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Discretion (547, 548, 549, 550, 551,-666)

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Keywords: Discretion
Total judgments found: 546

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  • Judgment 4427


    132nd Session, 2021
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to maintain his transfer to a patent examiner post.

    Consideration 2

    Extract:

    [C]onsistent precedent has it that an executive head of an international organization has wide discretionary powers to manage the affairs of the organization pursuant to the policy directives and its rules and that such decisions are consequently subject to only limited review. The Tribunal will ascertain whether a transfer decision is taken in accordance with the relevant rules on competence, form or procedure; rests upon a mistake of fact or law or whether it amounts to abuse of authority. The Tribunal will not rule on the appropriateness of the decision as it will not substitute the organization’s view with its own (see, for example, Judgment 4084, under 8).

    Reference(s)

    ILOAT Judgment(s): 4084

    Keywords:

    discretion; judicial review; transfer;



  • Judgment 4412


    132nd Session, 2021
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decisions not to renew her short-term appointment beyond 31 March 2016 and not to select her for a G-3 position advertised through a vacancy announcement.

    Consideration 7

    Extract:

    The Tribunal has consistently held that the appointment by an international organisation of a candidate to a position is a decision that lies within the discretion of its executive head. It is subject only to limited review and may be set aside only if it was taken without authority, or in breach of a rule of form or 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. This formulation is intended to highlight the need for a complainant to demonstrate that there was a serious defect in the selection process which impacted on the consideration and assessment of her or his candidature (see, for example, Judgment 4023, consideration 2).

    Reference(s)

    ILOAT Judgment(s): 4023

    Keywords:

    appointment; discretion; judicial review; selection procedure;



  • Judgment 4408


    132nd Session, 2021
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant disputes the lawfulness and outcome of a competition procedure in which she participated.

    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. Such a decision is subject to only limited review 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 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 (see, for example, Judgment 3537, consideration 10).

    Reference(s)

    ILOAT Judgment(s): 3537

    Keywords:

    appointment; competition; discretion; judicial review;



  • Judgment 4405


    132nd Session, 2021
    International Criminal Court
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decisions to abolish her post and terminate her fixed-term appointment.

    Consideration 2

    Extract:

    The Tribunal draws attention to its settled case law under which decisions concerning restructuring within an international organisation, including the abolition of posts, may be taken at the discretion of the executive head of the organisation and are consequently subject to only limited review. Accordingly, the Tribunal will ascertain whether such decisions are taken in accordance with the relevant rules on competence, form or procedure, whether they rest upon a mistake of fact or of law or whether they constituted abuse of authority. The Tribunal will not rule on the appropriateness of a restructuring or of decisions relating to it and it will not substitute the organisation’s view with its own (see, for example, Judgments 4004, consideration 2, 4180, consideration 3, and the case law cited therein).

    Reference(s)

    ILOAT Judgment(s): 4004, 4180

    Keywords:

    discretion; judicial review; reorganisation;

    Consideration 3

    Extract:

    In exercising the discretionary authority conferred by this provision, the Registrar must comply with the relevant statutory provisions and the case law.

    Keywords:

    discretion;



  • Judgment 4400


    131st Session, 2021
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, a former official of the International Labour Office, impugns the decisions of the Director-General to issue a reprimand against him, to revoke his appointment as a Director, to appoint another person to that post and, finally, to discharge him with notice.

    Consideration 29

    Extract:

    Under 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, for example, Judgments 3640, consideration 29, 3927, consideration 13, and 3944, consideration 12).

    Reference(s)

    ILOAT Judgment(s): 3640, 3927, 3944

    Keywords:

    disciplinary measure; discretion; proportionality;



  • Judgment 4391


    131st Session, 2021
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to promote him in the 2008 promotion exercise.

    Consideration 10

    Extract:

    Given the inaccuracy in the reasons given for not promoting the complainant, which also means that the discretion was exercised in an arbitrary manner, the […] impugned decision is flawed and will be set aside (see, for example, Judgment 3647, under 14).

