Discretion (547, 548, 549, 550, 551,-666)
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Keywords: Discretion
Total judgments found: 609
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Judgment 4714
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2014.
Consideration 11
Extract:
As a precursor to considering the merits of the assessment of the complainant’s 2014 staff report, the Tribunal finds it convenient to repeat the following statement which it made in Judgment 4564, consideration 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“[A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
In Judgment 4637, having recalled that statement, the Tribunal observed, in consideration 13, that:
“Since the Tribunal’s power of review does not extend to determining as such whether appraisals are well founded, the fact that the Appraisals Committee’s power of review is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.”
Reference(s)
ILOAT Judgment(s): 4564, 4637
Keywords:
discretion; rating; role of the tribunal;
Judgment 4713
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her staff report for 2014.
Consideration 11
Extract:
As a precursor to considering the merits of the assessment of the complainant’s 2014 staff report, the Tribunal finds it convenient to repeat the following statement which it made in Judgment 4564, consideration 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“[A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
In Judgment 4637, having recalled that statement, the Tribunal observed, in consideration 13, that:
“Since the Tribunal’s power of review does not extend to determining as such whether appraisals are well founded, the fact that the Appraisals Committee’s power of review is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.”
Reference(s)
ILOAT Judgment(s): 4564, 4637
Keywords:
discretion; rating; role of the tribunal;
Judgment 4705
136th Session, 2023
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant filed an application for review of Judgment 4274.
Consideration 9
Extract:
[T]he Tribunal is not required to explain systematically why it may deem necessary in a case to depart from a comparable precedent [...].
Keywords:
discretion; tribunal;
Judgment 4618
135th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the outcome of two selection procedures in which she took part.
Consideration 6
Extract:
Under the Tribunal’s settled case law in this area, a decision not to appoint an official of an international organisation to a post is in fact a decision that may be challenged in an internal appeal and ultimately before the Tribunal (see, for example, Judgments 4408, consideration 2, 4293, consideration 9, 4252, consideration 4, and 1204, consideration 6).
While the Secretary General also referred in his decision to the broad discretion enjoyed by an international organisation’s executive head in a selection procedure, that issue, which relates to the review of the merits of decisions taken in this area, has no bearing on the receivability of appeals directed against those decisions.
Reference(s)
ILOAT Judgment(s): 1204, 4252, 4293, 4408
Keywords:
administrative decision; discretion; internal appeal; selection procedure;
Judgment 4612
135th Session, 2023
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to suspend her from duties with immediate effect.
Consideration 3
Extract:
[I]t is convenient to set out the legal principles applied by the Tribunal when considering a challenge to a suspension decision. 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 or if a clearly mistaken conclusion was drawn from the evidence (see, for example, Judgments 4452, consideration 7, 3037, consideration 9, 2698, consideration 9, and 2365, consideration 4(a)). 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 her or him (see Judgments 2365, consideration 4(a) and 1927, consideration 5). 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. A staff member does not have a general right to be heard before a decision to suspend is made (see, for example, Judgment 4361, consideration 12).
Reference(s)
ILOAT Judgment(s): 1927, 2365, 2698, 3037, 4361, 4452
Keywords:
discretion; judicial review; role of the tribunal; suspension;
Judgment 4609
135th Session, 2023
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the new decision taken by UNESCO pursuant to Judgment 3936 in the context of her appeal against the decision to transfer her to Paris.
Consideration 4
Extract:
It is well established in the case law of the Tribunal that a decision to transfer an employee of an international organisation, which, as with any appointment decision, lies within the discretion of the executive head of the organisation concerned, is, for that reason, subject to only limited review. Therefore, such a decision may be set aside only if it was taken ultra vires, if it shows formal or procedural flaws or a mistake of fact or law, if some material fact was overlooked, if there was abuse of authority or if a clearly wrong conclusion was drawn from the evidence (see, for example, Judgments 4451, consideration 6, 3488, consideration 3, 2635, consideration 5, 1556, consideration 5, and 883, consideration 5).
