Discretion (547, 548, 549, 550, 551,-666)
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Keywords: Discretion
Total judgments found: 599
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Judgment 2839
107th Session, 2009
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"It is clear that in accordance with Staff Regulation 1.1 staff members are subject to the authority of the Director-General and to assignment by him or her to any of the activities or offices of the Organization. Further, under Staff Rule 565.2 a staff member may be reassigned at any time in the interest of the Organization. However, in the exercise of the discretion to reassign a staff member, the Organization must take into account the interests and dignity of the staff member, including the provision of work of the same level as that which was performed in the former post and matching the staff member's qualifications, and care must be taken not to cause undue injury to the staff member (see Judgments 2067, under 17, 2191, under 3, and 2229, under 3). Moreover, the staff member is entitled to be informed of the reasons for the reassignment. In addition to ensuring transparency in decision making, providing the reasons for the reassignment permits a staff member to assess the courses of action that may be taken, including the lodging of an appeal, and it also permits a review of the lawfulness of the decision on appeal (see Judgment 1757, under 5)."
Reference(s)
ILOAT Judgment(s): 1757, 2067, 2191, 2229
Keywords:
assignment; discretion; duty to inform; duty to substantiate decision; judicial review; organisation's duties; reassignment; respect for dignity; staff member's interest; transfer;
Judgment 2835
107th Session, 2009
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"It is well established that an organisation has a wide discretion in relation to the appointment and promotion of staff. For this reason, these decisions are subject to limited review. That is, 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 Judgments 2060, under 4, and 2457, under 6)."
Reference(s)
ILOAT Judgment(s): 2060, 2457
Keywords:
breach; discretion; judicial review; limits; promotion;
Judgment 2834
107th Session, 2009
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"It is well established that an organisation has a wide discretion in relation to the appointment and promotion of staff. For this reason, these decisions are subject to limited judicial review. That is, the Tribunal will only interfere if the decision was taken without authority; if it was based on an error of law or fact, a 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 Judgments 2060, under 4, and 2457, under 6)."
Reference(s)
ILOAT Judgment(s): 2060, 2457
Keywords:
appointment; breach; discretion; judicial review; limits; promotion;
Judgment 2807
106th Session, 2009
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"The Tribunal will not undertake an exercise to classify or reclassify posts in an organisation's structure [...], since decisions in this sphere lie within the discretion of the organisation and may be set aside only on limited grounds. Such is the case, for example, if the competent bodies breached procedural rules, or if they acted on some wrong principle, overlooked some material fact or reached a clearly wrong conclusion [...]. In the absence of such grounds, the Tribunal will not remit the case to the organisation, nor will it substitute its own post evaluation for that of the competent bodies [...]."
Reference(s)
ILOAT Judgment(s): 2151, 2514, 2581
Keywords:
case law; discretion; disregard of essential fact; flaw; grade; judicial review; limits; mistake of fact; mistaken conclusion; post classification; post held by the complainant;
Judgment 2803
106th Session, 2009
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"Although the Director-General will ordinarily be treated as the best judge of what the Organization's interests are and the Tribunal will not ordinarily interfere in his assessment of them, nevertheless it will do so in this case. It is quite inadequate to plead that the decision to transfer the complainant was "in the interests of the Organization". The basis for reaching that conclusion must be made clear so that the Tribunal may exercise its power of review and determine whether there exists any of the grounds for setting aside a discretionary decision of that kind."
"In the present case, [...] the Tribunal considers that the Organization's clear explanation of the reasons for the complainant's transfer enabled it to conduct a review [...]."
Reference(s)
ILOAT Judgment(s): 1234
Keywords:
discretion; duty to substantiate decision; judicial review; limits; organisation's duties; organisation's interest; post;
Judgment 2800
106th Session, 2009
Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 22
Extract:
"While international organisations have a broad discretion in relation to the abolition of posts, the decision to abolish a post will be reviewable where it can be established that the decision was taken in bad faith."
Keywords:
abolition of post; bad faith; decision; discretion; limits;
Judgment 2773
106th Session, 2009
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 28
Extract:
[T]he Tribunal points out that according to firm precedent, as recalled in particular in Judgments 207 and 1984, the disciplinary authority has discretion in determining the severity of a sanction justified by a staff member’s misconduct, provided that the principle of proportionality is respected.
Reference(s)
ILOAT Judgment(s): 207, 1984
Keywords:
disciplinary measure; discretion; proportionality;
Consideration 28
Extract:
[W]ith regard to the issue of whether the measure of dismissal duly reflects the seriousness of the offences committed, the Tribunal points out that according to firm precedent, as recalled in particular in Judgments 207 and 1984, the disciplinary authority has discretion in determining the severity of a sanction justified by a staff member’s misconduct, provided that the principle of proportionality is respected. In view of the serious nature of the above-mentioned acts, and although the complainant had always been complimented on his professional abilities throughout his career, the Director-General of the FAO clearly did not exceed his discretionary authority in deciding to dismiss the complainant. The principle of proportionality has not therefore been breached.