    Reference(s)

    ILOAT Judgment(s): 3647

    Keywords:

    decision quashed; discretion; mistake of fact; motivation;

    Consideration 4

    Extract:

    The Tribunal’s role in cases which challenge a non-promotion decision is a limited one. Staff members of an international organization do not have an automatic right to promotion. It is established that an organization has a wide discretion in deciding whether to promote a staff member. The Tribunal will only interfere if the decision was taken without authority; if it was based on an error of law or fact, some material fact was overlooked, or a plainly wrong conclusion was drawn from the facts; if it was taken in breach of a rule of form or of procedure; or if there was an abuse of authority. Additionally, the Tribunal has stated that since the selection of candidates for promotion is necessarily based on merit and requires a high degree of judgement on the part of those involved in the process, a person who challenges it must demonstrate a serious defect in the decision. The breach of a procedural rule is a flaw on the basis of which a decision not to promote a staff member may be set aside (see Judgment 4066, under 3).

    Reference(s)

    ILOAT Judgment(s): 4066

    Keywords:

    discretion; promotion;



  • Judgment 4389


    131st Session, 2021
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to reimburse in full the costs he incurred in the internal appeal proceedings.

    Consideration 8

    Extract:

    It is well settled in the case law that the Tribunal will only set aside a discretionary decision if it was taken without authority, or if it was tainted with a procedural or formal flaw or based on a mistake of fact or of law, or if essential facts were overlooked, or if there was abuse of authority, or if clearly mistaken conclusions were drawn from the evidence (see, for example, Judgments 1969, consideration 7, 2896, consideration 7, and 3317, consideration 5). Thus, to successfully impugn a discretionary decision, a complainant must demonstrate a fundamental flaw in the decision-making process.

    Reference(s)

    ILOAT Judgment(s): 1969, 2896, 3317

    Keywords:

    discretion;



  • Judgment 4370


    131st Session, 2021
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision to retire him at the end of the month in which he reached the age of 62, even though he had not completed the five years of contributions required for the payment of a retirement pension by the United Nations Joint Staff Pension Fund.

    Consideration 8

    Extract:

    [I]t should be borne in mind that the Tribunal has consistently held that a decision to retain an official beyond the normal retirement age is an exceptional measure over which the executive head of the organisation exercises wide discretion and which is subject to only limited review by the Tribunal (see, for example, Judgment 3884, consideration 2).

    Reference(s)

    ILOAT Judgment(s): 3884

    Keywords:

    discretion; retirement age;



  • Judgment 4368


    131st Session, 2021
    International Olive Council
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the cancellation of a competition procedure in which she participated.

    Consideration 4

    Extract:

    [T]he executive head of an international organisation may cancel a competition in the interests of the service with a view, in particular, to holding a new competition on different terms if need be (see, for example, Judgments 791, consideration 4, 1223, consideration 31, 1771, consideration 4(e), 1982, consideration 5(a), 2075, consideration 3, 3647, consideration 9, 3920, consideration 18, 4216, consideration 3, or 4283, consideration 2).
    However, such a decision can never be arbitrary. The Tribunal must therefore ascertain whether the condition relating to the interests of the organisation required under the case law in question is actually met and whether the cancellation of the initial process is based on a legitimate reason (see, in particular, Judgments 3647, consideration 9, and 3920, consideration 18, cited above).

    Reference(s)

    ILOAT Judgment(s): 791, 1223, 1771, 1982, 2075, 3647, 3920, 4216, 4383

    Keywords:

    competition; discretion;



  • Judgment 4363


    131st Session, 2021
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, who states that he was the victim of retaliation, claims redress for the injury he considers he has suffered.

    Consideration 10

    Extract:

    It is convenient to recall that in Judgment 3948, consideration 2, where a decision not to renew a contract was challenged, the Tribunal stated that its scope of review is limited as an organization enjoys wide discretion in deciding whether or not to extend a fixed-term appointment and that the exercise of such discretion is subject to limited review because the Tribunal respects an organization’s freedom to determine its own requirements and the career prospects of staff. Accordingly, the Tribunal will not substitute its own assessment for that of the organization and a decision in the exercise of this discretion may only be quashed or set aside for unlawfulness or illegality in the sense that it was taken in breach of a rule of form or procedure; or if it is based on an error of fact or of law, if some essential fact was overlooked; or if there was an abuse or misuse of authority; or if clearly mistaken conclusions were drawn from the evidence.

