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

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Keywords: Discretion
Total judgments found: 551

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  • Judgment 4086


    127th Session, 2019
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to maintain her contested job description.

    Considerations 10-11

    Extract:

    The Tribunal’s case law has it that when a staff member of an international organization is transferred to a new post in non-disciplinary circumstances, that transfer is subject to the general principles governing all decisions affecting the staff member’s status. The organization must show due regard, in both form and substance, for the dignity of the staff member, particularly by providing her or him with work of the same level as that which she or he performed in her or his previous post and matching her or his qualifications (see, for example, Judgment 2229, under 3(a)). This requirement is consistent with Staff Regulation 4.3(c) [...].
    The responsibilities that attach to posts are comparable where on an objective basis the level of the duties to be performed is similar (see, for example, Judgment 1343, under 9). It is not for the Tribunal to reclassify a post or to redefine the duties attaching thereto, as that exercise falls within the discretion of the executive head of the organization, 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 (see, for example, Judgment 2373, under 7). However, every employee has the right to a proper administrative position, which means that she or he should both hold a post and perform the duties pertaining thereto and should be given real work (see, for example, Judgment 2360, under 11).

    Reference(s)

    ILOAT Judgment(s): 1343, 2229, 2360, 2373

    Keywords:

    assignment; discretion; general principle; grade; judicial review; organisation's duties; post classification; post description; post held by the complainant; reclassification; respect for dignity; transfer;



  • Judgment 4084


    127th Session, 2019
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to transfer her and the appointment of another staff member without a competitive recruitment process.

    Consideration 8

    Extract:

    On the merits, it is convenient to recall 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. The discretion includes making decisions relating to the structure of the organization, its departments, divisions or sections, including their restructuring to meet policy objectives, as well as decisions relating to the creation and abolition of posts and the transfer of staff as a part of the process. Firm precedent has it that such decisions are consequently subjected to only limited review. Accordingly, the Tribunal will ascertain whether the decisions are taken in accordance with the relevant rules on competence, form or procedure; rest upon a mistake of fact or law or whether they amount to abuse of authority. The Tribunal will not rule on the appropriateness of the decisions as it will not substitute the organization’s view with its own (see, for example, Judgments 2742, under 34, and 3488, under 3).

    Reference(s)

    ILOAT Judgment(s): 2742, 3488

    Keywords:

    discretion; judicial review; transfer;



  • Judgment 4081


    127th Session, 2019
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision of the Director General not to allow him to carry out an assignment outside the Organisation.

    Consideration 8

    Extract:

    According to the Tribunal’s case law, the decision of the executive head of an international organisation to allow or not to allow a staff member to carry out an assignment outside the organisation is a discretionary decision. Such a decision is subject to only limited review and thus will be set aside only if it has been taken without authority, if there is a formal or procedural flaw, a mistake of law or of fact, or if some essential fact has been overlooked or a clearly mistaken conclusion drawn from the evidence, or if there is misuse of authority (see Judgments 2377, consideration 5, and 3858, consideration 12).

    Reference(s)

    ILOAT Judgment(s): 2377, 3858

    Keywords:

    discretion; judicial review; outside activity;



  • Judgment 4067


    127th Session, 2019
    Organisation for the Prohibition of Chemical Weapons
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decision not to extend his contract.

    Consideration 5

    Extract:

    [T]he Tribunal sets its face against assessing the exercise of a discretionary power such as the power not to renew a fixed-term contract, unless it is demonstrated that the competent body acted on some wrong principle, breached procedural rules, overlooked a material fact or reached a clearly wrong conclusion (see, for example, Judgment 3991, consideration 7, and the case law cited therein).

    Reference(s)

    ILOAT Judgment(s): 3991

    Keywords:

    discretion; fixed-term; non-renewal of contract;



  • Judgment 4066


    127th Session, 2019
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to promote her in the 2013 promotion exercise.

    Consideration 3

    Extract:

    The Tribunal’s case law does not guarantee to staff members of an international organization an automatic right to promotion (see Judgment 3495, under 11). It is also well established that an organization has a wide discretion in deciding whether to promote a staff member. For this reason, such decisions are subject to limited review. 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 2835, under 5, and 3279, under 11). Additionally, the Tribunal has stated that since the selection of candidates for promotion is necessarily based on merit and requires a high degree of judgement on the part of those involved in the process, a person who challenges it must demonstrate a serious defect in the decision (see Judgment 1827, under 6). The breach of a procedural rule is a flaw on the basis of which a decision not to promote a staff member may be set aside (see Judgment 1109, under 4).

