Discretion (547, 548, 549, 550, 551,-666)
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Keywords: Discretion
Total judgments found: 599
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Judgment 1553
81st Session, 1996
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 15
Extract:
Many judgments - for example 1131 [...] - have declared that the Tribunal will not review an organisation's policy but only an individual decision taken to give effect thereto and the actual application of substantive rules. Its power of review is limited. It may not supplant an organisation's view with its own on such matters as policies of restructuring or redeployment of staff intended to make savings or improve efficiency. It will interfere only when a decision was taken without authority or in breach of a formal or procedural rule, or was based on a mistake of fact or of law, or neglected some essential fact, or constituted an abuse of authority, or drew mistaken conclusions from the factual evidence.
Reference(s)
ILOAT Judgment(s): 1131
Keywords:
discretion; redeployment; reorganisation;
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;
Judgment 1543
81st Session, 1996
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"The Administrative Council exercised its discretion under Article 19(2) [of the EPO's Protocol on Privileges and Immunities] in declining to waive the President's immunity from jurisdiction. Such exercise of discretion is a matter outside the Tribunal's competence, affecting as it does relations between the defendant organisation and a member State. The complaint is therefore 'clearly irreceivable' and must be summarily dismissed in accordance with Article 7 of the Tribunal's Rules."
Reference(s)
ILOAT reference: ARTICLE 7 OF THE RULES
Organization rules reference: ARTICLE 19(2) OF THE EPO PROTOCOL ON PRIVILEGES AND IMMUNITIES
Keywords:
competence of tribunal; complaint; discretion; executive head; iloat statute; judicial review; member state; organisation; privileges and immunities; receivability of the complaint; request by a party; summary procedure; waiver of immunity;
Judgment 1541
81st Session, 1996
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"Refusal to answer an appeal is not obstruction: the litigant may still appeal to the Tribunal against the implied rejection. [...] Moreover, the President of the Office pleads the need to keep down the amount of internal litigation so as not to overload the administration with pointless work and expenditure. He has thereby assessed the Organisation's interests and made an exercise of discretion with which the Tribunal may not interfere in the circumstances of this case."
Keywords:
complaint; direct appeal to tribunal; discretion; executive head; failure to answer claim; iloat statute; implied decision; internal appeal; internal remedies exhausted; judicial review; organisation's duties; organisation's interest; procedure before the tribunal; right of appeal;
Judgment 1519
81st Session, 1996
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 17
Extract:
"The complainants argue that the [salary] survey ought to have compared jobs at like levels of seniority inside and outside [the organization] and not ignored the inverted 'pyramid' of the age structure of [the organization's] staff. There is merit to the criticism. Yet to whichever side one may tend on that point, the comparison is fated to go awry. In any event there was nothing unlawful in the approach the survey took. Neither [the ICSC] nor [the] organization went beyond the bounds of the discretion that the case law allow".
Keywords:
case law; discretion; flemming principle; general service category; icsc decision; inquiry; investigation; salary; seniority; step; terms of appointment;
Consideration 7
Extract:
"The complainants' plea that the [ICSC's] method of comparison with outside pay [as modified in 1992] should not have disregarded training would carry weight if it had any merit [...] but it is hard to evaluate the benefits of it to staff. Any attempt to do so may end in approximation or error because those benefits are not a reward for services rendered and depend on each staff member's duties, experience and career prospects. Though comparison of such benefits might have proved possible, the [ICSC's] methodology did not have to take account of them."
Keywords:
discretion; flemming principle; general service category; icsc decision; inquiry; investigation; salary; terms of appointment;
Consideration 6
Extract:
"The revision of 1992 [of the general methodology which the International Civil Service Commission applies to salary service] did result in a reduction of outside employees' fringe benefits. [...] According to the survey [...] the goods and services taken into account were such that the effect of the change was slight. So the revision is not to be deemed unlawful on that score, the Commission exercised its discretion".
Keywords:
discretion; flemming principle; fringe benefits; general service category; icsc decision; inquiry; investigation; reckoning; salary; scale;
Judgment 1500
80th Session, 1996
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
Advancement under Staff Regulation 3.4 "consists in rising by steps: any staff member qualifies for it who meets the conditions of seniority and 'satisfactory service'. Personal promotion means rising in grade without any change in duties and is a benefit that the Director General may bestow at discretion. He does so only in 'exceptional circumstances' to reward someone for services of a quality higher than that ordinarily expected of the holder of the post."
Reference(s)
Organization rules reference: WIPO STAFF REGULATION 3.4
Keywords:
condition; discretion; executive head; increment; personal promotion; right; staff regulations and rules;
Judgment 1498
80th Session, 1996
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 14
Extract:
"As is plain from the case law, the setting of pay scales is at an organisation's discretion. The Tribunal has recognised as much in Judgments 1000 [...] and 1265 [...], where under 26 it said, quite specifically, that it would not interfere in the drafting of the salary policy that the exercise of such discretion was based on, even though it did have power of review in the area. The discretionary authority of the Agency holds good for interim adjustments as well as for the setting of pay scales on the strength of the five-yearly general surveys."
