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

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Keywords: Discretion
Total judgments found: 576

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  • Judgment 1732


    84th Session, 1998
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 8

    Extract:

    The administration has both the right and the duty to organise itself and to supervise the expenditure of its funds and the movements of its staff in ways which it conceives to be in the best interests of the Organization as a whole. No staff member, even a senior one such as the complainant, has the right to refuse to comply with administrative requirements which are generally applicable throughout the Organization."

    Keywords:

    discretion; organisation's duties; organisation's interest; staff member's duties;



  • Judgment 1730


    84th Session, 1998
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 14

    Extract:

    "Like any other organisation in the United Nations system, the FAO has a duty to ensure that its staff attain the highest standards of efficiency and technical competence. The arrangements made with the Chinese government up to 1992 prevented the Organization from exercising its own discretion about the level of competence of Chinese recruits. The fact that the arrangements have ceased is to be welcomed and any surviving anomalies should be corrected, not perpetuated."

    Keywords:

    appointment; discretion; flaw; independence; organisation; procedure before the tribunal;



  • Judgment 1729


    84th Session, 1998
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 10

    Extract:

    "While the Tribunal will not review the substance of discretionary administrative decisions [...] it does have the power to review the process leading to such decisions and to look into questions such as abuse of authority, incomplete consideration of the facts or failure to respect elementary principles of justice: see Judgment 1131 [...]."

    Reference(s)

    ILOAT Judgment(s): 1131

    Keywords:

    abuse of power; decision; discretion; disregard of essential fact; general principle; judicial review; mistake of law; misuse of authority;



  • Judgment 1724


    84th Session, 1998
    International Fund for Agricultural Development
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 11-12

    Extract:

    "Article 3.10.4 of [IFAD's] Manual says that a decision to terminate the contract of employment of an official may be taken by the President, 'and the President alone', in the interests of the Fund. So it does vest discretion in the President to end an appointment in the Fund's interest without resort to disciplinary process. [...] Yet the Fund is mistaken [...] that the President has unfettered authority under the provision to cite the Fund's interests as grounds for dismissal. He must set out the facts fully enough to enable the Tribunal to exercise its power of review and to determine objectively whether it is indeed the Fund's interests that are the reason for the dismissal. As was held in Judgments 1234 [...] under 19 and 1496 [...] under 9, although an organization's 'own interests are paramount [...] it must still, for the sake of proper management and mutual confidence, treat its staff fairly."

    Reference(s)

    Organization rules reference: ARTICLE 3.10.4 OF IFAD'S MANUAL
    ILOAT Judgment(s): 1234, 1496

    Keywords:

    discretion; duty to substantiate decision; judicial review; limits; organisation's interest; respect for dignity; staff member's interest; staff regulations and rules; termination of employment;



  • Judgment 1713


    84th Session, 1998
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 8

    Extract:

    "In choosing figures of local pay for the purpose of applying Flemming there can be no single hard-and-fast approach. As was held in Judgment 1265, the [ICSC] must be allowed some discretion over method, even though the Tribunal will still review the exercise of it. The decision impugned may not stand if, say, it overlooks or misconstrues some particular factor, or if some method is applied for the wilful contrivance of lower figures of local pay, or if corners are cut for the sake of saving time, but to the detriment of staff interests."

    Reference(s)

    ILOAT Judgment(s): 1265

    Keywords:

    abuse of power; discretion; disregard of essential fact; flaw; flemming principle; icsc decision; judicial review; mistake of fact; mistaken conclusion; misuse of authority; salary;

    Consideration 15

    Extract:

    "The Tribunal will not entertain any general challenge to the policies of the [ICSC] or of the FAO: it will rule only on particular pleas from the parties."

    Keywords:

    discretion; icsc decision; judicial review; limits;



  • Judgment 1682


    84th Session, 1998
    European Molecular Biology Laboratory
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 9

    Extract:

    "The Tribunal may not itself set the complainants' pay: it must respect the Council's discretion [...]. It therefore sends the case back so that the Laboratory may, in keeping with its own self-imposed rules, set pay scales [...]."

    Keywords:

    adjustment; discretion; judicial review; limits; salary;



  • Judgment 1680


    84th Session, 1998
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    "Judgment 809 [...] explained just what [UNESCO Staff] Rule 105.2(b) [on special leave with pay] meant. Its wording 'makes it plain that such a decision will be exceptional' [...] the Director-General does have discretion, and the Organization seeks to rely on it, but obviously it does not stretch to breach of the rules or of the general principles that safeguard the dignity of an international civil servant."

