Discretion (547, 548, 549, 550, 551,-666)
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Keywords: Discretion
Total judgments found: 599
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Judgment 4283
130th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to cancel a competition in which he was a candidate.
Considerations 2-3
Extract:
According to the Tribunal’s settled case law, the executive head of an international organisation may cancel a competition in the interests of the service if, among other reasons, it becomes apparent that the competition will not enable the post concerned to be suitably filled, and the opening of such a procedure does not therefore imply that a candidate will necessarily be appointed to that post (see, for example, Judgments 791, under 4, 1771, under 4(e), 1982, under 5(a), 2075, under 3, 3647, under 9, or 3920, under 18, and 4216, under 3).
According to the same case law, the decision not to fill an advertised post – like any decision to appoint an official in the opposite case where an appointment is made – falls within the discretion of the executive head of the organisation and is therefore be subject to only limited review by the Tribunal (see, in particular, aforementioned Judgment 791, under 4, or aforementioned 1771, under 6). However, it is within the Tribunal’s purview to verify whether that decision was taken in accordance with the rules on competence, form and procedure, whether it involved an error of fact or of law, whether it failed to take account of material facts, whether it drew clearly incorrect conclusions from the evidence or whether it constituted misuse of authority (see, for example, Judgments 1689, under 3, 2060, under 4, 2457, under 6, 3537, under 10, or 3652, under 7, and [...] 4216, under 4).
Reference(s)
ILOAT Judgment(s): 791, 1689, 1771, 1982, 2060, 2075, 2457, 3537, 3647, 3652, 3920, 4216
Keywords:
competition cancelled; discretion;
Judgment 4282
130th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his appointment at the end of his probationary period.
Considerations 2-3
Extract:
It is useful to recall the general principles that govern setting aside a decision to dismiss a staff member of an international organization whose performance during a probationary period is considered inadequate. It was relevantly restated in consideration 4 of Judgment 4212 that the purpose of probation is to permit an organization to assess the probationer’s suitability for a position, and, for that reason, the Tribunal has consistently recognized that a high degree of deference ought to be accorded to an organisation’s exercise of its discretion regarding decisions concerning probationary matters. This includes the confirmation of appointment, the extensions of a probationary term, and the identification of its own interests and requirements. Accordingly, it has been consistently stated that a discretionary decision of this nature will only be set aside “if taken without authority or in breach of a rule of form or of procedure, or if based on a mistake of fact or of law, or if some essential fact was overlooked, or if clearly mistaken conclusions were drawn from the facts, or if there was abuse of authority”. In Judgment 4212, the Tribunal also reaffirmed that “where the reason for refusal of confirmation is unsatisfactory performance, [it] will not replace the organisation’s assessment with its own”.
It is also useful to reiterate an international organization’s obligations regarding a staff member’s probation period that are well settled in the case law. For example, in Judgment 4212, consideration 5, the Tribunal stated that such a period is to provide an organisation with an opportunity to assess an individual’s suitability for a position. In the course of making this assessment, an organisation must establish clear objectives against which performance will be assessed; provide the necessary guidance for the performance of the duties; identify in a timely fashion the unsatisfactory aspects of the performance so that remedial steps may be taken; and give a specific warning where continued employment is in jeopardy. It was also stated in Judgment 3678, consideration 1, that a probationer is “entitled to have objectives set in advance so that she or he will know the yardstick by which future performance will be assessed”.
Reference(s)
ILOAT Judgment(s): 3678, 4212
Keywords:
discretion; performance evaluation; probationary period;
Judgment 4273
130th Session, 2020
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge their classification in the new career structure established following the 2015 five-yearly review.
Consideration 6
Extract:
According to the Tribunal’s case law, an organisation has broad discretion when altering salary structures and grading systems (see Judgments 2778, under 7, 3921, under 11, and 4134, under 26 and 49) and classifying officials individually (see, for example, Judgment 1495, under 14). Decisions on such matters are therefore subject to only limited review by the Tribunal, which will censure them only if they have been taken in breach of a rule of form or procedure, if they are based on an error of fact or law, if some essential fact was overlooked, if clearly mistaken conclusions were drawn from the evidence or if there was misuse of authority.