    Reference(s)

    ILOAT Judgment(s): 3948

    Keywords:

    discretion; fixed-term; non-renewal of contract;



  • Judgment 4316


    130th Session, 2020
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainants challenge the introduction of fixed “bridging days” to balance the number of public holidays at the different places of employment.

    Consideration 18

    Extract:

    The fact that some staff were unhappy with the choice does not mean that the change was unlawful and that the previous rules could not be changed. The Tribunal recognizes that it is not always possible to cater to the needs of each individual employee, as the product or result of the work being done is often justifiably considered a higher priority over the individual’s personal interests (see Judgment 2587, under 10). The basic idea underlying the complaints, that the only possible choice was the most favorable for the staff, is wrong as it denies the President’s discretion.

    Reference(s)

    ILOAT Judgment(s): 2587

    Keywords:

    discretion;

    Consideration 17

    Extract:

    A decision taken in the exercise of this broad discretion may only be quashed for unlawfulness for breach of general principles of law, of a rule of form or procedure; or if it is unquestionably unreasonable. “It must be recalled that the Tribunal is not competent to rule on the merits of [the Organisation]’s choices in respect of its staff management, for they form part of the general employment policy that an organisation is free to pursue in accordance with its general interests” (see Judgments 3827, under 7, 3225, under 6, and 2061, under 5).

    Reference(s)

    ILOAT Judgment(s): 2061, 3225, 3827

    Keywords:

    discretion; judicial review;



  • Judgment 4314


    130th Session, 2020
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the rejection of her request for the reclassification of her post.

    Consideration 6

    Extract:

    Consistent precedent has it that the process of classifying posts in international organisations constitutes an act of technical evaluation, and, accordingly, it is not for the Tribunal to weigh, compare and/or determine the relative merits of ratings which are thereby accorded. The Tribunal has consistently stated, for example in Judgment 3589, consideration 4, that the grounds for reviewing the classification of a post are limited and ordinarily a classification decision would only be set aside if it was taken without authority, had been made in breach of the rules of form or procedure, was based on an error of fact or law, was made having overlooked an essential fact, was tainted with abuse of authority or if a truly mistaken conclusion had been drawn from the facts. This is because the classification of posts involves the exercise of value judgements as to the nature and extent of the duties and responsibilities of the posts and it is not the Tribunal’s role to undertake this process of evaluation. The grading of posts is a matter within the discretion of the executive head of the organisation, or the person acting on her or his behalf (see also Judgments 4024, consideration 3, 4164, consideration 4, 4186, consideration 6, and 4193, consideration 2).

    Reference(s)

    ILOAT Judgment(s): 3589, 4024, 4164, 4186, 4193

    Keywords:

    discretion; post classification;



  • Judgment 4312


    130th Session, 2020
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to reclassify his post.

    Consideration 3

    Extract:

    The classification of posts necessarily involves the exercise of value judgements as to the nature and extent of the duties and responsibilities of the posts and it is not the Tribunal’s role to undertake that evaluation (see, for example, Judgment 3294, consideration 8). That classification is a matter within the discretion of the executive head of the organisation or the person acting on her or his behalf (see, for example, Judgments 3082, consideration 20, 4040, consideration 3, and 4186, consideration 6). That is why it is well established in the Tribunal’s case law that the grounds for reviewing the classification of a post are limited and ordinarily a classification decision would only be set aside if it was taken without authority, was made in breach of the rules of form or procedure, was based on an error of fact or law, overlooked an essential fact, was tainted with abuse of authority or if a truly mistaken conclusion was drawn from the facts (see, for example, Judgments 1647, consideration 7, and 1067, consideration 2).

    Reference(s)

    ILOAT Judgment(s): 1067, 1647, 3082, 3294, 4040, 4186

    Keywords:

    discretion; judicial review; post classification;



  • Judgment 4301


    130th Session, 2020
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decisions to withdraw a vacancy notice and re-advertise it, and the ad interim appointment of a colleague in the meantime.