    Reference(s)

    Organization rules reference: UNESCO STAFF RULE 105.2(B)
    ILOAT Judgment(s): 809

    Keywords:

    discretion; general principle; refusal to assign work; respect for dignity; special leave; staff regulations and rules;



  • Judgment 1659


    83rd Session, 1997
    European Free Trade Association
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 12

    Extract:

    Having lost three out of seven members and having a "working budget that was but a fraction of what it had been before, it was therefore only reasonable for [EFTA] to consider overhauling the Secretariat and go ahead with the abolition of units and then of posts. [...] It was the EFTA Council of seven member States that resolved to wind up the Secretariat, pay off the permanent employees and let fixed-term appointments run out. It saw that as the only proper course because of political uncertainty and lack of money to pay the staff after 30 June 1995. The seven States also wanted to safeguard the freedom of the four remaining members to set up a smaller Secretariat which matched the smaller membership. There was no mistake of law in the Council's reasoning."

    Keywords:

    abolition of post; budgetary reasons; discretion; judicial review; member state; non-renewal of contract; organisation; reorganisation; separation from service; termination of employment;



  • Judgment 1641


    83rd Session, 1997
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7(c)

    Extract:

    "Though an organisation must observe acquired rights and keep binding promises, it has broad discretion to amend its Staff Regulations either directly or by incorporating the rules of the common system. In the present economic context and if, like many others, it is in financial straits, it may want to cut costs. There is nothing wrong with the common system's having rules that enable it to do so."

    Keywords:

    acquired right; amendment to the rules; budgetary reasons; coordinated organisations; discretion; limits; organisation; organisation's duties; organisation's interest; promise; purpose; reduction of salary; staff regulations and rules;



  • Judgment 1617


    82nd Session, 1997
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 3

    Extract:

    "On the strength of the unfavourable appraisal non-renewal of her appointment may have seemed too harsh for someone who until then had had good reports which offered hope of improvement. So the [Organization] concluded that the right expedient was to give a shorter extension so that she might show her mettle. In coming to those conclusions on the evidence before him the Director-General did not go beyond the bounds of his discretion".

    Keywords:

    contract; different appraisals; discretion; duration of appointment; executive head; extension of contract; non-renewal of contract; proportionality; staff member's interest; unsatisfactory service; work appraisal;



  • Judgment 1616


    82nd Session, 1997
    European Southern Observatory
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    "The provisions of the combined [Staff] Rules apply to international and local staff alike, and so any provision that applies to one category of staff and not to the other offends against those rules and is unlawful. Here the Director General had no authority to treat as a mere option the consultation of the Joint Board on Appeals from local staff: the combined [Staff] Rules apply to all staff and so does the duty those rules lay down. The rule under which the Director General exercised discretion was an unlawful one and he thereby committed a mistake of law."

    Keywords:

    advisory body; consultation; discretion; executive head; local status; non-local status; precedence of rules; staff regulations and rules;



  • Judgment 1614


    82nd Session, 1997
    International Fund for Agricultural Development
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 3

    Extract:

    "As circumstances change so must an organisation reform its structure, and that may mean doing away with posts. Even if abolition is not expressly provided for, no organisation can be required to abide for evermore by the same approach to what it has to do."

    Keywords:

    abolition of post; discretion; organisation; reorganisation;



  • Judgment 1610


    82nd Session, 1997
    World Customs Organization (Customs Co-operation Council)
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 18

    Extract:

    "In a case of non-renewal the Tribunal will be especially cautious in reviewing any appraisal by a supervisor of the staff member's performance: the supervisor has the technical background and the knowledge of the staff member's work and personality that qualify him better than anyone else to advise the head of the Secretariat on that score. Some appraisals of the complainant's performance are not good." Others are more positive, though not unreservedly. "Though she does produce letters of commendation from several quarters, it is not for the Tribunal to choose between conflicting assessments: it is the executive authority that has discretion to do so."

    Keywords:

    contract; different appraisals; discretion; executive head; fixed-term; judicial review; limits; non-renewal of contract; qualifications; supervisor; work appraisal;



  • Judgment 1595


    82nd Session, 1997
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 10

    Extract:

    "Though the qualifications stated in a notice of vacancy are not absolutely binding and the Director General may still exercise some discretion, he may not so utterly discard them as to flout the rules that ensure the proper openness and objectivity of the competition."