Reference(s)
ILOAT Judgment(s): 1495, 2778, 3921, 4134
Keywords:
discretion; grade; judicial review; salary;
Consideration 16
Extract:
The actual design of the new career structure (for example, the structure of grades and their number) and the new merit recognition system (for example, the choice of financial incentives and their amount) falls within the Organization’s discretion and, given the Tribunal’s limited power of review in this matter, it is not for the Tribunal to substitute its assessment for that of the Organization (see Judgments 2778, under 7, 3921, under 11, and 4134, under 26 and 49).
Reference(s)
ILOAT Judgment(s): 2778, 3921, 4134
Keywords:
career; discretion;
Judgment 4259
129th Session, 2020
European Patent Organisation
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 8
Extract:
The impugned decision correctly states that the President’s decision whether to propose to the Administrative Council a prolongation of service of a member of the Boards of Appeal is an exceptional measure and the decision is subject to only limited review. The Tribunal stated as follows in Judgment 3970, under 2:
“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 [...].”
Reference(s)
ILOAT Judgment(s): 3970
Keywords:
discretion; extension beyond retirement age;
Judgment 4254
129th Session, 2020
International Labour 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 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, consideration 3, 2845, consideration 5, 3285, consideration 10, 3765, consideration 2, or 3884, consideration 2).
Reference(s)
ILOAT Judgment(s): 1143, 2845, 3285, 3765, 3884
Keywords:
age limit; discretion; retirement age;
Judgment 4252
129th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former official of the ILO, challenges the decision not to award him a personal promotion in the 2011 exercise.
Consideration 4
Extract:
Under the Tribunal’s case law, an organisation enjoys wide discretion with regard to staff promotion. For this reason, such decisions are subject to only limited review. However, the Tribunal must ascertain whether the decision was taken without authority, if it was based on an error of law or fact, a 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 procedure, or if there was an abuse of authority (see Judgments 2835, consideration 5, 3279, consideration 11, and 4066, consideration 3).
Reference(s)
ILOAT Judgment(s): 2835, 3279, 4066
Keywords:
discretion; personal promotion;
Judgment 4240
129th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reassign her to the post of Senior Advisor on Innovative Strategic Information, Strategic Information and Evaluation Department.
Consideration 5
Extract:
Regarding the applicable principles, the Tribunal has recognized the wide discretion of an executive head of an international organization, in the interest of the organization, to reassign staff members. 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 will therefore be circumspect in reviewing a reassignment or transfer. The Tribunal has recognized that reassignment may be influenced by the need to eliminate tensions that compromise the functioning of a unit. It has however reiterated 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. The Tribunal has further stated that the responsibilities that attach to posts are comparable where on an objective basis the level of the duties to be performed is similar, and that the exercise to reclassify a post or to redefine the duties attaching thereto 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. 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, Judgments 4086, considerations 10 and 11, and 3488, consideration 3).
Reference(s)
ILOAT Judgment(s): 3488, 4086
Keywords:
discretion; reassignment;
Judgment 4231
129th Session, 2020
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to extend his fixed-term appointment and to place him on special leave with pay until his contract expired.
Consideration 3
Extract:
The Tribunal’s case law states that an organisation enjoys wide discretion in deciding whether or not to renew a fixed-term appointment. The exercise of such discretion is subject to only limited review as the Tribunal respects the organisation’s freedom to determine its own requirements and the career prospects of staff. However, the discretion is not unfettered and the Tribunal will set the decision aside if it was taken without authority or in breach of a rule of form or of procedure, or if it rested on an error of fact or of 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 (see, for example, Judgments 4062, consideration 6, and 4146, consideration 3).
Reference(s)
ILOAT Judgment(s): 4062, 4146
Keywords:
discretion; fixed-term; non-renewal of contract;
Judgment 4221
129th Session, 2020
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of her request for reclassification of her post.
Consideration 11
Extract:
The basic guiding principles in the Tribunal’s case law concerning classification of posts were stated as follows, for example, in Judgment 4000, considerations 7, 8 and 9:
“7. In Judgment 3589, in which the reclassification of a post was also challenged, the Tribunal stated the following, in consideration 4:
‘It is well established that the grounds for reviewing the classification of a post are limited and ordinarily a classification decision would only be set aside if it was taken without authority, had been made in breach of the rules of form or procedure, was based on an error of fact or law, was made having overlooked an essential fact, was tainted with abuse of authority or if a truly mistaken conclusion had been drawn from the facts (see, for example, Judgments 1647, consideration 7, and 1067, consideration 2). This is because the classification of posts involves the exercise of value judgements as to the nature and extent of the duties and responsibilities of the posts and it is not the Tribunal’s role to undertake this process of evaluation (see, for example, Judgment 3294, consideration 8). The grading of posts is a matter within the discretion of the executive head of the organisation (or the person acting on her or his behalf) (see, for example, Judgment 3082, consideration 20).’