    Reference(s)

    ILOAT Judgment(s): 1109, 1827, 2835, 3279, 3495

    Keywords:

    discretion; judicial review; promotion;



  • Judgment 4065


    127th Session, 2019
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: In his second complaint, the complainant challenges the decision to dismiss him, while he was on sick leave, for misconduct. In his third complaint, he challenges the dismissal decision on the merits.

    Consideration 5

    Extract:

    Inasmuch as the complainant challenges a disciplinary decision, it is recalled that consistent precedent has it that such decisions are within the discretionary authority of the executive head of an international organization and are subject to limited review. The Tribunal will interfere only if the decision is tainted by a procedural or substantive flaw. Additionally, the Tribunal will not interfere with the findings of an investigative body in disciplinary proceedings unless there is manifest error (see, for example, Judgment 3872, under 2).

    Reference(s)

    ILOAT Judgment(s): 3872

    Keywords:

    disciplinary procedure; discretion; inquiry; investigation; judicial review; procedural flaw;



  • Judgment 4062


    127th Session, 2019
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to renew her fixed-term contract on the grounds of unsatisfactory performance.

    Consideration 6

    Extract:

    The Tribunal has consistently held that international organizations have wide discretion in deciding whether or not to renew fixed-term contracts. Such decisions are therefore subject to only limited review by the Tribunal, which will interfere only if a decision was taken in breach of applicable rules on competence, form or procedure, 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, or if there was abuse of authority (see, for example, Judgments 1262, consideration 4, 3586, consideration 6, 3679, consideration 10, 3743, consideration 2, or 3932, consideration 21).

    Reference(s)

    ILOAT Judgment(s): 1262, 3586, 3679, 3743, 3932

    Keywords:

    discretion; fixed-term; judicial review; non-renewal of contract;



  • Judgment 4051


    126th Session, 2018
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss him for misconduct.

    Consideration 5

    Extract:

    Consistent precedent has it that disciplinary decisions are within the discretionary authority of the executive head of an international organization and are subject to only limited review. In Judgment 3297, consideration 8, the Tribunal stated that it will interfere only if the decision is tainted by a procedural or substantive flaw. Additionally, the Tribunal will not interfere with the fact findings of an investigative body unless there is manifest error (see, for example, Judgment 3872, consideration 3). In disciplinary matters, the burden of proof lies with the employer, which must demonstrate that the complainant did indeed engage in the conduct of which he was accused (see, for example, Judgments 3297, consideration 8, and 3875, consideration 8).

    Reference(s)

    ILOAT Judgment(s): 3297, 3872, 3875

    Keywords:

    burden of proof; disciplinary measure; discretion; judicial review;



  • Judgment 4039


    126th Session, 2018
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, who alleges that he is the victim of institutional harassment and discrimination, seeks redress for the injury he considers he has suffered.

    Consideration 4

    Extract:

    The decision to open an investigation, which in no way prejudges the decision on merits of a possible sanction, lies at the discretion of the competent authority.
    In the instant case, the whistleblower had reported that the complainant’s spouse had been recruited more than once by the Office, that there had possibly been “subterfuge” because she had used different first names in the Integrated Resource Information System (IRIS) and the application listing ILO officials and that her private address was given as “c/o ILO” in IRIS. Having consulted HRD, which considered that it would be necessary to confront the officials concerned in order to determine responsibilities, and having ascertained that the complainant’s spouse had in fact been given 93 contracts since 2005, including six for the International Labour Conference between 2007 and 2012, the IAO formed the opinion that it had identified sufficient prima facie evidence to open an investigation.
    The Tribunal considers that the evidence available to the IAO at that stage justified looking into whether, apart from mentioning his family relationship in his annual family status reports, the complainant had also disclosed it to the persons whom he had contacted in order to obtain a contract for his spouse, and whether there was not a conflict of interest, given that many contracts addressed to his wife had been sent to his professional address, that he himself had signed a number of them and that he had signed his spouse’s annual certificates of earnings on behalf of the Chief of the Central Payroll Unit of the Payment Authorisation Section. Indeed, the IAO report found that these allegations were substantiated in part.
    The Tribunal therefore finds that, in opening the investigation, the Organization did not exceed the limits of its discretionary power in the matter.

    Keywords:

    discretion; inquiry; investigation; opening of an investigation;



  • Judgment 4038


    126th Session, 2018
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, who alleges that he is the victim of institutional harassment and discrimination, seeks redress for the injury he considers he has suffered.

