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

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  • Judgment 4579


    135th Session, 2023
    Global Fund to Fight AIDS, Tuberculosis and Malaria
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to discharge him.

    Consideration 4

    Extract:

    The Tribunal’s case law has it that disciplinary decisions are within the discretionary authority of the executive head of an international organization and are subject to limited review. The Tribunal must determine whether 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 again, whether conclusions which are clearly false had been drawn from the documents in the dossier, or finally, whether there was a misuse of authority (see Judgment 3297, consideration 8, quoting Judgment 191). Additionally, the Tribunal shall not interfere with the findings of an investigative body in disciplinary proceedings unless there was a manifest error (see Judgments 4444, consideration 5, and 4065, consideration 5).

    Reference(s)

    ILOAT Judgment(s): 191, 3297, 4065, 4444

    Keywords:

    disciplinary procedure; discretion; role of the tribunal;



  • Judgment 4565


    134th Session, 2022
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to impose on her the disciplinary sanction of downgrading for having engaged in gainful employment while on non-active status without prior authorisation.

    Consideration 5

    Extract:

    In the impugned decision […], the President was […] following the Committee’s conclusions (including that the complainant had acted in good faith) and recommendation which, in turn, was based, […] on a balanced and thoughtful consideration by the Committee of all the circumstances. In such a case, an executive head does not need to fully motivate acceptance and adoption of the conclusions and applicable recommendation (see Judgment 4044, consideration 7), particularly bearing in mind that the imposition of a disciplinary measure involves the exercise of a wide discretionary power (see Judgment 4460, consideration 8).

    Reference(s)

    ILOAT Judgment(s): 4044, 4460

    Keywords:

    disciplinary measure; discretion; motivation;



  • Judgment 4564


    134th Session, 2022
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: Le requérant conteste son rapport de notation pour la période 2008-2009.

    Considerations 3 and 8

    Extract:

    Ainsi que le Tribunal l’a maintes fois affirmé dans sa jurisprudence, l’évaluation des mérites d’un fonctionnaire au cours d’une période déterminée fait appel à un jugement de valeur, ce qui exige de sa part qu’il respecte le pouvoir d’appréciation des organes chargés de procéder à une telle évaluation. Il doit certes contrôler si les notes attribuées au fonctionnaire ont été à tous égards régulièrement établies, mais il ne peut se substituer à ces organes pour apprécier les qualités, les prestations et le comportement de l’intéressé. Aussi le Tribunal ne censurera-t-il un rapport de notation que si celui-ci émane d’une autorité incompétente, a été établi en violation d’une règle de forme ou de procédure, repose sur une erreur de droit ou de fait, omet de tenir compte d’un fait essentiel, tire du dossier des conclusions manifestement erronées, ou est entaché de détournement de pouvoir. S’agissant de la notation des fonctionnaires de l’OEB, ces limites s’imposent d’autant plus au Tribunal que l’Office prévoit une procédure de conciliation en la matière et que le Statut des fonctionnaires confère aux agents le droit de recourir à une commission paritaire composée de personnes ayant une connaissance directe du fonctionnement de l’Office (voir, par exemple, les jugements 1688, au considérant 5, 3062, au considérant 3, 3228, au considérant 3, 3268, au considérant 9, 3692, au considérant 8, ou 4258, au considérant 2).

    [I]l ne peut être reproché aux auteurs du rapport de notation contesté ni d’avoir tiré du dossier des conclusions manifestement erronées, ni d’avoir omis de tenir compte d’un fait essentiel – étant rappelé que, conformément à la jurisprudence précitée, il n’appartient pas au Tribunal de contrôler plus avant l’appréciation des mérites du requérant à laquelle se sont livrées les autorités de l’Office.

    Reference(s)

    ILOAT Judgment(s): 1688, 3062, 3228, 3268, 3692, 4258

    Keywords:

    conciliation; discretion; rating; role of the tribunal;



  • Judgment 4552


    134th Session, 2022
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: Le requérant conteste la décision de ne pas retenir sa candidature pour le poste de directeur du Service linguistique.