8. As to the main factors that are to be taken into account in a reclassification process, the Tribunal has relevantly stated as follows, in Judgment 3764, consideration 6:
‘It is for the competent body and, ultimately, the Director-General to determine each staff member’s grade. Several criteria are used in this exercise. Thus, when a staff member’s duties attach to various grades, only the main ones are taken into account. Moreover, the classification body does not rely solely on the text of the Staff Regulations and Staff Rules and the job description but also considers the abilities and degree of responsibility required by each. In all cases grading a post requires detailed knowledge of the conditions in which the incumbent works.’
9. The classification of a post involves an evaluation of the nature and extent of the duties and responsibilities of the post based upon the job description. It is not concerned with the merits of the performance of the incumbent (see, for example, Judgment 591, under 2).
[...].”
Reference(s)
ILOAT Judgment(s): 591, 1067, 1647, 3082, 3294, 3589, 3764, 4000
Keywords:
discretion; post classification;
Judgment 4220
129th Session, 2020
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the rejection of their requests for an agreed separation.
Consideration 11
Extract:
[T]here is no element which leads the Tribunal to question this organizational evaluation of what is in the best interest of the Organization which is within the knowledge and the competence of the executive head (see, for example, Judgments 3858, consideration 12, and 2377, consideration 5).
Reference(s)
ILOAT Judgment(s): 2377, 3858
Keywords:
discretion; organisation's interest;
Judgment 4218
129th Session, 2020
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.
Consideration 2
Extract:
It is convenient to commence by recalling the approach of the Tribunal to cases in which a complainant challenges a decision not to renew a contract. They were conveniently summarised in Judgment 3586, consideration 6:
“Firm and consistent precedent has it that an organization enjoys wide discretion in deciding whether or not to extend a fixed-term appointment. The exercise of such discretion is subject to limited review because the Tribunal respects an organization’s freedom to determine its own requirements and the career prospects of staff (see, for example, Judgment 1349, under 11). The Tribunal will not substitute its own assessment for that of the organization. A decision in the exercise of this discretion may only be quashed or set aside for unlawfulness or illegality in the sense that it was taken in breach of a rule of form or procedure; or if it is based on an error of fact or of law, if some essential fact was overlooked; or if there was an abuse or misuse of authority; or if clearly mistaken conclusions were drawn from the evidence (see, for example, Judgments 3299, under 6, 2861, under 83, and 2850, under 6). These grounds of review are applicable notwithstanding that the Tribunal has consistently stated, in Judgment 3444, under 3, for example, that an employee who is in the service of an international organization on a fixed-term contract does not have a right to the renewal of the contract when it expires and the complainant’s terms of appointment contained a similar provision.”
Reference(s)
ILOAT Judgment(s): 1349, 2850, 2861, 3299, 3444, 3586
Keywords:
discretion; fixed-term; non-renewal of contract;
Judgment 4216
129th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the lawfulness of the decision to cancel a competition procedure in which he took part.
Considerations 3-4
Extract:
The Tribunal has consistently held that the executive head of an international organisation may cancel a competition in the interest of the organisation if, for example, it becomes apparent that the competition will not enable the post concerned to be suitably filled, and the opening of such a procedure does not therefore imply that a candidate will necessarily be appointed to that post (see, for example, Judgments 791, consideration 4, 1771, consideration 4(e), 1982, consideration 5(a), 2075, consideration 3, 3647, consideration 9, and 3920, consideration 18).
According to the same case law, the decision not to fill a post for which a competition procedure is opened – like any decision to appoint an official in the opposite case that an appointment is made – is a matter for the discretion of the organisation’s executive head and is therefore subject to only limited review by the Tribunal (see, in particular, aforementioned Judgments 791, consideration 4, or 1771, consideration 6). The Tribunal must, however, ascertain whether that 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 1689, consideration 3, 2060, consideration 4, 2457, consideration 6, 3537, consideration 10, and 3652, consideration 7).
Reference(s)
ILOAT Judgment(s): 791, 1689, 1771, 1982, 2060, 2075, 2457, 3537, 3647, 3652, 3920
Keywords:
competition cancelled; discretion; organisation's interest;
Judgment 4212
129th Session, 2020
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to terminate his contract at the end of the probation period for unsatisfactory service.
