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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 3537


    120th Session, 2015
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges a competition procedure and alleges harassment.

    Consideration 10

    Extract:

    The Tribunal cannot substitute its evaluation for that of the EPO and will only interfere with a selection decision if that 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 of procedure; or if there was an abuse of authority (see Judgments 2060, under 4, and 2457, under 6).

    Reference(s)

    ILOAT Judgment(s): 2060, 2457

    Keywords:

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



  • Judgment 3500


    120th Session, 2015
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainants contest the decision to transfer another staff member to the post of Head of the Executive Education Program.

    Judgment keywords

    Keywords:

    abuse of power; bias; complaint dismissed; discretion; joinder; misuse of authority; transfer;



  • Judgment 3495


    120th Session, 2015
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the fact that she was not promoted in the 2012 promotion exercise.

    Consideration 11

    Extract:

    "As the Tribunal has already held in a similar case involving Eurocontrol and another official, while every official should have some prospect of advancement within an organisation and may therefore legitimately hope to move up to a higher position one day, there is no automatic right to promotion. This right is limited, on the one hand, by the official’s seniority, qualifications, skills and performance and, on the other, by the Organisation’s administrative structure and budgetary resources (see Judgment 3404, under 8, and the case law cited therein)."

    Reference(s)

    ILOAT Judgment(s): 3404

    Keywords:

    discretion; judicial review; promotion; right to career advancement;



  • Judgment 3490


    120th Session, 2015
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision not to grant her request for retroactive reclassification of her former post.

    Consideration 18

    Extract:

    "It follows from the JAB’s failure to obtain and consider evidence central to the claim that its conclusion and recommendation are tainted by an error of law. As the Director General adopted the conclusion and accepted the recommendation, his decision is also tainted by an error of law (see Judgment 2742, under 40)."

    Reference(s)

    ILOAT Judgment(s): 2742

    Keywords:

    discretion; disregard of essential fact; final decision; mistake of law;



  • Judgment 3448


    119th Session, 2015
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The Tribunal dismissed the complaint because the non-renewal of a fixed-term contract is discretionary.

    Consideration 7

    Extract:

    "It is well established in the Tribunal’s case law that the non-renewal of a fixed-term contract is discretionary. Such a decision is subject to only limited review by the Tribunal, which respects the freedom of an international organization to determine its own staffing requirements and the career prospects of staff members. A person who is employed on a fixed-term contract does not have a right or a legitimate expectation to a contract extension. Accordingly, the Tribunal will not interfere with a decision not to extend such a contract unless the decision was made without authority, or in breach of a rule of procedure, or was based on a mistake of fact or of law, or overlooked some essential fact, or amounted to an abuse of authority."

    Keywords:

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



  • Judgment 3404


    119th Session, 2015
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The Tribunal found that the complainant had not proved that his lack of promotion in 2012 undermined his prospect of advancement within Eurocontrol.

    Consideration 8

    Extract:

    The Tribunal holds that, while every official should have some prospect of advancement within an organisation and may therefore legitimately hope to move up to a higher position one day, there is no automatic right to promotion. This right is limited, on the one hand, by the official’s seniority, qualifications, skills and performance and, on the other, by the Organisation’s administrative structure and budgetary resources (see Judgments 526, under 4, 3279, under 11, and 3280, under 7, and the case law cited therein).

    Reference(s)

    ILOAT Judgment(s): 526, 3279, 3280

    Keywords:

    discretion; judicial review; promotion;



  • Judgment 3372


    118th Session, 2014
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The Tribunal dismissed the complaint seeking the cancellation of a competition and the appointment resulting from it.

    Consideration 12

    Extract:

    "According to the case law of the Tribunal, the selection of a successful applicant in a competition is a discretionary decision of the executive head of the organisation (see Judgment 2584, under 15). Such a decision is subject to only limited review. The Tribunal will interfere with such a decision only 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 have been drawn from the evidence. Moreover, the Tribunal will exercise its power of review with special caution in such cases, and will not replace the organisation’s assessment of the candidates with its own. (See, for example, Judgments 2362, 2365 and 2392, under 10.)"