    Consideration 2

    Extract:

    Le Tribunal rappelle tout d’abord sa jurisprudence selon laquelle une organisation jouit d’un large pouvoir d’appréciation en matière de nomination et de promotion des membres du personnel. Pour cette raison, les décisions qu’elle prend dans ce domaine ne peuvent faire l’objet que d’un contrôle limité de la part du Tribunal. Ainsi, celui-ci ne censurera une telle décision que si elle émane d’une autorité incompétente, repose sur une erreur de droit ou de fait, omet de tenir compte d’un fait essentiel, tire du dossier des conclusions manifestement erronées, viole une règle de forme ou de procédure ou est entachée de détournement de pouvoir (voir, notamment, les jugements 2060, au considérant 4, 2457, au considérant 6, 2834, au considérant 7, et 4019, au considérant 2).

    Reference(s)

    ILOAT Judgment(s): 2060, 2457, 2834, 4019

    Keywords:

    appointment; discretion; role of the tribunal; selection procedure;



  • Judgment 4543


    134th Session, 2022
    International Fund for Agricultural Development
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: La requérante conteste l’évaluation de ses performances pour l’année 2016.

    Consideration 4

    Extract:

    Le Tribunal rappelle [...] que, selon sa jurisprudence constante en la matière, l’évaluation des mérites d’un fonctionnaire au cours d’une période déterminée fait appel à un jugement de valeur, ce qui exige du Tribunal qu’il reconnaisse le pouvoir d’appréciation des organes chargés de procéder à une telle évaluation. Un rapport d’évaluation des performances sera donc uniquement annulé pour un vice de forme ou de procédure, une erreur de droit ou de fait, l’omission de tenir compte de faits essentiels, un détournement de pouvoir ou des déductions manifestement inexactes tirées du dossier (voir, notamment, les jugements 3692, au considérant 8, 3842, au considérant 7, et 4010, au considérant 5).

    Reference(s)

    ILOAT Judgment(s): 3692, 3842, 4010

    Keywords:

    discretion; performance; role of the tribunal;



  • Judgment 4531


    134th Session, 2022
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to separate her from service on 31 August 2018, being the date on which she reached her retirement age according to the Staff Rules then in force, as well as the decision not to approve an exceptional extension of her appointment beyond retirement age.

    Considerations 12-13

    Extract:

    [T]hese pleas fail to recognise the wide discretionary power acknowledged and accepted by the Tribunal vested in an executive head to make decisions to retain officials beyond the normal retirement age and the concomitant limits on review by the Tribunal (see, for example, Judgments 2669, consideration 8, and 4016, consideration 10). [...]
    Notwithstanding the preceding discussion about the width of the discretionary power of an executive head to extend an appointment and the limited scope of review by the Tribunal, such a decision can be challenged on the basis that the power has not been exercised bona fide or, described more generally, involved an abuse of authority.

    Reference(s)

    ILOAT Judgment(s): 2669, 4016

    Keywords:

    abuse of power; discretion; retirement age;



  • Judgment 4524


    134th Session, 2022
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to appoint, as a development reassignment, Ms V.M. to the post of Client Relationship Manager.

    Consideration 8

    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 the case 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. 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 3669, consideration 4).

    Reference(s)

    ILOAT Judgment(s): 3669, 4023

    Keywords:

    appointment; discretion; role of the tribunal; selection procedure;



  • Judgment 4515


    134th Session, 2022
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the conversion of his suspension with pay into a suspension without pay pending an investigation for harassment undertaken against him.

    Consideration 4

    Extract:

    The power to suspend a staff member under Staff Rule 10.1.3 is within the discretion of the Secretary-General. The grounds for reviewing the exercise of the discretionary power to suspend are limited to questions of whether the decision was taken without authority, in breach of a rule of form or procedure, was based on an error of fact or law, involved an essential fact being overlooked or constituted an abuse of authority (see, for example, Judgments 2365, consideration 4(a), 2698, consideration 9, 3037, consideration 9, and 4452, consideration 7). According to the Tribunal’s case law, the suspension of an official is a provisional measure which in no way prejudges the decision on the substance of any disciplinary measure against him (see Judgments 1927, consideration 5, and 2365, consideration 4(a)). However, as a restrictive measure on the staff member concerned, the suspension must have a legal basis, be justified by the needs of the organisation and be taken with due regard to the principle of proportionality. In order for a suspension measure to be taken, the official must be accused of serious misconduct.