    Keywords:

    appointment; competition; criteria; discretion; executive head; flaw; limits; vacancy notice;

    Consideration 4

    Extract:

    The Tribunal "may not replace the Organisation's assessment of the applicants with its own and order any particular appointment. So the complaint is irreceivable insofar as the complainant is claiming reinstatement in her former duties and permanent appointment to the post."

    Keywords:

    appointment; claim; competence of tribunal; discretion; judicial review; receivability of the complaint;



  • Judgment 1590


    82nd Session, 1997
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 4

    Extract:

    The Tribunal will be especially cautious "where the issue is not transfer but the determination or alteration of the duties to be performed on a given post. Here the duties required of the complainant are not different from those provided for at the date of recruitment, the organisation enjoying the widest discretion in matching duties to needs."

    Keywords:

    amendment to the rules; assignment; discretion; judicial review; organisation's interest; post; post description; transfer;



  • Judgment 1576


    82nd Session, 1997
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 4

    Extract:

    "Since the award of end-of-service promotion falls within the Director-General's discretion, the Tribunal exercises only a limited power of review: it will intervene only if there has been breach of some rule of form or procedure or a mistake of law or fact or failure to take some essential fact into account."

    Keywords:

    discretion; disregard of essential fact; executive head; formal flaw; judicial review; limits; mistake of fact; procedural flaw; promotion; separation from service;



  • Judgment 1564


    82nd Session, 1997
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 8

    Extract:

    "The firm case law has it that the Tribunal will not interfere with the comparison of entrants in a competition. Only when it appears that the choice of candidate may rest on some mistake of fact or law or there may have been misuse of authority will the Tribunal order the production of evidence so that it may review such comparison and will the complainant be entitled to see such evidence. In the instant case the review of the selection procedure reveals neither a breach of the Organization's Staff Regulations or other rules, nor any mistake of fact or law, nor misuse of authority."

    Keywords:

    abuse of power; candidate; case law; competition; confidential evidence; disclosure of evidence; discretion; due process; judicial review; limits; mistake of fact; misuse of authority; staff regulations and rules;



  • Judgment 1556


    81st Session, 1996
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    "Like appointment and promotion, transfer is at the discretion of the executive head of the international organisation and subject to only limited review. The Tribunal may interfere only if the decision was taken ultra vires or shows formal or procedural flaw or mistake of fact or law, or if some material fact was overlooked, or if there was misuse of authority or an obviously wrong inference from the evidence. And the Tribunal will be especially wary in reviewing a transfer since it may not replace the employer's rating of the official with its own."

    Keywords:

    appointment; decision; discretion; executive head; judicial review; limits; promotion; transfer;



  • Judgment 1547


    81st Session, 1996
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 12-14

    Extract:

    "The EPO had no formal agreement with the union about facilities such as the distribution of a summons to a meeting. But it admitted to the Appeals Committee that its consistent practice since 1992 had been to distribute any unsealed unofficial internal mail, whether private or not, save any text containing a personal attack on someone. Was such usage binding in law? [...] The plain expectation of the staff was that the EPO would deliver notices from their union without let or hindrance." Therefore the complaints succeed.

    Keywords:

    binding character; discretion; facilities; flaw; freedom of association; freedom of speech; judicial review; limits; organisation's duties; practice; staff union; staff union activity;

    Consideration 8

    Extract:

    "Precedent has it that an organisation has some latitude in affording facilities to a staff union and its decisions are not subject to judicial review. That is not so, however, where it is charged with breach of freedom of association. The Tribunal will indeed interfere if the effect of the impugned decision is to hamper the freedom of speech that any union must enjoy. Refusal to deliver invitations to a union meeting is unquestionably a breach of the privacy of mail and of the freedom of speech that is part and parcel of freedom of association."

    Keywords:

    case law; discretion; facilities; flaw; freedom of association; freedom of speech; judicial review; limits; staff union; staff union activity;



  • Judgment 1546


    81st Session, 1996
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 18

    Extract:

    "The conclusion is that he had quite sufficient warning [two written warnings in addition to oral warnings and written comments on the quality of his work] about shortcomings in his performance and the risk of non-renewal. So it is immaterial whether the earlier criticisms are the same as those on which the decision rests. Furthermore, although the Organization's warning was sufficient, it was at liberty to cite prior incidents as well."

    Keywords:

    conduct; contract; discretion; fixed-term; grounds; non-renewal of contract; unsatisfactory service; warning;

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