Reference(s)
ILOAT Judgment(s): 1000, 1265
Keywords:
adjustment; case law; discretion; judicial review; salary; scale;
Judgment 1497
80th Session, 1996
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"An organisation has discretion in holding interviews according to its own rules."
Keywords:
competition; discretion;
Judgment 1495
80th Session, 1996
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 14
Extract:
"A decision determining a career path in accordance with CERN rules is analogous to a decision about grading. A long line of precedent leaves such a decision to the Director-General's discretion."
Keywords:
case law; discretion; executive head; judicial review; post classification; staff regulations and rules;
Judgment 1475
80th Session, 1996
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
"The decision to terminate the complainant's appointment was a discretionary one, and consistent precedent has it that the Tribunal will not set aside a decision of that kind unless it shows a mistake of fact or law or a formal or procedural flaw, or some essential fact was overlooked or a clearly mistaken conclusion drawn from the evidence, or if there was abuse or lack of authority."
Keywords:
case law; discretion; judicial review; separation from service; termination of employment;
Judgment 1472
80th Session, 1996
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"[A] decision [setting the place of home leave] is a discretionary one. The Tribunal will quash such a decision only if it was taken without authority or if it shows some procedural or formal defect or a mistake of fact or 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."
Keywords:
discretion; home; home leave; judicial review;
Judgment 1463
79th Session, 1995
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 14
Extract:
"Several judgments say that a decision on a staff report, being a discretionary one, may be set aside only on limited grounds such as a mistake of fact or of law or failure to take account of some material fact: see [...] Judgments 724 [...], 806 [...] and 1144 [...]."
Reference(s)
ILOAT Judgment(s): 724, 806, 1144
Keywords:
case law; discretion; disregard of essential fact; judicial review; mistake of fact; performance report;
Judgment 1450
79th Session, 1995
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 24
Extract:
"The organisation is free to make whatever use it wishes of the possibility of granting fixed-term contracts. The Tribunal will not interfere in the exercise of such discretion. So there is another issue that it will not entertain, namely whether [...] the complainants' duties were permanent or temporary. Whether duties are permanent or not will depend not just on the sort of work to be done but also on the organisation's own shifting requirements."
Keywords:
contract; discretion; duration of appointment; fixed-term; judicial review; organisation's interest; post description;
Judgment 1446
79th Session, 1995
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 15
Extract:
The grant of an increase for merit is discretionary under Staff Rule 555.1. "By its very nature such a provision cannot confer an acquired right."
Reference(s)
Organization rules reference: WHO STAFF RULE 555.1
Keywords:
acquired right; condition; discretion; increment; staff regulations and rules;
Judgment 1445
79th Session, 1995
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
The choice of a particular sort of disciplinary action is "obviously at the Director-General's discretion and the Tribunal will not interfere unless his decision shows some fatal flaw such as [...] breach of the rule of proportionality."
Keywords:
disciplinary measure; discretion; executive head; judicial review; limits; proportionality;
Judgment 1444
79th Session, 1995
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"Termination of an appointment is a discretionary decision which the Tribunal will set aside only on limited grounds".
Keywords:
contract; discretion; executive head; judicial review; non-renewal of contract; separation from service;
Consideration 8
Extract:
Vide Judgment 1161, consideration 4.
Reference(s)
ILOAT Judgment(s): 1161
Keywords:
career; case law; discretion; executive head; extension of contract; probationary period; purpose; qualifications; separation from service; termination of employment;
Judgment 1441
79th Session, 1995
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 18
Extract:
"The complainant held a fixed-term appointment. His proven shortcomings and misconduct were undoubtedly such that the organization might have refused without further ado to extend his appointment. As the Tribunal has always acknowledged, an organisation has discretion in the matter and, as many rulings bear out, it may refuse renewal on grounds of unsatisfactory performance or misconduct: for a recent example see Judgment 1405."
Reference(s)
ILOAT Judgment(s): 1405
Keywords:
case law; contract; discretion; fixed-term; misconduct; non-renewal of contract; unsatisfactory service;
Judgment 1438
79th Session, 1995
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
The complainant was denied a further extension of the period in which he was entitled to claim the refund of removal expenses. The Tribunal considers that "in accordance with its case law, [it] will not substitute its own views for those of the director-general in a matter in which he has discretion."
Keywords:
case law; discretion; executive head; judicial review; new time limit; refund; removal expenses; time limit;
Judgment 1437
79th Session, 1995
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
The complainant was transferred against his wishes to another unit. There was nothing improper in the decision to transfer him. "The transfer was in the organization's interests" and took lawfully into account such facts as the reform of his old unit and the need for more staff in his new one.
Keywords:
discretion; executive head; judicial review; organisation's interest; reorganisation; transfer;
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