    Reference(s)

    ILOAT Judgment(s): 1927, 2365, 2365, 2698, 3037, 4452

    Keywords:

    discretion; proportionality; role of the tribunal; suspension;



  • Judgment 4507


    134th Session, 2022
    Organisation for the Prohibition of Chemical Weapons
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision not to renew his fixed-term appointment.

    Consideration 5

    Extract:

    It is well settled in the Tribunal’s case law that an organisation enjoys wide discretion in deciding whether or not to renew a fixed-term appointment. The exercise of such discretion is subject to only limited review as the Tribunal will respect the organisation’s freedom to determine its own requirements and the career prospects of staff. However, the exercise of such discretion is not unfettered and the Tribunal will set the decision aside if it was taken without authority, or in breach of a rule of form or of procedure, or if it rested on an error of fact or of law, or if some essential fact was overlooked, or if there was abuse of authority, or if clearly mistaken conclusions were drawn from the evidence (see Judgments 3948, consideration 2, 4062, consideration 6, 4146, consideration 3, 4231, consideration 3, and 4363, consideration 10).
    These grounds of review are applicable notwithstanding that the Tribunal has consistently stated that an employee who is in the service of an international organisation on a fixed-term contract does not have a right to the renewal of the contract when it expires and the complainant’s terms of appointment contain a similar provision (see Judgments 3444, consideration 3, 3586, consideration 6, and 4218, consideration 2).

    Reference(s)

    ILOAT Judgment(s): 3444, 3586, 3948, 4062, 4146, 4218, 4231, 4363

    Keywords:

    discretion; fixed-term; non-renewal of contract; role of the tribunal;



  • Judgment 4505


    134th Session, 2022
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the Director General’s decision to terminate his appointment at the end of his probationary period.

    Consideration 3

    Extract:

    In its case law, the Tribunal has held that “the purpose of probation is to permit an organization to assess the probationer’s suitability for a position” (see Judgment 4212, consideration 4). The Tribunal has also pointed out that an organisation enjoys wide discretion with regard to probation and that, for this reason, decisions taken in this context are subject to only limited review (see, for example, Judgment 4481, consideration 3). Thus, under the Tribunal’s settled case law, a decision of this kind will only be set aside if it is taken without authority or in breach of a rule of form or of procedure, or if it is 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 an abuse of authority. Moreover, where the reason given for refusal of confirmation is unsatisfactory performance, the Tribunal will not replace the organisation’s assessment with its own (see, in particular, Judgments 1418, consideration 6, 2646, consideration 5, 3913, consideration 2, and aforementioned 4212, consideration 4). In its case law, the Tribunal has also determined the principles applicable to an organisation’s obligations in respect of the probationary period. In particular, “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 that the continued employment is in jeopardy” (see Judgments 2788, consideration 1, and aforementioned 4212, consideration 5).

    Reference(s)

    ILOAT Judgment(s): 1418, 2646, 2788, 3913, 4212, 4481

    Keywords:

    discretion; probationary period; role of the tribunal;



  • Judgment 4504


    134th Session, 2022
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to demote her from grade P4 to grade P3 for a period of two years.

    Consideration 6

    Extract:

    Consistent precedent has it that decisions which are made in disciplinary cases are within the discretionary authority of the executive head of an international organization and are subject to limited review. The Tribunal must determine whether a decision taken by virtue of a discretionary authority was taken with authority, is in regular form, whether the correct procedure has been followed and, as regards its legality under the organisation’s own rules, whether the Administration’s decision was based on an error of law or fact, or whether essential facts have not been taken into consideration, or again, whether conclusions which are clearly false have been drawn from the documents in the file, or finally, whether there has been a misuse of authority. Additionally, the Tribunal will not interfere with the findings of an investigative body in disciplinary proceedings unless there is manifest error (see, for example, Judgment 4444, consideration 5).

    Reference(s)

    ILOAT Judgment(s): 4444

    Keywords:

    disciplinary measure; discretion; role of the tribunal;



  • Judgment 4503


    134th Session, 2022
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to extend her fixed-term appointment upon its expiry.