    Consideration 4

    Extract:

    The decision to open an investigation, which in no way prejudges the decision on the merits of a possible sanction, lies at the discretion of the competent authority.
    In the present case, having consulted HRD, which considered that it would be necessary to confront the officials concerned in order to determine responsibilities, and having ascertained that the complainant’s spouse had in fact been given seven contracts, including four for the International Labour Conference, the IAO formed the opinion that it had identified sufficient prima facie evidence to open an investigation.
    The Tribunal considers that the evidence available to the IAO at that stage justified looking into whether, apart from mentioning his family relationship in his annual family status reports, the complainant had also disclosed it to the persons whom he had contacted in order to obtain a contract for his spouse, and whether he might not be in a situation of conflict of interest because he was the official responsible for paying the sums due to his spouse.
    The Tribunal therefore finds that, in opening the investigation, the Organization did not exceed the limits of its discretionary power in the matter.

    Keywords:

    discretion; inquiry; investigation;



  • Judgment 4023


    126th Session, 2018
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the validity of a competition procedure in which he participated and the lawfulness of the ensuing appointment.

    Consideration 2

    Extract:

    The Tribunal has stated the basic principles which guide it, where a decision such as this is challenged, [...] in Judgment 3652, consideration 7. [...]
    A complainant is required to 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 Judgment 3669, consideration 4).
    However, when an organization conducts a competition to fill a post, the process must accord with the relevant rules and the case law (see Judgment 1549, considerations 11 and 13, and the case law cited therein).

    Reference(s)

    ILOAT Judgment(s): 1549, 3652, 3669

    Keywords:

    appointment; competition; discretion; judicial review; selection procedure;



  • Judgment 4019


    126th Session, 2018
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to grant her a promotion in the 2013 promotion exercise.

    Consideration 2

    Extract:

    The Tribunal has consistently held that staff promotions by an international organisation are decisions which lie within the discretion of its executive head. 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 a rule of form or procedure was breached, 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, or if there was abuse of authority (see, for example, Judgments 2834, under 7, 3006, under 7, or 3742, under 3).

    Reference(s)

    ILOAT Judgment(s): 2834, 3006, 3742

    Keywords:

    discretion; judicial review; promotion;



  • Judgment 4010


    126th Session, 2018
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges his performance appraisals for 2012 and the decisions to renew his fixed-term appointment for a period of six months rather than one year and, subsequently, not to renew it beyond its expiry.

    Considerations 5-8

    Extract:

    A convenient starting point in the Tribunal’s consideration of the complainant’s performance appraisals for 2012 is to identify the principles which are applicable. The principles are well settled. The Tribunal recognises that “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” (see Judgment 3945, consideration 7). The Tribunal will set aside a 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, for example, Judgments 3842, consideration 7, 3692, consideration 8, 3378, consideration 6, 3006, consideration 7, and 2834, consideration 7). [...]
    [T]he complainant’s analysis does not reveal any factual errors that might have had a material effect on the ultimate conclusions about his performance. While the analysis reflects the complainant’s view, understandably favourable to him, of how he had performed in relation to those seven activities, it does not reveal an error of the type that would warrant intervention by the Tribunal having regard to the principles discussed in consideration 5 above. The complainant’s supervisor was entitled to form the view he had of the complainant’s performance and it was not flawed by any material factual error. It was a view based on evaluation and assessment of available material. While the complainant disagrees with that evaluation and assessment, it was within the supervisor’s discretionary power to make that evaluation and assessment, and there is no basis established by the complainant for reviewing the exercise of that power and for setting aside the performance appraisal which was, in part, based on it.

    Reference(s)

    ILOAT Judgment(s): 2834, 3006, 3378, 3692, 3842, 3945

    Keywords:

    competence of tribunal; discretion; performance evaluation; performance report;



  • Judgment 4004


    126th Session, 2018
    International Criminal Court
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the rejection of his appeal against the abolition of his post and the termination of his fixed-term appointment, which was filed after he had accepted a mutually agreed separation.

    Consideration 2

    Extract:

    Firm precedent has it that decisions concerning restructuring within an international organization, including the abolition of posts, may be taken at the discretion of the executive head of the organization and are consequently subject to only limited review. Accordingly, the Tribunal will 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 law, or whether they constituted abuse of authority. The Tribunal will not rule on the appropriateness of the restructuring, as it will not substitute the organization’s view with its own (see, for example, Judgments 2742, under 34, and 2933, under 10).

    Reference(s)

    ILOAT Judgment(s): 2742, 2933

    Keywords:

    abolition of post; discretion; limits;



  • Judgment 3996


    126th Session, 2018
    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 investigate her claim of harassment, the decision to permanently transfer her and the decision to offer her an extension of appointment in her new position.