Considerations 4-5
Extract:
[I]t is useful to recall that the purpose of probation is to permit an organization to assess the probationer’s suitability for a position. For this reason, the Tribunal has consistently recognized:
“[...] 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. The Tribunal stated in Judgment 1418, under 6, that a discretionary decision of this kind will only be set aside ‘if taken without authority or in breach of a rule of form or of procedure, or if based on a mistake of fact or of law, or if some essential fact was overlooked, or if clearly mistaken conclusions were drawn from the facts, or if there was abuse of authority’. It also reaffirmed that ‘where the reason for refusal of confirmation is unsatisfactory performance, [it] will not replace the organisation’s assessment with its own.’”
(Judgment 2646, consideration 5; see also, for example, Judgments 3913, consideration 2, 3844, consideration 4, and 3085, consideration 23).
As well, an international organization’s obligations regarding a staff member’s probation period are well settled in the case law. For example, in Judgment 3866, consideration 5, the Tribunal observed:
“In Judgment 2788, consideration 1, the Tribunal identified the applicable principles as follows:
‘[I]t is useful to reiterate certain principles governing probation that are of particular relevance to the present case. Its purpose is to provide an organisation with an opportunity to assess an individual’s suitability for a position. In the course of making this assessment, an organisation must establish clear objectives against which performance will be assessed, provide the necessary guidance for the performance of the duties, identify in a timely fashion the unsatisfactory aspects of the performance so that remedial steps may be taken, and give a specific warning that the continued employment is in jeopardy (see Judgment 2529, under 15).’”
Lastly, as stated in Judgment 3678, consideration 1, a probationer is “entitled to have objectives set in advance so that she or he will know the yardstick by which future performance will be assessed”.
Reference(s)
ILOAT Judgment(s): 1418, 2529, 2646, 2788, 3085, 3678, 3844, 3866, 3913
Keywords:
discretion; judicial review; probationary period;
Judgment 4186
128th Session, 2019
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject his request for a job grading review.
Consideration 6
Extract:
It is well established in the Tribunal’s case law that the grounds for reviewing the classification of a post are limited and ordinarily a classification decision would only be set aside if it was taken without authority, was made in breach of the rules of form or procedure, was based on an error of fact or law, overlooked an essential fact, was tainted with abuse of authority or if a truly mistaken conclusion was drawn from the facts (see, for example, Judgments 1647, consideration 7, and 1067, consideration 2). Indeed, the classification of posts involves the exercise of value judgements as to the nature and extent of the duties and responsibilities of the posts, and it is not the Tribunal’s role to undertake this process of evaluation (see, for example, Judgment 3294, consideration 8). The grading of posts is a matter within the discretion of the executive head of an international organisation (or of the person acting on his behalf) (see, for example, Judgment 3082, consideration 20).
Reference(s)
ILOAT Judgment(s): 1067, 1647, 3082, 3294
Keywords:
discretion; judicial review; post classification; reclassification;
Judgment 4172
128th Session, 2019
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the non-renewal of his appointment for unsatisfactory performance.
Consideration 5
Extract:
According to consistent case law, “a decision not to renew a fixed-term appointment, being discretionary, may be set aside only if it was taken without authority, or in breach of a rule of form or of procedure, or was based on a mistake of fact or of law, or if some essential fact was overlooked, or if clearly mistaken conclusions were drawn from the facts, or if there was abuse of authority. [...] What is more, where the reason given for the non-renewal is unsatisfactory performance the Tribunal will not replace with its own the Organisation’s view of the complainant’s fitness for his duties” (see Judgment 1052, under 4).
Reference(s)
ILOAT Judgment(s): 1052
Keywords:
discretion; fixed-term; non-renewal of contract;
Judgment 4170
128th Session, 2019
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her performance reports for the 2010-2011 biennium and the decisions to defer her within-grade salary increment until 1 February 2012, to withhold that increment on that date and to not renew her fixed-term appointment for unsatisfactory service.
Consideration 9
Extract:
The Tribunal has consistently held that international organisations have wide discretion in taking decisions concerning staff performance appraisal and whether to renew a fixed-term appointment. 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 1583, consideration 2, 3039, consideration 7, 4010, consideration 5, and 4062, consideration 6, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 1583, 3039, 4010, 4062
Keywords:
discretion; performance evaluation;
Judgment 4169
128th Session, 2019
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her performance report for the 2008-2009 biennium and the decision to defer her within-grade salary increment until 1 February 2011.