Reference(s)
ILOAT Judgment(s): 207, 1984
Keywords:
disciplinary measure; discretion; proportionality; termination of employment;
Judgment 2742
105th Session, 2008
World Meteorological Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 34
Extract:
"It was said in Judgment 2510 that 'an international organisation necessarily has power to restructure some or all of its departments or units, including by the abolition of posts, the creation of new posts and the redeployment of staff'. The word 'necessarily' in that statement indicates that that power will be implied even if it is not expressly conferred by the relevant regulations. However, that power cannot be implied if it is contrary to the regulations."
Reference(s)
ILOAT Judgment(s): 2510
Keywords:
abolition of post; breach; creation of post; discretion; interpretation; organisation; reorganisation; written rule;
Judgment 2741
105th Session, 2008
International Olive Oil Council
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
When the Tribunal is seised of a complaint against a disciplinary penalty, it must quash the penalty if it is based on an error of fact or of law, overlooked some essential fact, was tainted with abuse of authority, or if a clearly mistaken conclusion was drawn from the evidence (see Judgments 2262, under 2, and 2365, under 4(a) in fine).
Reference(s)
ILOAT Judgment(s): 2262, 2365
Keywords:
disciplinary measure; discretion; mistake of law; summary dismissal;
Judgment 2728
105th Session, 2008
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 12
Extract:
The complainant submits that the Director-General's decision not to extend his appointment is unlawful. "There is no material to support a finding of bias or other abuse of discretion. Certainly, none is to be discerned from the fact that the complainant's former post has not yet been opened to competition."
Keywords:
abuse of power; bias; competition; contract; decision; discretion; evidence; executive head; lack of evidence; misuse of authority; non-renewal of contract;
Judgment 2714
104th Session, 2008
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
[I]t is well settled that the Tribunal may not replace the findings of medical boards with its own, but it does have full competence to say whether there was due process and whether the reports used as a basis for administrative decisions show any material mistake or inconsistency, or overlook some essential fact or plainly misread the evidence (see for example Judgments 1284, under 4, and 2361, under 9).
Reference(s)
ILOAT Judgment(s): 1284, 2361
Keywords:
discretion; judicial review; medical board; service-incurred;
Judgment 2669
104th Session, 2008
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
The Director-General's authority to extend a staff member's service beyond the retirement age is found in Staff Regulation 301.9.5. "This provision makes it clear that a decision to grant an extension of a staff member's contract is within the discretionary authority of the Director-General. It is well established in the case law that the Tribunal will only intervene in these circumstances if it can be shown that the executive head of the organisation acted without authority, breached a rule of form or procedure, or that the decision was based on a mistake of fact or law, or overlooked an essential fact, or that clearly mistaken conclusions were drawn from the facts."
Reference(s)
Organization rules reference: FAO Staff Regulation 301.9.5
Keywords:
age limit; case law; competence of tribunal; contract; decision; discretion; disregard of essential fact; executive head; extension beyond retirement age; flaw; mistake of fact; mistaken conclusion; procedural flaw; refusal; retirement;
Judgment 2668
104th Session, 2008
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"Personal promotion constitutes advancement on merit and is supposed to reward a staff member for services of a quality higher than those ordinarily expected of the holder of the post. In the absence of any provision to the contrary, it is an optional and exceptional discretionary measure which is subject to only limited review by the Tribunal (see Judgments 1500, under 4, and 1973, under 5)."
Reference(s)
ILOAT Judgment(s): 1500, 1973
Keywords:
condition; discretion; judicial review; personal promotion;
Judgment 2656
103rd Session, 2007
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
The complainant submits that the disciplinary measure imposed on him lacks proportionality. "In this respect, it may be noted that lack of proportionality is to be treated as an error of law warranting the setting aside of a disciplinary measure even though a decision in that regard is discretionary in nature (see Judgments 203 and 1445). In determining whether disciplinary action is disproportionate to the offence, both objective and subjective features are to be taken into account and, in the case of dismissal, the closest scrutiny is necessary (see Judgment 937)."
Reference(s)
ILOAT Judgment(s): 203, 937, 1445
Keywords:
breach; decision quashed; disciplinary measure; discretion; exception; judicial review; misconduct; proportionality; termination of employment;
Judgment 2646
103rd Session, 2007
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"[T]he Tribunal recalls 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."