Reference(s)
ILOAT Judgment(s): 883, 1556, 2635, 3488, 4451
Keywords:
discretion; role of the tribunal; transfer;
Judgment 4608
135th Session, 2023
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests WIPO’s decision to maintain Office Instruction No. 10/2016, promulgating, inter alia, the discontinuation of the Small and Medium-Sized Enterprises Section.
Consideration 7
Extract:
It is well settled in the Tribunal’s case law that decisions concerning restructuring within an international organisation, including the abolition of posts, may be taken at the discretion of the executive head of the organisation and are consequently subject to only limited review. Accordingly, the Tribunal shall 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 shall not rule on the appropriateness of a restructuring or of decisions relating to it, and it shall not substitute the organisation’s view with its own (see, for example, Judgments 4405, consideration 2, 4004, consideration 2, and 4180, consideration 3, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 4180, 4404, 4405
Keywords:
abolition of post; discretion; reorganisation;
Judgment 4603
135th Session, 2023
Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to extend his fixed-term appointment on account of his unsatisfactory performance.
Consideration 2
Extract:
Consistent case law has it that a decision not to extend or renew a fixed-term appointment is discretionary and may be set aside only on limited grounds. Where the reason given for the non-renewal is unsatisfactory performance, the decision can be successfully impugned if it is fundamentally flawed, for example, by 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 Judgment 3743, under 2). 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 3932, under 21). The Tribunal has also stated that if the reason given for the non-renewal of a fixed-term contract is the unsatisfactory nature of the performance of the staff member concerned, who is entitled to be informed in a timely manner as to the unsatisfactory aspects of his or her service, the organisation must base its decision on an assessment of that person’s work carried out in compliance with previously established rules and that allied to this is an obligation to afford an opportunity to improve (see Judgment 4289, under 7, and the case law cited therein) and that an international organization must comply with its own procedures in relation to performance appraisals (see, for example, Judgment 3150, under 9).
Reference(s)
ILOAT Judgment(s): 3150, 3743, 3932, 4289
Keywords:
discretion; fixed-term; non-renewal of contract; performance evaluation;
Judgment 4599
135th Session, 2023
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to abolish her post, reassign her, terminate her contract including the decision to defer the date of her termination, and to reject her claims of retaliation.
Consideration 19
Extract:
Regarding the reassignment of staff, the Tribunal has recognized the wide discretion of an executive head of an international organization to reassign staff in the interest of the organization. The discretion is enshrined in Article 1.2 of the Staff Regulations which states that all staff members are subject to the authority of the executive head of the organization and to assignment by her or him to any of the activities or offices of the organization. The Tribunal has therefore stated that it may interfere with a decision to reassign a staff member only on the limited grounds that the decision was taken ultra vires or shows a formal or procedural flaw or mistake of fact or law, if some material fact was overlooked, if there was misuse of authority or an obviously wrong inference was drawn from the evidence. The Tribunal has however emphasised that the organization must show due regard, in both form and substance, for the dignity of the official concerned, particularly by providing her or him with work of the same level of responsibilities as she or he performed in the previous post and matching her or his qualifications (Judgment 4240, under 5).
Reference(s)
ILOAT Judgment(s): 4240
Keywords:
discretion; judicial review; reassignment; transfer;
Judgment 4595
135th Session, 2023
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to transfer him to another duty station.
