Discretion (547, 548, 549, 550, 551,-666)
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Keywords: Discretion
Total judgments found: 609
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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;
Judgment 2562
101st Session, 2006
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 12
Extract:
"The Tribunal's case law has determined that the head of an international organisation has the 'executive authority to assign staff to different posts' (Judgment 534), and 'is empowered to change the duties assigned to his subordinates' (Judgment 265)."
Reference(s)
ILOAT Judgment(s): 265, 534
Keywords:
amendment to the rules; assignment; case law; discretion; executive head; iloat; official; organisation; post; supervisor;
Judgment 2558
101st Session, 2006
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5(b)
Extract:
The complainant accuses the Appeals Committee of having breached her defence rights by refusing to call on the Office to produce the documents she requested. "Ideally, the Appeals Committee would have given reasons for rejecting the complainant's offer of additional evidence in the form of the testimonies of seven witnesses and 15 documents that the Office was being asked to produce, or would at least have made it clear in its opinion that the evidence already produced was sufficient to lead it to an objective assessment of the relevant facts. The complainant, however, offers no convincing explanation that all these items of evidence are really relevant. The Tribunal cannot therefore consider the rejection of the proffered evidence as constituting abuse of the broad discretion that internal appeals bodies must enjoy in this area."
Keywords:
abuse of power; breach; complainant; disclosure of evidence; discretion; evidence; grounds; internal appeals body; misuse of authority; offer; oral proceedings; organisation; refusal; report; request by a party; right to reply; testimony;
Judgment 2525
100th Session, 2006
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
The defendant sent the President of the Tribunal a letter requesting permission to confine its reply to the issue of the complaint's receivability. "For the sake of the good administration of justice [...] the President, who is authorised to direct proceedings (see Judgment 809), decided exceptionally to grant the Organization's request to confine its reply to the issue of receivability."
Reference(s)
ILOAT Judgment(s): 809
Keywords:
discretion; exception; president of the tribunal; reply confined to receivability;
Judgment 2514
100th Session, 2006
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
"The Tribunal has consistently held that it is for the competent body and, in the last resort, the executive head of the relevant organisation to grade staff members following an exercise involving the making of value judgements as to the nature and extent of the duties and responsibilities of the post. Accordingly, the Tribunal will only substitute its own assessment or direct a new assessment if it is shown, for example, that the competent body acted on some wrong principle or overlooked some material fact or reached a clearly wrong conclusion (see Judgments 594, 1067, 1152, 1281 and 1495)."
Reference(s)
ILOAT Judgment(s): 594, 1067, 1152, 1281, 1495
Keywords:
case law; discretion; disregard of essential fact; executive head; grade; judicial review; limits; mistake of fact; mistaken conclusion; post classification; post description;
Judgment 2513
100th Session, 2006
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
The Deputy Director General submitted a memorandum requesting one-year extensions of contract for the complainant and six other officials who had reached the statutory age of retirement. The Director General dealt with all seven requests. Three were granted. In the complainant's case, the request for extension was simply turned down without any reason being given. The Tribunal recalls its case-law according to which a provision such as Staff Regulation 4.05 gives the Director General a wide measure of discretion and the Tribunal will not interfere in the exercise of that discretion except in extremely limited circumstances. The Tribunal recently confirmed as much in Judgment 2377, which also concerns the IAEA retirement policy. That case is not authority, however, for the proposition that the power to extend appointments beyond normal retirement age can be exercised arbitrarily. In the present case, "[i]t is impossible to conclude other than that the decision in the complainant's case was made for some undisclosed or purely arbitrary reason. Therefore, it cannot stand."
Reference(s)
Organization rules reference: IAEA Staff Regulation 4.05
ILOAT Judgment(s): 2377
Keywords:
age limit; bias; case law; decision; discretion; duty to substantiate decision; equal treatment; exception; grounds; judicial review; limits; organisation's duties; retirement; staff regulations and rules;
Judgment 2510
100th Session, 2006
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
"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 (see Judgments 269 and 1614). As was pointed out in Judgment 1131, the Tribunal may not supplant an organisation's view with respect to these matters, and decisions on them are discretionary and subject to limited review."
Reference(s)
ILOAT Judgment(s): 269, 1131, 1614
Keywords:
abolition of post; creation of post; decision; discretion; judicial review; limits; post; reassignment; reorganisation;
Judgment 2490
100th Session, 2006
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"[T]he executive head of an organisation has discretionary authority not only to promote someone from one grade to another but also to say what place he shall hold in his new grade (see Judgment 313, under 3)."
Reference(s)
ILOAT Judgment(s): 313
Keywords:
discretion; executive head; grade; official; organisation; promotion;
Judgment 2393
98th Session, 2005
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 12
Extract:
"The general principles allow that a discretionary decision with respect to an appointment may be set aside if applicants have not received equal treatment."
Keywords:
appointment; breach; candidate; condition; discretion; equal treatment; general principle; right;
Consideration 13
Extract:
The general principles also allow that a mistake as to a candidate’s qualifications or experience may constitute a mistake of fact or result in some material fact being overlooked. It is this consideration that is invoked by the complainant’s contentions that he had greater experience and skills than the successful candidate, and that the interview panel and the FAO were mistaken as to his management skills. However, and as held in Judgment 1827, the selection of candidates necessarily “requires a high degree of judgment” with which the Tribunal will interfere only if a serious defect is demonstrated. And as was also held in that judgment, a defect of that kind is not established merely by asserting that one is better qualified than the selected candidate.
Keywords:
appointment; competition; discretion; judicial review; mistake of fact; mistake of law; selection procedure;
Judgment 2377
98th Session, 2005
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
The complainant contests the decision not to extend his fixed-term appointment beyond the statutory retirement age. Provisional Staff Regulation 4.05 "makes it clear that the decision whether or not to grant an extension to any particular staff member is peculiarly a matter for the exercise of the Director General's discretion. The Tribunal will only interfere with such exercise on very limited grounds, none of which has been established by the complainant. The fact that such extensions may have been granted to a number of other staff members is simply irrelevant in the circumstances. No one has a right to be retained beyond the applicable normal retirement age, which in the complainant's case was 60."
Reference(s)
Organization rules reference: AIEA Provisional Staff Regulation 4.05
Keywords:
age limit; burden of proof; competence of tribunal; contract; difference; discretion; equal treatment; executive head; extension beyond retirement age; grounds; lack of evidence; limits; refusal; retirement; right; staff regulations and rules;
Judgment 2373
97th Session, 2004
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"The decision to redefine the functions of a post is the prerogative of the Director-General, on the recommendation of the relevant manager, and it is equally within the power of the management to determine the qualifications required for a particular post."
Keywords:
decision; definition; discretion; executive head; post; post description; qualifications; recommendation;
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