    Consideration 7

    Extract:

    It is well settled in the Tribunal’s case law that an organization enjoys wide discretion in deciding whether or not to renew a fixed-term appointment. The exercise of such discretion is subject to only limited review as the Tribunal respects the organization’s freedom to determine its own requirements and the career prospects of staff. However, the discretion is not unfettered and the Tribunal will set aside the decision if it was taken without authority or in breach of a rule of form or of procedure, or if it rested on an error of fact or of law, or if some essential fact was overlooked, or if there was abuse of authority, or if clearly mistaken conclusions were drawn from the evidence (see Judgments 3948, consideration 2, 4062, consideration 6, 4146, consideration 3, 4231, consideration 3, 4363, consideration 10).
    These grounds of review are applicable notwithstanding that the Tribunal has consistently stated, in Judgment 3444, consideration 3, for example, that an employee who is in the service of an international organization on a fixed-term contract does not have a right to the renewal of the contract when it expires and the complainant’s terms of appointment contain a similar provision (see Judgments 3586, consideration 6, and 4218, consideration 2).
    Even though an organization is generally under no obligation to extend a fixed-term contract or to reassign someone whose fixed-term contract is expiring, unless it is specifically provided by a provision in the staff rules or regulations, the reason for the non-renewal must be valid (and not an excuse to get rid of a staff member) and be notified within a reasonable time (see Judgments 1128, consideration 2, 1154, consideration 4, 1983, consideration 6, 2406, consideration 14, 3353, consideration 15, 3582, consideration 9, 3586, consideration 10, 3626, consideration 12, and 3769, consideration 7).
    An international organization is under an obligation to consider whether or not it is in its interests to renew a contract and to make a decision accordingly: though such a decision is discretionary, it cannot be arbitrary or irrational; there must be a good reason for it and the reason must be given (see Judgment 1128, consideration 2).

    Reference(s)

    ILOAT Judgment(s): 1128, 1154, 1983, 2406, 3353, 3444, 3582, 3586, 3626, 3769, 3948, 4062, 4146, 4218, 4231, 4363

    Keywords:

    discretion; fixed-term; non-renewal of contract; role of the tribunal;

    Consideration 11

    Extract:

    [T]he restructuring of the [Senior Management Team] and the consequent non-renewal of the complainant’s appointment was a discretionary decision, as part of a policy to reform and restructure the management of the Organization, lawfully taken by the Director-General, within her authority. It is well settled in the Tribunal’s case law that decisions concerning restructuring within an international organization may be taken at the discretion of the executive head of the organization 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 constitute 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 organization’s view with its own (see, for example, Judgments 4004, consideration 2, 4139, consideration 2, 4180, consideration 3, 4405, consideration 2).

    Reference(s)

    ILOAT Judgment(s): 4004, 4139, 4180, 4405

    Keywords:

    discretion; fixed-term; non-renewal of contract; reorganisation; role of the tribunal; senior official;



  • Judgment 4495


    134th Session, 2022
    Green Climate Fund
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to renew her fixed-term appointment upon its expiry.

    Consideration 15

    Extract:

    The obligation to give reasons for a non-renewal have been variously described as providing “valid reasons” (see Judgment 3769, consideration 7), and not “arbitrary or irrational” reasons (see Judgment 1128, consideration 2). While the reasons given in this case may be contestable, they were not of a character to sustain a conclusion they were, for example, not valid or arbitrary or irrational. As the Tribunal observed in Judgment 3586, consideration 6: “the Tribunal’s scope of review in a case such as this is limited. Firm and consistent precedent has it that an organization enjoys wide discretion in deciding whether or not to extend a fixed-term appointment. 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 (see, for example, Judgment 1349, under 11). The Tribunal will not substitute its own assessment for that of the organization. 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 (see, for example, Judgments 3299, under 6, 2861, under 83, and 2850, under 6).”

    Reference(s)

    ILOAT Judgment(s): 1128, 1349, 2850, 2861, 3299, 3586, 3769

    Keywords:

    discretion; fixed-term; motivation; non-renewal of contract; role of the tribunal;



  • Judgment 4481


    133rd Session, 2022
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decision not to extend her appointment at the end of her period of probation.