    Consideration 5

    Extract:

    A decision concerning the advertising of a position, such as the two decisions presently contested by the complainant, is discretionary and may only be set aside if it was taken in breach of a rule of form or procedure; or if it was based on an error of fact or of law, if some essential fact was overlooked; or if there was an abuse or misuse of authority; or if clearly mistaken conclusions were drawn from the evidence (see, for example, Judgments 3299, under 6, 2861, under 83, and 2850, under 6).

    Reference(s)

    ILOAT Judgment(s): 2850, 2861, 3299

    Keywords:

    discretion; vacancy notice;



  • Judgment 4290


    130th Session, 2020
    World Trade Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision of the Director-General not to promote her in the 2018 performance-based promotion exercise.

    Consideration 8

    Extract:

    The Tribunal recalled, in Judgment 4066, consideration 3, that its case law does not guarantee to staff members of an international organization an automatic right to promotion (see Judgment 3495, under 11). It is also well established that an organization has a wide discretion in deciding whether to promote a staff member. For this reason, such decisions are subject to limited review. The Tribunal will only interfere if the decision was taken without authority; if it was based on an error of law or fact, some material fact was overlooked, or a plainly wrong conclusion was drawn from the facts; if it was taken in breach of a rule of form or of procedure; or if there was an abuse of authority (see also Judgment 2835, under 5). Additionally, the Tribunal has stated that since the selection of candidates for promotion is necessarily based on merit and requires a high degree of judgement on the part of those involved in the process, a person who challenges it must demonstrate a serious defect in the decision (see Judgment 1827, under 6). The breach of a procedural rule is a flaw on the basis of which a decision not to promote a staff member may be set aside (see Judgment 1109, under 4).

    Reference(s)

    ILOAT Judgment(s): 1109, 1827, 2835, 3495, 4066

    Keywords:

    discretion; judicial review; promotion;



  • Judgment 4283


    130th Session, 2020
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to cancel a competition in which he was a candidate.

    Considerations 2-3

    Extract:

    According to the Tribunal’s settled case law, the executive head of an international organisation may cancel a competition in the interests of the service if, among other reasons, it becomes apparent that the competition will not enable the post concerned to be suitably filled, and the opening of such a procedure does not therefore imply that a candidate will necessarily be appointed to that post (see, for example, Judgments 791, under 4, 1771, under 4(e), 1982, under 5(a), 2075, under 3, 3647, under 9, or 3920, under 18, and 4216, under 3).
    According to the same case law, the decision not to fill an advertised post – like any decision to appoint an official in the opposite case where an appointment is made – falls within the discretion of the executive head of the organisation and is therefore be subject to only limited review by the Tribunal (see, in particular, aforementioned Judgment 791, under 4, or aforementioned 1771, under 6). However, it is within the Tribunal’s purview to verify whether that decision was taken in accordance with the rules on competence, form and procedure, whether it involved an error of fact or of law, whether it failed to take account of material facts, whether it drew clearly incorrect conclusions from the evidence or whether it constituted misuse of authority (see, for example, Judgments 1689, under 3, 2060, under 4, 2457, under 6, 3537, under 10, or 3652, under 7, and [...] 4216, under 4).

    Reference(s)

    ILOAT Judgment(s): 791, 1689, 1771, 1982, 2060, 2075, 2457, 3537, 3647, 3652, 3920, 4216

    Keywords:

    competition cancelled; discretion;



  • Judgment 4282


    130th Session, 2020
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to terminate his appointment at the end of his probationary period.

    Considerations 2-3

    Extract:

