here the facts were that the complainant had throughout had irreproachable appraisal reports. [...] Despite surveillance, without his knowledge, for six months prior to [the incident that led to his dismissal] no wrongdoing, negligence or irregularity on his part was discovered. [...] The Director-General has failed to take into consideration the above material facts and has erred in treating the complainant as guilty of a 'cover-up'. The refusal of reinstatement was thus not a proper exercise of whatever discretion he had in the matter."

    Keywords:

    complainant; complaint allowed; complaint allowed in part; decision quashed; discretion; disregard of essential fact; flaw; limits; mistake of fact; negligence; organisation; organisation's interest; performance report; refusal; reinstatement; right; termination;



  • Judgment 1200


    73rd Session, 1992
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Summary

    Extract:

    The complainants dispute the amendment of a provision concerning pensionable remuneration in the Staff Regulations of the International Training Centre of the ILO at Turin. They allege that the impugned decision is unlawful because it was in breach of the duty to consult the Staff Relations Committee under Articles 0.3 and 10.2(a) of the Staff Regulations. The Tribunal observes that the principle embodied in these provisions is plain: cooperation between staff and management. The sequence of events shows that the organisation did not follow the prescribed procedure. The Tribunal holds that when the Centre wishes to amend its Staff Regulations "it is making a decision of its own and must abide by the rules of its own making. [...] its failure [to do so] in this instance was unlawful and has the effect of avoiding the new text of [the provision]. [...] Since the individual decisions under challenge rest on an improperly made amendment to the Staff Regulations they are unlawful."

    Reference(s)

    Organization rules reference: ARTICLES 0.3 AND 10.2 (A) OF THE ITC STAFF REGULATIONS

    Keywords:

    advisory body; amendment to the rules; complaint allowed; consultation; decision quashed; due process; flaw; general principle; judicial review; patere legem; procedural flaw; procedure; staff regulations and rules;



  • Judgment 1199


    73rd Session, 1992
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 3

    Extract:

    A "point on which the Organisation is mistaken is that the Tribunal may and will entertain pleas of flaws in the decision-making process of the ILO which may entail examining the decision-making process in the United Nations."

    Keywords:

    competence of tribunal; coordinated organisations; flaw; judicial review; organisation's duties; rule of another organisation;



  • Judgment 1190


    73rd Session, 1992
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Summary

    Extract:

    Under WHO Staff Rule 1230.4 an official who has appealed to the Appeals Board is entitled to challenge two of its members. One of the complainants exercised that right but had his challenge rejected. There was therefore a serious flaw in the internal appeal procedure. The material issue is whether the Director-General was entitled to treat the Board's report as being in line with the material rules. The report itself discloses that the rights of one of the complainants had been ignored. The Tribunal holds that "the Director-General has a duty to enforce the rules. He knew of the breach and should have rejected the report insofar as it concerned [the complainant] who objected to it as not being in accordance with those rules: he was not entitled to proceed as if no breach had occurred."

    Reference(s)

    ILOAT reference: ARTICLE VIII OF THE STATUTE
    Organization rules reference: WHO STAFF RULE 1230.4

    Keywords:

    challenge of member; complaint allowed; complaint allowed in part; composition; due process; flaw; internal appeal; internal appeals body; procedure; recommendation; report; staff regulations and rules;



  • Judgment 1188


    73rd Session, 1992
    Universal Postal Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    "An item that formed part of the internal appeal proceedings should be at the Tribunal's disposal since it cannot otherwise appraise the background to the impugned decision and determine whether it shows any flaw. Further submissions are therefore required to complete the case records."

    Keywords:

    decision; disclosure of evidence; flaw; further submissions; interlocutory order; internal appeal; internal appeals body; procedure; recommendation; report;



  • Judgment 1183


    73rd Session, 1992
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    "The purpose of probation is to find out whether a probationer has the mettle to make a satisfactory career in the organization. The competent authority will determine [...] whether or not to confirm the appointment and must be allowed the utmost measure of discretion in deciding whether someone [...] shows, not just the professional qualifications, but also the personal attributes for the particular post in which he is to be working. Only where the Tribunal finds the most serious or glaring flaw in the exercise of the Director-General's discretion will it interfere."

    Keywords:

    career; discretion; flaw; judicial review; post; probation; purpose; qualifications;

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Last updated: 19.09.2019 ^ top