    Reference(s)

    ILOAT Judgment(s): 2362, 2365, 2392, 2584

    Keywords:

    candidate; competition; discretion; judicial review;



  • Judgment 3370


    118th Session, 2014
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, who performed duties at a higher level than his grade, impugns the decision not to grant him a promotion and acting allowance, and partially succeeds on the basis that the Organisation breached its duty of care.

    Consideration 8

    Extract:

    "It is well settled in judgments of the Tribunal that it will not order the promotion or reclassification of a staff member, as such decisions are discretionary and involve specialist evaluation (see, for example, Judgment 2706, consideration 14)."

    Reference(s)

    ILOAT Judgment(s): 2706

    Keywords:

    discretion; promotion; reclassification;



  • Judgment 3362


    118th Session, 2014
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision not to renew his short-term contract and not to advertise his post.

    Consideration 13

    Extract:

    "[T]he decision not to create a post, like all decisions relating to the management of posts or the organisation of services, is a discretionary decision the wisdom of which the Tribunal obviously cannot judge, having only a limited power of review (see, for example, Judgments 1131, under 5, and 2856, under 9)."

    Reference(s)

    ILOAT Judgment(s): 1131, 2856

    Keywords:

    discretion; judicial review;



  • Judgment 3350


    118th Session, 2014
    Intergovernmental Organisation for International Carriage by Rail
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision rejecting her request for readjustment of her annual basic salary and reclassification of her post.

    Consideration 3

    Extract:

    "[I]t should be noted that in the area of post classification the Tribunal leaves a considerable degree of discretion to organisations. It cannot simply substitute its own assessment for theirs. Decisions taken in this area are subject to only limited review, and can be set aside only if they were taken without authority, show some formal or procedural flaw or a mistake of fact or of law, overlook some material fact, draw clearly mistaken conclusions from the facts or involve an abuse of authority (see, for example, Judgment 3273, under 6, and Judgment 2581, under 2)."

    Reference(s)

    ILOAT Judgment(s): 2581, 3273

    Keywords:

    discretion; judicial review; post classification;



  • Judgment 3321


    117th Session, 2014
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the Director-General’s decision not to grant him personal promotion.

    Consideration 3

    Extract:

    The Tribunal’s case law has established that, by its very nature, the decision to grant personal promotion lies at the discretion of the executive head of an international organisation and is therefore subject to only limited review. For this reason, it may be quashed only 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 clearly mistaken conclusions were drawn from the evidence, or if there was abuse of authority (see, for example, Judgments 1815, under 3, 2668, under 11, or 3084, under 13).

    Reference(s)

    ILOAT Judgment(s): 1815, 2668, 3084

    Keywords:

    discretion; promotion;



  • Judgment 3295


    116th Session, 2014
    Pan American Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complaint concerning a disciplinary measure was dismissed by the Tribunal on the grounds that he had not demonstrated the existence of an error warranting the cancellation of the sanction.

    Consideration 16

    Extract:

    "In Judgment 2944, under 50, the Tribunal described the test for proportionality as the disciplinary measure must not be “manifestly out of proportion” to the misconduct. In this case, the Tribunal observes the seriousness of the complainant’s actions. He misused PAHO’s resources and immunity in a fashion that was deliberate and careless; he risked PAHO’s reputation and its relationship with the government of Venezuela; he breached his duty of loyalty to PAHO; and his conduct was incompatible with the performance of his duties as PAHO Country Representative in Venezuela. In these circumstances, it cannot be said that summary dismissal was disproportionate to the misconduct."

    Reference(s)

    ILOAT Judgment(s): 2944

    Keywords:

    case law; disciplinary measure; disciplinary procedure; discretion; general principle; misconduct; official; proportionality; serious misconduct; staff member's duties; summary dismissal;



  • Judgment 3283


    116th Session, 2014
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenged the decision not to promote him earlier to grade A3.

    Judgment keywords

    Keywords:

    complaint dismissed; condition; discretion; promotion;



  • Judgment 3280


    116th Session, 2014
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant requests that the 2010 promotion exercise, which was allegedly cancelled for budgetary reasons, be held.