    Consideration 4J

    Extract:

    [T]he Executive Secretary’s discretionary power with respect to a transfer must necessarily yield to the objective appearance of a conflict of interest; even more, considering that the complainant herself had requested the written commitment, and that the conflict of interest cannot be superseded by a commitment or an agreement.

    Keywords:

    conflict of interest; discretion; transfer;



  • Judgment 3991


    126th Session, 2018
    ITER International Fusion Energy Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to renew her fixed-term contract.

    Considerations 7 and 9

    Extract:

    [T]he Tribunal sets its face against assessing the exercise of a discretionary power such as the power not to renew a fixed-term contract, unless it is demonstrated that the competent body acted on some wrong principle, breached procedural rules, overlooked a material fact or reached a clearly wrong conclusion (see, for example, Judgments 3914, consideration 4, and 3769, consideration 6). [...]
    [I]t was within the discretionary power of the Director-General, notwithstanding the recommendation of the Mediator, to focus only on the skills and capabilities of the complainant in assessing whether her position should continue and, if not, whether the contract should be renewed. No reviewable error attended the approach of the Director-General.

    Reference(s)

    ILOAT Judgment(s): 3769, 3914

    Keywords:

    discretion; non-renewal of contract;



  • Judgment 3970


    125th Session, 2018
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to prolong his service beyond the mandatory retirement age.

    Consideration 2

    Extract:

    The Tribunal has consistently held that a decision to retain an official beyond the normal retirement age is an exceptional measure over which the executive head of an organisation exercises wide discretion. 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 a rule of form or procedure was breached, 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, or if there was abuse of authority (see, for example, Judgments 1143, under 3, 2845, under 5, or 3765, under 2, and, specifically in respect of the application of Article 54 of the Service Regulations to members of boards of appeal, Judgments 3214, under 12, and 3285, under 10).

    Reference(s)

    ILOAT Judgment(s): 1143, 2845, 3214, 3285, 3765

    Keywords:

    age limit; discretion; extension beyond retirement age;



  • Judgment 3939


    125th Session, 2018
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to extend his appointment beyond the statutory retirement age.

    Consideration 3

    Extract:

    As the Tribunal has consistently held, a decision to retain an official beyond the normal retirement age stipulated in a provision of this kind is an exceptional measure over which the executive head of an organisation exercises wide discretion. 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 a rule of form or procedure was breached, 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, or if there was abuse of authority (see, for example, Judgments 1143, under 3, 2845, under 5, 3285, under 10, or 3765, under 2).

    Reference(s)

    ILOAT Judgment(s): 1143, 2845, 3285, 3765

    Keywords:

    age limit; discretion; extension beyond retirement age; judicial review;



  • Judgment 3934


    125th Session, 2018
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to transfer him and not to extend his appointment beyond the statutory retirement age.

    Consideration 9

    Extract:

    It should be borne in mind that [...] an extension beyond the statutory retirement age, which is an exceptional measure over which the Director-General exercises broad discretion, may be granted only if, in the words of Staff Regulation 9.5, the latter “considers it to be in the interest of the Organization”.

    Reference(s)

    Organization rules reference: Staff Regulation 9.5

    Keywords:

    age limit; discretion; extension beyond retirement age; retirement;



  • Judgment 3929


    125th Session, 2018
    Universal Postal Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decisions to abolish her post and to terminate her appointment while she was on sick leave.

    Consideration 8

    Extract:

    The Tribunal recalls that “[a]ccording to firm precedent, a decision concerning the restructuring of an international organisation’s services, which leads to the abolition of a post, may be taken at the discretion of its executive head and is subject to only limited review by the Tribunal. The latter must therefore confine itself to ascertaining whether the decision was taken in accordance with the rules on competence, form or procedure, whether it involves a mistake of fact or of law, whether it constituted abuse of authority, whether it failed to take account of material facts, or whether it draws clearly mistaken conclusions from the evidence. The Tribunal may not, however, supplant an organisation’s view with its own (see, for example, Judgments 1131, under 5, 2510, under 10, and 2933, under 10). Nevertheless, any decision to abolish a post must be based on objective grounds and its purpose may never be to remove a member of staff regarded as unwanted. Disguising such purposes as a restructuring measure would constitute abuse of authority (see Judgments 1231, under 26, 1729, under 11, and 3353, under 17)” (Judgment 3582, under 6).

    Reference(s)

    ILOAT Judgment(s): 1131, 1231, 1729, 2510, 2933, 3353, 3582

    Keywords:

    abolition of post; abuse of power; discretion; limits; misuse of authority; reorganisation;

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Last updated: 21.10.2021 ^ top