Keywords:
decision; definition; discretion; extension of contract; judicial review; limits; organisation; organisation's interest; post; probationary period; purpose; qualifications;
Considerations 13-14
Extract:
The complainant was dismissed at the end of his probationary period. He states that despite his repeated requests he was never transferred to another directorate. "As to the case law, the complainant relies on Judgment 396 in support of [this] assertion [...]. The issue in that case was whether the head of the Organisation had correctly applied a particular provision of the Staff Regulations authorising him to terminate the appointment of a probationer at any time in the Organisation's interests. The Tribunal stated that '[a]s a rule, before a [probationer] is dismissed thought should be given to transferring him to some other post on trial, especially if he is junior in rank'. It must, however, be noted that this was said in the context of a misunderstanding between the probationer and his supervisor and the Tribunal's observation that such a misunderstanding does not necessarily justify instant dismissal. In the present case, the stated reason for the dismissal was poor performance.
To conclude that in situations of poor performance a staff member on probation will always be entitled to a transfer prior to being dismissed undermines the whole purpose of probationary terms. In some circumstances a transfer may be the proper option, but the circumstances of the present case do not warrant this finding."
Reference(s)
ILOAT Judgment(s): 396
Keywords:
case law; discretion; enforcement; executive head; general principle; grounds; organisation; organisation's duties; organisation's interest; post; probationary period; provision; purpose; refusal; request by a party; right; staff regulations and rules; supervisor; termination of employment; transfer; unsatisfactory service; working relations;
Judgment 2635
103rd Session, 2007
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"It is [...] well established in the case law that the preservation of harmony and good relations in a working environment are legitimate interests. A decision to transfer a staff member will not be invalid if taken for that purpose. Accordingly, in the present case, even if the decision to transfer the complainant was motivated by a desire to resolve relational difficulties, provided the new position accorded reasonably with her qualifications and respected her dignity, there would be no basis on which to interfere with the decision."
Keywords:
decision; discretion; grounds; organisation's duties; organisation's interest; purpose; qualifications; respect for dignity; staff member's interest; transfer; working conditions; working relations;
Consideration 6
Extract:
"While the head of an organisation must take into account the organisation's interests and the staff member's abilities and interests in the exercise of the discretion to transfer a staff member, in cases where the two are at odds, greater weight may be accorded by the decision-maker to the interests of the organisation (see Judgment 883)."
Reference(s)
ILOAT Judgment(s): 883
Keywords:
difference; discretion; executive head; organisation; organisation's interest; qualifications; staff member's interest; transfer;
Judgment 2632
103rd Session, 2007
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
"[T]he complainants assert that their acquired rights were breached because the Agency abandoned a practice, applied to them from 1 January to 30 June 2005, involving the application to pensions of the same weightings as were applied to the remuneration of serving officials. But a practice of salary and pension adjustment, even where repeated, does not bind the Organisation that adopted it, which is at liberty to abandon it provided that it does so lawfully (see in this connection Judgment 2089). As for acquired rights, they could not be held to have been breached unless the contested reform impaired a fundamental and essential term of the complainants' conditions of appointment, which include the right to a pension (see aforementioned Judgment 2089 and the case law cited therein). This is clearly not the case here."
Reference(s)
ILOAT Judgment(s): 2089
Keywords:
acquired right; adjustment; amendment to the rules; breach; condition; cost-of-living weighting; discretion; enforcement; formal requirements; injury; organisation's duties; pension; pension adjustment system; pension entitlements; practice; salary; terms of appointment;
Judgment 2619
103rd Session, 2007
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"The decision to grant special leave must be made on a case-by-case basis. It is not possible to assume that, because special leave has been granted to one staff member, it must be granted to all, unless all cases are identical in fact and in law. [...] Discrimination cannot be established until it is proved that staff members in identical situations were treated differently."
Keywords:
breach; difference; discretion; equal treatment; evidence; exception; official; organisation's duties; same; special leave;
Judgment 2615
102nd Session, 2007
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
Of course the Tribunal realises that this decision imposes a particular sacrifice on the beneficiaries of a retirement
pension. But in view of the short-term nature of this sacrifice, its relatively limited scope, a reference rate of inflation of 1.7 per cent and the fact that it forms part of a package of measures, the Tribunal cannot hold that in adopting such a measure the CERN Council abused the discretion it must be allowed in deciding whether to adjust pensions in the light of the financial capacity of the Pension Fund over which it exercises supreme authority.
Keywords:
discretion; pension; pension adjustment system;
Judgment 2581
102nd Session, 2007
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
"[C]onsistent precedent has it that 'decisions in respect of post classification are at the Administration's discretion and can only be set aside on limited grounds. It does not behove the Tribunal to substitute its own post assessment for that of the Organization' (see for example Judgment 1874)."
Reference(s)
ILOAT Judgment(s): 1874
Keywords:
case law; decision; discretion; grounds; iloat; judicial review; limits; organisation; post classification;
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