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Flaw (557, 558, 559,-666)

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Keywords: Flaw
Total judgments found: 241

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  • Judgment 1175


    73rd Session, 1992
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    "As the case law makes plain - for example, judgments 736 [...] and 1161 [...] - a decision not to confirm a probationer's appointment is a matter of discretion for the President. Although the Tribunal may review the lawfulness of dismissal of a probationer, the nature of the decision is such that its power of review is limited. It will set aside the decision only if there was a mistake of fact or law, or a formal or procedural flaw, or if some essential fact was overlooked, or if a clearly mistaken conclusion was drawn from the evidence, or if there was abuse of authority."

    Reference(s)

    ILOAT Judgment(s): 736, 1161

    Keywords:

    case law; contract; discretion; disregard of essential fact; flaw; formal flaw; grounds; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; probation; procedural flaw; termination;



  • Judgment 1161


    72nd Session, 1992
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 4

    Extract:

    "As the case law makes plain - for example, Judgments 687 [...] and 736 [...] - a decision not to confirm a probationer's appointment is a matter of discretion for the [executive head] and the Tribunal will not substitute its own judgment for the organisation's in matters that require such exercise of discretion. Although the Tribunal may review the lawfulness of dismissal of a probationer, the nature of the decision is such that its power of review is limited. It will set aside the decision only if there was a mistake of fact or law, or a formal or procedural flaw, or if some essential fact was overlooked, or if a clearly mistaken conclusion was drawn from the evidence, or if there was abuse of authority."

    Reference(s)

    ILOAT Judgment(s): 687, 736

    Keywords:

    case law; discretion; disregard of essential fact; flaw; formal flaw; judicial review; mistake of fact; mistaken conclusion; misuse of authority; probation; procedural flaw; termination;



  • Judgment 1131


    71st Session, 1991
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 9

    Extract:

    "The answer to [the complainant's] claim to moral damages is that such a claim will not lie just because the decision was unlawful. In this case the purpose of the impugned decision [to abolish his post for budgetary reasons] was quite proper and there was nothing demeaning about it."

    Keywords:

    condition; decision; flaw; moral damages; moral injury;



  • Judgment 1109


    71st Session, 1991
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    After recommending that the complainant should get a personal promotion, the Selection Board held a further meeting at the instance of the Deputy Director-General and shifted ground. The Tribunal holds that "in only two cases may an internal body be asked to think again. One is where something unforeseeable and of decisive moment occurs after it has reported, and the other is where there comes to light some fact or evidence, again of cardinal importance, that it did not know of or could not have known of before it reported." Since those conditions were not met in the instant case, the decision is tainted with a procedural flaw and must be quashed. The complainant is sent back to the Organisation for his case to be reviewed.

    Keywords:

    advisory body; case reopened; case sent back to organisation; complaint allowed; condition; decision quashed; flaw; internal appeals body; organisation; procedural flaw; request by a party; selection board;

    Consideration 4

    Extract:

    In keeping with the scheme for "personal promotion" brought in by Circular 334, "promotion is at the Director-General's discretion, his decision is subject only to limited review, and it may not ordinarily be set aside unless there is some particular fatal flaw. Breach of a procedural rule is such a flaw."

    Reference(s)

    Organization rules reference: ILO CIRCULAR 334 (SERIES 6) OF 20 JULY 1985

    Keywords:

    discretion; flaw; judicial review; personal promotion; procedural flaw; promotion;



  • Judgment 1095


    70th Session, 1991
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Summary

    Extract:

    The complainant's fees for difficult confinement were refunded at the 100 per cent rate up to a maximum limit reckoned by likening the treatment she received to a surgical operation. Though the Tribunal finds nothing wrong with setting maximum limits in general it holds that there was no valid limit at the material time on costs incurred for difficult confinements and that the complainant was entitled to the refund of her confinement expenses in full.

    Keywords:

    amount; analogy; case sent back to organisation; complaint allowed; decision quashed; flaw; insurance benefit; maximum limit; no provision; rate; reckoning;



  • Judgment 1094


    70th Session, 1991
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 33

    Extract:

    The complainants object to statements of refund for confinement fees. In view of "the lack of consistency and clarity found in the reckonings, the challenged decisions must be set aside. The cases are sent back so that Eurocontrol may take new decisions according to the principles set out above and in such a way as to permit the complainants to check them."

    Keywords:

    case sent back to organisation; decision quashed; flaw; insurance benefit;



  • Judgment 1082


    70th Session, 1991
    Intergovernmental Council of Copper Exporting Countries
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 18

    Extract:

    "By virtue of their contractual relationship and the trust that therefore prevails between them, an organisation owes its employee a duty to declare its intention of dismissing him and to let him plead his case. The principle is asserted in Judgment 907 [...] under 4. Although the complainant presumably knew of the CIPEC's plight and the need for reform she was never told of the intention of dismissing her."

