ILO is a specialized agency of the United Nations
ILO-en-strap
Site Map | Contact français
> Home > Triblex: case-law database > By thesaurus keyword > discretion

Judgment No. 4467

Decision

The complaint is dismissed.

Summary

The complainant challenges the lawfulness of the recruitment process and the resulting appointment for the post of Client Relationship Manager, for which he had applied.

Judgment keywords

Keywords

selection procedure; complaint dismissed

Consideration 2

Extract:

The Tribunal’s case law has it that a staff appointment by an international organisation is a decision that lies within the discretion of its executive head and is subject to only limited review. Such a decision 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 fact or of law, or if some material fact was overlooked, or if there was abuse of authority, or if a clearly wrong conclusion was drawn from the evidence. Nevertheless, anyone who applies for a post to be filled by some process of selection is entitled to have her or his application considered in good faith and in keeping with the basic rules of fair and open competition. That is a right which every applicant must enjoy, whatever her or his hope of success may be. An organisation must abide by the rules and the general precepts of law on selection, and, when the process proves to be flawed, the Tribunal can quash any resulting appointment, albeit on the understanding that the organisation must ensure that the successful candidate is shielded from any injury which may result from the cancellation of her or his appointment, which she or he accepted in good faith. However, as the selection of candidates is necessarily based on merit and requires a high degree of judgement on the part of those involved in the selection process, a complainant must demonstrate that there was a serious defect in the selection process which impacted on the consideration and assessment of her or his candidature. It is not enough simply to assert that one is better qualified than the selected candidate (see, for example, Judgments 4023, consideration 2, and 4001, consideration 4).

Reference(s)

ILOAT Judgment(s): 4001, 4023

Keywords

discretion; selection procedure; role of the tribunal

Consideration 7

Extract:

The case law states, in consideration 5 of Judgment 4081, for example, that the reasons for a decision must be sufficiently explicit to enable the person concerned to take an informed decision accordingly; they must also enable the competent review bodies to determine whether the decision is lawful and, in particular, the Tribunal to exercise its power of review. However, the Tribunal has also stated, in consideration 4 of Judgment 2978, that when the result of a competition is announced and, more broadly when the Administration chooses between candidates, the duty to state the reasons for the choice does not mean that they must be notified at the same time as the decision. These reasons may be disclosed at a later date, for example in the context of a procedure arising from a challenge to the selection process […].

Reference(s)

ILOAT Judgment(s): 2978, 4081

Keywords

selection procedure; motivation

Consideration 8

Extract:

The complainant alleges that his right to a fair internal appeal procedure was violated as the IAEA did not provide him with proof of the successful candidate’s qualifications. He argues that, contrary to the Tribunal’s case law that such information cannot be withheld on grounds of confidentiality, he did not have all of the evidence on which the contested decision was based. He submits that in the absence of the disclosure there is no evidence that when the successful candidate submitted her application she possessed the required qualifications to fill the contested post. The allegation is unfounded. In the first place, the case law states that a staff member must, as a general rule, have access to all evidence on which the authority bases or intends to base its decision against him, and, under normal circumstances, such evidence cannot be withheld on grounds of confidentiality. The decision to appoint the successful candidate, which the complainant centrally contests, was not a decision which was made against the complainant. Moreover, perhaps as the case was sent directly to the Tribunal, the complainant only requested the disclosure of documents during the course of these proceedings with no evidence that the decision which he contests was based on some of the requested documents.

Keywords

disclosure of evidence; selection procedure

Consideration 17

Extract:

The claim of abuse of authority is unsubstantiated as the complainant provides no evidence to prove that the decision to appoint the successful candidate was taken in bad faith or for an improper purpose (see, for example, Judgments 4261, consideration 10, and 4345, consideration 6).

Reference(s)

ILOAT Judgment(s): 4261, 4345

Keywords

abuse of power

Consideration 17

Extract:

Neither has [the complainant] provided evidence of sufficient quality and weight to prove that the decision was based on unequal treatment, bias or favouritism (see, for example, Judgments 3380, consideration 9, and 4408, considerations 21 and 22, and the judgments cited therein) as he contends.

Reference(s)

ILOAT Judgment(s): 3380, 4408

Keywords

unequal treatment



 
Last updated: 05.05.2022 ^ top