    It is useful to recall the general principles that govern setting aside a decision to dismiss a staff member of an international organization whose performance during a probationary period is considered inadequate. It was relevantly restated in consideration 4 of Judgment 4212 that the purpose of probation is to permit an organization to assess the probationer’s suitability for a position, and, for that reason, the Tribunal has consistently recognized that a high degree of deference ought to be accorded to an organisation’s exercise of its discretion regarding decisions concerning probationary matters. This includes the confirmation of appointment, the extensions of a probationary term, and the identification of its own interests and requirements. Accordingly, it has been consistently stated that a discretionary decision of this nature will only be set aside “if taken without authority or in breach of a rule of form or of procedure, or if 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”. In Judgment 4212, the Tribunal also reaffirmed that “where the reason for refusal of confirmation is unsatisfactory performance, [it] will not replace the organisation’s assessment with its own”.
    It is also useful to reiterate an international organization’s obligations regarding a staff member’s probation period that are well settled in the case law. For example, in Judgment 4212, consideration 5, the Tribunal stated that such a period is to provide an organisation with an opportunity to assess an individual’s suitability for a position. In the course of making this assessment, an organisation must establish clear objectives against which performance will be assessed; provide the necessary guidance for the performance of the duties; identify in a timely fashion the unsatisfactory aspects of the performance so that remedial steps may be taken; and give a specific warning where continued employment is in jeopardy. It was also stated in Judgment 3678, consideration 1, that a probationer is “entitled to have objectives set in advance so that she or he will know the yardstick by which future performance will be assessed”.

    Reference(s)

    ILOAT Judgment(s): 3678, 4212

    Keywords:

    discretion; performance evaluation; probationary period;



  • Judgment 4273


    130th Session, 2020
    European Organization for Nuclear Research
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainants challenge their classification in the new career structure established following the 2015 five-yearly review.

    Consideration 6

    Extract:

    According to the Tribunal’s case law, an organisation has broad discretion when altering salary structures and grading systems (see Judgments 2778, under 7, 3921, under 11, and 4134, under 26 and 49) and classifying officials individually (see, for example, Judgment 1495, under 14). Decisions on such matters are therefore subject to only limited review by the Tribunal, which will censure them only if they have been taken in breach of a rule of form or procedure, if they are based on an error of fact or law, if some essential fact was overlooked, if clearly mistaken conclusions were drawn from the evidence or if there was misuse of authority.

    Reference(s)

    ILOAT Judgment(s): 1495, 2778, 3921, 4134

    Keywords:

    discretion; grade; judicial review; salary;

    Consideration 16

    Extract:

    The actual design of the new career structure (for example, the structure of grades and their number) and the new merit recognition system (for example, the choice of financial incentives and their amount) falls within the Organization’s discretion and, given the Tribunal’s limited power of review in this matter, it is not for the Tribunal to substitute its assessment for that of the Organization (see Judgments 2778, under 7, 3921, under 11, and 4134, under 26 and 49).

    Reference(s)

    ILOAT Judgment(s): 2778, 3921, 4134

    Keywords:

    career; discretion;



  • Judgment 4259


    129th Session, 2020
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to extend his appointment beyond the statutory retirement age.

    Consideration 8

    Extract:

    The impugned decision correctly states that the President’s decision whether to propose to the Administrative Council a prolongation of service of a member of the Boards of Appeal is an exceptional measure and the decision is subject to only limited review. The Tribunal stated as follows in Judgment 3970, under 2:
    “The Tribunal has consistently held that a decision to retain an official beyond the normal retirement age is an exceptional measure over which the executive head of an organisation exercises wide discretion. Such a decision is therefore subject to only limited review by the Tribunal, which will interfere only if the decision was taken without authority, if a rule of form or procedure was breached, if it was based on a mistake of fact or of law, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority [...].”

    Reference(s)

    ILOAT Judgment(s): 3970

    Keywords:

    discretion; extension beyond retirement age;



  • Judgment 4254


    129th Session, 2020
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to extend his appointment beyond the statutory retirement age.

    Consideration 3

    Extract:

    As the Tribunal has consistently held, a decision to retain an official beyond the normal retirement age is an exceptional measure over which the executive head of an organisation exercises wide discretion. Such a decision is therefore subject to only limited review by the Tribunal, which will interfere only if the decision was taken without authority, if a rule of form or procedure was breached, if it was based on a mistake of fact or of law, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgments 1143, consideration 3, 2845, consideration 5, 3285, consideration 10, 3765, consideration 2, or 3884, consideration 2).

    Reference(s)

    ILOAT Judgment(s): 1143, 2845, 3285, 3765, 3884

    Keywords:

    age limit; discretion; retirement age;

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Last updated: 23.09.2021 ^ top