    Considerations 3-4

    Extract:

    According to the Tribunal’s case law, the decision not to confirm the appointment of a probationer is a discretionary one and is subject to limited review. The Tribunal will set the decision 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 overlooked some essential fact, or amounted to an abuse of authority, or clearly mistaken conclusions were drawn from the facts. The case law also states that the decision not to confirm a probationer’s appointment may be set aside if it was made in breach of her or his contract, of the organization’s own regulations and rules, or of applicable general principles of law as enunciated by the Tribunal. It also states that the general principles are intended to ensure that an international organization acts in good faith and honours its duty of care towards probationers and to respect their dignity (see, for example, Judgment 3440, consideration 2).
    Regarding the ambit of the discretion to confirm the appointment of a probationer, the Tribunal’s case law states that the competent authority will determine on the evidence before it whether or not to confirm the appointment and must be allowed the utmost measure of discretion in deciding whether someone it has recruited shows, not just the professional qualifications, but also the personal attributes for the particular post in which she or he will 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 (see, for example, Judgment 2599, consideration 5). The Tribunal also recalled, for example, in Judgment 4282, consideration 2, that the reason for probation is to enable an organisation to assess the probationer’s suitability for a position. For this reason, it has recognised that a high degree of deference ought to be accorded to an organisation’s exercise of its discretion regarding decisions concerning probationary matters, including the confirmation of appointment, the extensions of a probationary term, and the identification of its own interests and requirements.

    Reference(s)

    ILOAT Judgment(s): 2599, 3440, 4282

    Keywords:

    discretion; probationary period;



  • Judgment 4480


    133rd Session, 2022
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to grant her a personal promotion in the 2015 exercise.

    Consideration 13

    Extract:

    It is true that, in the same judgment, in consideration 4, the Tribunal reiterated that, under its case law, “an organisation enjoys wide discretion with regard to staff promotion” and that “[f]or this reason, such decisions are subject to only limited review”. However, as is made clear in Judgment 3322, consideration 4, such a decision may nevertheless “be quashed [...] if it was taken without authority, or in breach of a rule of form or of procedure, or if it rested on an error of fact or of law, or if some essential fact was overlooked, or if clearly mistaken conclusions were drawn from the evidence, or if there was abuse of authority (see, for example, Judgments 1815, under 3, 2668, under 11, or 3084, under 13)”.

    Reference(s)

    ILOAT Judgment(s): 1815, 2668, 3084, 3322, 4252

    Keywords:

    discretion; personal promotion;



  • Judgment 4467


    133rd Session, 2022
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    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.

    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; role of the tribunal; selection procedure;



  • Judgment 4462


    133rd Session, 2022
    World Trade Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the Director-General’s decision of 2 May 2019 not to modify his performance evaluation report for 2017 and not to renew his fixed-term contract.

    Consideration 18

    Extract:

    [T]he Tribunal reiterates that, under its case law, an employee who is in the service of an international organisation on a fixed-term contract does not have a right to the renewal of the contract when it expires (see, for example, Judgment 3444, consideration 3). It is likewise well settled in the Tribunal’s case law that “an organisation has a wide discretion in deciding whether to renew a fixed-term appointment and its right to refuse to renew can be based on unsatisfactory performance”. It follows that “such a discretionary decision can be successfully impugned [only] if it is fatally flawed by, for example, procedural defects, a failure to take account of some essential fact, abuse or misuse of authority, or if it was based on an error of fact or of law” (see Judgments 1262, consideration 4, 3586, consideration 6, 3679, consideration 10, 3743, consideration 2, and 3932, consideration 21).
    The Tribunal has also consistently held that “an organisation cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules established to evaluate that performance” (see Judgment 3252, consideration 8, and the case law cited therein, Judgment 3932, consideration 21, and the case law cited therein, and Judgment 4289, consideration 7).

    Reference(s)

    ILOAT Judgment(s): 1262, 3252, 3444, 3586, 3679, 3743, 3932, 3932, 4289

    Keywords:

    discretion; fixed-term; non-renewal of contract; role of the tribunal; unsatisfactory service;

    Consideration 9

    Extract:

    [T]he Tribunal recalls its case law in this area: “The principles governing the Tribunal’s consideration of challenges to staff performance appraisal reports are well settled. Indeed, they are discussed in Judgment 3378, consideration 6. The Tribunal recognises that such reports are discretionary and will set aside or amend a report only if there is a formal or procedural flaw, a mistake of fact or law, or neglect of some material fact, or misuse of authority, or an obviously wrong inference drawn from the evidence” (see Judgment 3842, consideration 7). The Tribunal has also held that as a rule “he who approves [a staff member’s appraisal report] will grant the reporting officer great freedom of expression. The official’s observations on the report may in some cases serve to correct any error of judgment that may have been made. It will be right not to approve a report only if the reporting officer made an obvious mistake over some important point, if he neglected some essential fact, if he was grossly inconsistent or can be shown to have been prejudiced. And he need not be deemed prejudiced just because his assessment for one period is not the same as another reporting officer’s opinion of the same official for an earlier or later period” (see Judgment 724, consideration 3; see also Judgment 2318, consideration 4).

    Reference(s)

    ILOAT Judgment(s): 724, 2318, 3842

    Keywords:

    discretion; performance evaluation; rating; role of the tribunal;



  • Judgment 4460


    133rd Session, 2022
    International Organization for Migration
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to impose upon her the disciplinary measure of discharge after due notice.

    Consideration 8

    Extract:

    Inasmuch as the complainant challenges a disciplinary decision, it is recalled that consistent precedent has it that such decisions are within the discretionary authority of the executive head of an international organisation and are subject to limited review. The Tribunal must determine whether a decision taken by virtue of a discretionary authority was taken with authority, is in regular form, whether the correct procedure has been followed and, as regards its legality under the organisation’s own rules, whether the Administration’s decision was based on an error of law or fact, or whether essential facts have not been taken into consideration, or again, whether conclusions which are clearly false have been drawn from the documents in the dossier, or finally, whether there has been a misuse of authority (see, for example, Judgment 3297, consideration 8).

    Reference(s)

    ILOAT Judgment(s): 3297

    Keywords:

    disciplinary measure; discretion; role of the tribunal;



  • Judgment 4455


    133rd Session, 2022
    World Tourism Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to suspend her pending disciplinary proceedings.

    Considerations 6-8

    Extract:

    The power to suspend is enlivened when the Secretary-General considers, in the specified circumstances, that continuation in service of the official may prejudice the service. The power is founded on the opinion of the Secretary-General on the question of prejudice.
    When the complainant was suspended with pay by memorandum dated 4 May 2018, the approach of the Secretary-General was, on its face, orthodox and in conformity with Staff Rule 29. First the Secretary-General said that a sanction was being considered and identified it as summary dismissal. Secondly the Secretary-General addressed the question of prejudice and gave a rational, albeit brief, explanation why the interests of the service may be prejudiced if the complainant continued in service.
    The grounds for reviewing the exercise of the discretionary power to suspend are limited to questions of whether the decision was taken without authority, in breach of a rule of form or procedure, was based on an error of fact or law, involved an essential fact being overlooked or constituted an abuse of authority (see, for example, Judgment 2365, consideration 4(a)).

    Reference(s)

    ILOAT Judgment(s): 2365

    Keywords:

    discretion; role of the tribunal; suspension;



  • Judgment 4452


    133rd Session, 2022
    World Tourism Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decisions to suspend him with pay and then without pay during the disciplinary procedure for misconduct as well as the appointment of a colleague to what he describes as his “job and functions”.

    Considerations 6-7

    Extract:

    The power to suspend is enlivened when the Secretary-General considers, in the specified circumstances, that continuation in service of the official may prejudice the service. The power is founded on the opinion of the Secretary-General on the question of prejudice. It is tolerably clear that a decision to suspend without salary when there might be summary dismissal, is linked to the power to make the summary dismissal retroactive to the date of suspension. The rationale appears to be that if retroactive summary dismissal is the ultimate outcome, circumstances should not be created where the suspended official has been paid but for a period when he was not in employment, at least notionally, and recovery of that payment may be problematic.
    When the complainant was suspended with pay […], the approach of the Secretary-General was, on its face, quite orthodox and in conformity with Staff Rule 29. First, the Secretary-General said that a sanction was being considered and identified it as summary dismissal. Notwithstanding, a decision was not then made though it could have been, to suspend the complainant without pay. Secondly the Secretary-General addressed the question of prejudice and gave a rational explanation why the interests of the service may be prejudiced if the complainant continued in service.

    Keywords:

    discretion; suspension; suspension without pay;

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Last updated: 28.11.2022 ^ top