    Reference(s)

    ILOAT Judgment(s): 907

    Keywords:

    abolition of post; budgetary reasons; complaint allowed; decision quashed; duty to inform; flaw; organisation's duties; right to reply; termination;



  • Judgment 1080


    70th Session, 1991
    International Criminal Police Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 8

    Extract:

    The complainants object to the amount of their terminal entitlements and point out that another official got a much higher amount through an error made by the organization. "The unlawful handling of one case does not entitle the complainants to the same unlawful treatment."

    Keywords:

    amount; equal treatment; exception; flaw; terminal entitlements;



  • Judgment 1049


    69th Session, 1990
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Summary

    Extract:

    The complainants, who applied for a vacant post put up for competition, wish to have the results set aside. The Tribunal is satisfied on the evidence that the selection procedure shows several serious flaws, of which at least two are fatal: in breach of Manual provision II.3.340 no short-list had been drawn up and the Director-General drew had drawn mistaken conclusions from the evidence before him in dismissing the Appeals Boards' findings of improprieties.

    Reference(s)

    Organization rules reference: WHO MANUAL PROVISION II.3.340

    Keywords:

    application for quashing; competition; complaint allowed; decision quashed; flaw; mistaken conclusion; procedural flaw; procedure; selection board;



  • Judgment 1022


    69th Session, 1990
    International Criminal Police Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 9 and 10, Summary

    Extract:

    The Staff Rules provide for a two-month period of consideration to allow the official to decide whether or not to accept the transfer offer. But the decision notified to the complainant failed to allow the two-month limit and was therefore tainted by a formal flaw. As the flaw does not go to the essence of the decision, the Tribunal held that the organization was liable on technical grounds.

    Keywords:

    complaint allowed in part; flaw; formal flaw; time limit; transfer;



  • Judgment 1017


    69th Session, 1990
    International Fund for Agricultural Development
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Summary

    Extract:

    Paragraph 3(v) of an IFAD Administrative Instruction on probation under fixed-term appointments reads: "Where it is deemed by the head of department that the staff member's performance is less than satisfactory, he/she will be immediately informed by the head of department that a decision from the President will be sought to terminate his/her services by letting the period of probation lapse." The President's decision to terminate the complainant's appointment at the end of the extended period of probation was flawed by non-compliance with this requirement. because the decision was in breach of the procedural rule, the Tribunal will set it aside and award the complainant substantial compensation for the improper termination of her contract and for moral damages.

    Keywords:

    complaint allowed; decision quashed; duty to inform; flaw; moral damages; moral injury; probation; procedural flaw; termination; unsatisfactory service;



  • Judgment 1010


    68th Session, 1990
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    the complainant's internal appeal against termination after the extension of his probation is time-barred. he argues "that an unregistered letter from someone other than the director-general cannot constitute proper notice of dismissal or of extension of probation. [the] plea fails... provided that the staff member is given official notice of a decision the time limit starts to run and there is no need for special procedural formalities. and the absence of the director-general's signature can have no effect on the time limit for appeal even though it may in some circumstances warrant setting the decision aside."

    Keywords:

    consequence; decision; flaw; formal flaw; internal appeal; receivability of the complaint; start of time limit; time bar; time limit;



  • Judgment 1006


    68th Session, 1990
    World Tourism Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 2

    Extract:

    in 1988 the secretary-general decided to reverse a decision which the then secretary-general took in 1979 to grant the complainant non-local status. the reason for the reversal was that the original decision had not been warranted. the tribunal holds that "even if that decision was based on facts that were wrong and even if there was misinterpretation of regulation 16 [now staff rule 14.6 on how to determine an official's home], it was in any event too late by 1988 to reverse a decision that the organization had already abided by for almost nine years." the impugned decision is quashed.

    Reference(s)

    Organization rules reference: RULE 14.6 OF THE WTO STAFF REGULATIONS

    Keywords:

    complaint allowed; decision quashed; flaw; local status; non-local status; time limit; withdrawal of decision;



  • Judgment 1001


    68th Session, 1990
    United Nations Industrial Development Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Summary

    Extract:

    the complainants, who are employed by unido in the general service category, seek the quashing of decisions setting their pay according to the new salary scales brought in as from 1 october 1987. they are objecting to the flat 2.4 per cent salary cut included in scales drawn up on the basis of an international civil service commission recommendation to account for the so-called "commissary benefit". unido staff regulation 6.5(a) says that the pay of staff in the general service category shall be based on "the best prevailing conditions of employment in the locality" (fleming principle). the tribunal holds that for the purpose of establishing parity with local pay the only relevant items are the ones defined in the staff regulations and financial rules of the organisation and paid out of its own funds. it follows that such a benefit as access to the commissary, which is provided for neither in the staff regulations nor in the financial rules and is a form of tax relief bestowed by the host country at no cost to the organisation, may not count in a comparison of this nature. the organization's decision to reduce salaries is unlawful and cannot stand. the cases are sent back to unido for the recalculation of their pay.