Consideration 2
Extract:
Consistent precedent has it that an executive head of an international organization has wide discretionary powers to manage the affairs of the organization pursuant to the policy directives and its rules, and that such decisions are consequently subject to only limited review. The Tribunal will ascertain whether a transfer decision is taken in accordance with the relevant rules on competence, form or procedure; whether it rests upon a mistake of fact or law, or whether it amounts to abuse of authority. The Tribunal will not rule on the appropriateness of the decision as it will not substitute the organization’s view with its own (see, for example, Judgment 4427, under 2). An international organization must carefully take into account the interests and dignity of staff members when effecting a transfer to which the staff member concerned is opposed (see, for example, Judgment 4427, under 11). It is incumbent upon an international organization to prove that a procedure which it has put in place has been duly followed, particularly if the implementation thereof is disputed (see, for example, Judgment 3601, under 20). […]
The Tribunal has also stated that every international organization is bound by a duty of care to treat its staff members with dignity and avoid causing them undue and unnecessary injury (see, for example, Judgment 4253, under 3). While the head of an international organization must take into account the organization’s interests as well as 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 organization (see Judgment 2635, under 6).
Reference(s)
ILOAT Judgment(s): 2635, 3601, 4253, 4427
Keywords:
discretion; transfer;
Judgment 4586
135th Session, 2023
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to convert his suspension with pay into a suspension without pay pending an investigation for misconduct against him, as well as the overall length of his suspension.
Consideration 8
Extract:
The Tribunal’s case law has it that the grounds for reviewing the exercise of the discretionary power to suspend a staff member 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 and that the suspension of an official is a provisional measure which in no way prejudges the decision on the substance of any disciplinary measure against her or him. However, as a restrictive measure on the staff member concerned, the suspension must have a legal basis, be justified by the needs of the organization and be taken with due regard to the principle of proportionality (see Judgment 4515, consideration 4, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 4515
Keywords:
discretion; suspension;
Judgment 4580
135th Session, 2023
International Bureau of Weights and Measures
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the increase in their contributions to the Pension and Provident Fund such as it appears on their payslips for January 2021.
Consideration 19
Extract:
[T]he Tribunal reiterates, in respect of the supposed “flimsiness” of the actuarial studies at issue, that it is not its role to substitute its assessment for that of an expert such as an actuary unless that assessment is affected by a blatant error (see [...] Judgments 4278 and 4277, considerations 16 and 20 respectively, and the case law cited therein). The complainants’ line of argument regarding these studies, which consists in drawing attention to the hypothetical nature of particular data used therein – which the very nature of such studies makes inevitable – does not establish the existence of such a blatant error.
Reference(s)
ILOAT Judgment(s): 4277, 4278
Keywords:
actuary; discretion; expert inquiry; judicial review;
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; motivation of final decision;
Judgment 4564
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for the 2008-2009 exercise.
Considerations 3 and 8
Extract:
As the Tribunal has repeatedly held, assessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority. Regarding the rating of EPO employees, those criteria are the more stringent because the Office has a procedure for conciliation on staff reports and the Service Regulations entitle officials to appeal to a joint body whose members are directly familiar with the workings of the Office (see, for example, Judgments 1688, consideration 5, 3062, consideration 3, 3228, consideration 3, 3268, consideration 9, 3692, consideration 8, and 4258, consideration 2).
[T]he authors of the contested staff report cannot be said to have drawn clearly mistaken conclusions from the facts or failed to take account of a material fact – bearing in mind that, under the [...] case law, it is not for the Tribunal to further review the assessment of the complainant’s merits made by the authorities of the 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: The complainant challenges the decision not to select him for the post of director of the Language Service.
Consideration 2
Extract:
[T]he Tribunal recalls its case law under which an organisation has wide discretion in appointing or promoting staff. Such a decision is therefore subject to only limited review by the Tribunal, which will interfere only if the decision was taken without authority, if it was based on a mistake of fact or of law, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, if a rule of form or procedure was breached or if there was abuse of authority (see, in particular, Judgments 2060, consideration 4, 2457, consideration 6, 2834, consideration 7, and 4019, consideration 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: The complainant challenges her performance evaluation for 2016.
Consideration 4
Extract:
[T]he Tribunal recalls that under its settled case law, assessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. The Tribunal will set aside a performance evaluation 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, in particular, Judgments 3692, consideration 8, 3842, consideration 7, and 4010, consideration 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;
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