Consideration 7
Extract:
The Tribunal has consistently held that international organisations have wide discretion in taking decisions concerning staff performance appraisal. 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 1583, consideration 2, 3039, consideration 7, or 4010, consideration 5).
Reference(s)
ILOAT Judgment(s): 1583, 3039, 4010
Keywords:
discretion; performance evaluation;
Judgment 4153
128th Session, 2019
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the lawfulness of a competition procedure in which she participated and of the appointment made at the end of that procedure.
Consideration 2
Extract:
According to the Tribunal’s case law, the decision of an international organisation to make an appointment is within the discretion of its executive head. Such a decision is subject to only limited review and 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 law or fact, or if some material fact was overlooked, or if there was an abuse of authority, or if a clearly wrong conclusion was drawn from the evidence (see Judgment 3537, consideration 10). 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 that every applicant must enjoy, whatever her or his hopes of success may be (see, inter alia, Judgment 2163, consideration 1, and the case law cited therein, as well as Judgment 3209, consideration 11). The case law also establishes that an organisation must be careful to abide by the rules on selection and, when the process proves to be flawed, the Tribunal will quash any resulting appointment, albeit on the understanding that the organisation must shield the successful candidate from any injury that may result from the setting aside of an appointment he accepted in good faith (see, for example, Judgment 3130, considerations 10 and 11).
Reference(s)
ILOAT Judgment(s): 2163, 3130, 3209, 3537
Keywords:
appointment; discretion; judicial review; selection procedure;
Judgment 4146
128th Session, 2019
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decisions not to grant him a contract of indefinite duration and not to extend his fixed-term contract beyond nine years of service.
Consideration 3
Extract:
The case law of the Tribunal states that an organisation enjoys wide discretion in deciding whether or not to renew a fixed-term appointment and, a fortiori, whether to convert it into an indefinite one. Although the exercise of such discretion is not unfettered, it is subject to only limited review, as the Tribunal will respect the organisation’s freedom to determine its own requirements. Accordingly, the Tribunal will only set aside such decisions if they were taken without authority or in breach of a rule of form or of procedure, or if they rested on an error of fact or of 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 (see, for example, Judgment 3772, under 5).
Reference(s)
ILOAT Judgment(s): 3772
Keywords:
discretion; fixed-term; non-renewal of contract; permanent appointment;
Judgment 4144
128th Session, 2019
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to revise the “partly satisfactory” overall rating in his performance evaluation report.
Consideration 10
Extract:
Finally, the Tribunal deals with the plea under (h) according to which the complainant’s 2016 PER was flawed as he did not have a specific job description on the basis of which his performance could be assessed, as provided for in Staff Rule 105.1. The Tribunal acknowledges that the Organization should have a specific job description for each post and that the performance should be evaluated on the basis of the duties and responsibilities as set forth in the job description, but it also notes that a general job classification standard, approved by the Director-General, exists. Indeed, Staff Rule 107.3 provides that “[t]he duties and responsibilities of each post in grades 1-12 inclusive shall be evaluated on the basis of job classification standards approved by the Director-General”. The complainant’s 2016 performance was evaluated based on the job classification standard for his post and grade and on the work objectives indicated by the supervisor. Moreover his underperformance, relating mostly to his interactions with his colleagues and supervisors, was not linked to the performance of specific duties and responsibilities. Accordingly, the JAB’s finding that the absence of a comprehensive job description and/or specific benchmarks in this case does not constitute a procedural flaw affecting the lawfulness of the 2016 PER is correct.
Keywords:
discretion; judicial review; limits; post classification;
Consideration 8
Extract:
[A]s regards the pleas under (e) and (f), the Tribunal considers that those pleas challenge the substance of the evaluation, but they do not show that the contested assessment involved any reviewable error. The complainant merely proposes different evaluation criteria. The Tribunal must ascertain whether the marks given to the employee have been worked out in full conformity with the rules, but it cannot substitute its own opinion for that of the bodies responsible for assessing the qualities, performance and conduct of the person concerned. The Tribunal will therefore interfere in this field only if the decision was taken without authority, if it was based on an error of law or fact, a material fact was overlooked, or a plainly wrong conclusion was drawn from the facts, or if it was taken in breach of a rule of form or procedure, or if there was abuse of authority (see Judgment 3268, consideration 9, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 3268
Keywords:
discretion; performance report;
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