    Reference(s)

    Organization rules reference: UNIDO STAFF REGULATION 6.5(A)

    Keywords:

    case sent back to organisation; complaint allowed; decision quashed; elements; enforcement; flaw; flemming principle; fringe benefits; general service category; headquarters agreement; icsc decision; privileges and immunities; reckoning; reduction; salary; scale; staff regulations and rules;



  • Judgment 1000


    68th Session, 1990
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Summary

    Extract:

    the complainants, who are employed by the iaea in the general service category, seek the quashing of decisions setting their pay according to the new salary scales brought in as from 1 october 1987. they are objecting to the flat 2.4 per cent salary cut included in scales drawn up on the basis of an international civil service commission recommendation to account for the so-called "commissary benefit". annex ii.b.1 of the agency's provisional staff regulations says that the pay of staff in the general service category shall be based on "the best prevailing conditions of employment in the locality" (fleming principle). the tribunal holds that for the purpose of establishing parity with local pay the only relevant items are the ones defined in the staff regulations and financial rules of the organisation and paid out of its own funds. it follows that such a benefit as access to the commissary, which is provided for neither in the staff regulations nor in the financial rules and is a form of tax relief bestowed by the host country at no cost to the organisation, may not count in a comparison of this nature. the agency's decision to reduce salaries is unlawful and cannot stand. the cases are sent back to the agency for the recalculation of their pay.

    Reference(s)

    Organization rules reference: ANNEX II.B.1 OF THE IAEA PROVISIONAL STAFF REGULATIONS

    Keywords:

    case sent back to organisation; complaint allowed; decision quashed; elements; enforcement; flaw; flemming principle; fringe benefits; general service category; headquarters agreement; icsc decision; privileges and immunities; reckoning; reduction; salary; scale; staff regulations and rules;



  • Judgment 999


    68th Session, 1990
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 4 and 5

    Extract:

    the complainant was accused of grave misconduct. an inquiry was held into the facts in the absence of the complainant. the tribunal held that "whoever makes inquiries of the kind that were made in this case must be scrupulous in not taking evidence from one party without the other's knowledge. whether or not the evidence did work to the complainant's prejudice is irrelevant. it is sufficient that it might have done so, and it is not the likelihood but the risk of prejudice that is fatal. there can be no certainty that justice will be done if evidence is taken in the absence of one of the parties. the proceedings in the appeal the complainant lodged against the decision [...] to dismiss him show a breach of due process".

    (note: see judgment 2601, under 7)

    Reference(s)

    ILOAT Judgment(s): 2601

    Keywords:

    flaw; inquiry; organisation's duties; right to reply; serious misconduct; termination;

    Consideration 5

    Extract:

    "breach of the staff regulations and of general principles, including breach of due process, is a flaw in the appeal proceedings which also taints the impugned decision, and for that reason the [final] decision [to confirm the complainant's dismissal for grave misconduct] cannot stand. what does stand, however, since it is only the appeal proceedings that were improper, is the prior decision [of dismissal]." "the complainant duly filed his internal appeal with the regional board, and the organization shall resume the internal appeal proceedings. the competent authorities shall reconsider the internal appeal in the light of the submissions already made by the who and by the complainant and any further submissions the parties may make in adversarial proceedings".

    Keywords:

    case sent back to organisation; decision quashed; flaw; internal appeal; procedural flaw; right to reply; serious misconduct; termination;



  • Judgment 997


    68th Session, 1990
    European Southern Observatory
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    "as the tribunal held in judgment 647, provided a communication takes the form of a decision. its lawfulness is immaterial for the purpose of lodging an appeal." in the circumstances of the case the complainant's internal appeal against a decision requiring him to take home leave before a specified date was time-barred. the complaint is irreceivable."

    Reference(s)

    ILOAT Judgment(s): 647

    Keywords:

    consequence; decision; flaw; internal appeal; receivability of the complaint; start of time limit; time bar; time limit;



  • Judgment 994


    68th Session, 1990
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Summary

    Extract:

    Three successive decisions to promote the complainant were taken: a promotion by direct selection from grade G.6 to P.3 as from 1 July 1986; a personal promotion from G.6 to G.7 as from 1 January 1985 and the outcome of a procedure which led to his post being regraded from G.6 to P.3 effective on 1 February 1984. The complainant challenges the Administration's decision to treat the regrading decision as void. The regrading decision was accepted by the complainant and showed no flaw. As it became final on the expiry of the time limit for challenge, the Administration may not go back on it.

    Keywords:

    complaint allowed; condition; cumulative decisions; decision quashed; flaw; personal promotion; post classification; professional category; promotion; time limit; withdrawal of decision;



  • Judgment 990


    68th Session, 1990
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 8

    Extract:

    the tribunal "may not order any increase in [the complainant's] pension in redress for the breach of the regulations since the body that determines the pension is outside its jurisdiction."

    Keywords:

    amount; competence; competence of tribunal; flaw; pension; reckoning; unjspf;



  • Judgment 987


    68th Session, 1990
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 3

    Extract:

    "the right to a hearing, which is a general principle of law, means that the organization may not terminate a staff member unless it has already informed him of its intention and of the grounds for termination. such information must be given before the notification of the termination and not at the same time".

    Keywords:

    complaint allowed; date; decision quashed; duty to inform; flaw; probation; right to reply; termination;

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