    Judgment keywords

    Keywords:

    complaint dismissed; condition; discretion; personal promotion; right;



  • Judgment 3279


    116th Session, 2014
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complaints regarding the classification of the complainants’ duties following an administrative reform were dismissed by the Tribunal.

    Consideration 12

    Extract:

    The complainants contest the decision of Eurocontrol not to organize a promotion exercise for 2010.
    "The Tribunal notes that as the decision was justified and is to be considered a proper exercise of discretion, and as the suspension of promotion exercises was planned for only one year, it is unfortunate that some staff were negatively affected by the decision but recognises that Eurocontrol must decide based on the overall well-being of the Organisation as a whole and cannot base its decisions only on the specific and particular situations of individual staff members."

    Keywords:

    discretion; organisation's interest; promotion;

    Consideration 11

    Extract:

    "The Tribunal notes that consistent case law states that staff members are not entitled to promotions, as promotions are discretionary decisions (see Judgments 263, under 2, 304, under 1, 940, under 9, 1016, under 3, 1025, under 4, 1207, under 8, 1670, under 14, 2060, under 4, 2835, under 5, and 2944, under 22). In the present case, the decision was made not to hold a promotion round for 2010 due to the budgetary constraints. The Board proposed the relaunch of the promotion exercises in 2011, as mentioned above. Considering Eurocontrol’s intention to hold a promotion round for 2011 subject to the availability of budgetary funds, the Tribunal is of the opinion that the lack of a 2010 promotion round is not unlawful [...]."

    Reference(s)

    ILOAT Judgment(s): 263, 304, 940, 1016, 1025, 1207, 1670, 2060, 2835, 2944

    Keywords:

    case law; claim; complaint; decision; discretion; joinder; judicial review; promotion; submissions;



  • Judgment 3273


    116th Session, 2014
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to place his post in a certain grade group following an allegedly flawed assessment process.

    Consideration 6

    Extract:

    "The Tribunal has consistently confirmed that an evaluation or classification exercise is based on the technical judgement to be made by those whose training and experience equip them for that task. It is subject to only limited review. The Tribunal cannot, in particular, substitute its own assessment for that of the organisation."

    Keywords:

    decision; discretion; judicial review; limits; post classification;



  • Judgment 3268


    116th Session, 2014
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant successfully impugns the establishment of a staff report containing negative comments.

    Considerations 9, 12 and 13

    Extract:

    "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 marks given to the employee have been worked out in full conformity with the rules, but it cannot substitute its own opinion for these bodies’ assessment of 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 Judgments 2834, under 7, and 3006, under 7). This limitation on the Tribunal’s power of review naturally applies to both the mark given in a staff report and the comments accompanying that mark in the report."
    "The restraint which the Tribunal must exercise [...] does not mean that it can disregard the fact that the comment accompanying the complainant’s productivity rating considerably detracts from the marking “good” and that the countersigning officer’s comments underscore that effect. [...] It follows from the foregoing that the [...] disputed staff report must be set aside."

    Keywords:

    discretion; performance evaluation; rating; supervisor;



  • Judgment 3267


    116th Session, 2014
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugned the decision not to waive the time limit for lodging an internal appeal, claiming that his heavy workload constituted an exceptional circumstance justifying the grant of a waiver.

    Considerations 3 and 4

    Extract:

    "It was not in issue that under Staff Rule 11.1.1(b)(3) the discretionary power to waive the time limits can be exercised in exceptional circumstances. That is what the rule said. In its reasons, the Board pointed to the need for certainty that is created by time limits but noted the discretion to waive them in exceptional circumstances. It did not consider there were such circumstances and that the complainant’s workload would not have prevented him from bringing his appeal in time, though it accepted that may have contributed to him overlooking the time limits.
    This reasoning is quite unexceptionable. The complainant argued the reasoning contained a “contradiction”. He pointed to the Board’s acknowledgement in its reasons that the complainant’s heavy workload may possibly have been a contributing factor in the complainant overlooking the deadline. However the substance of what the Board was saying was that it was not satisfied the circumstances were exceptional. It needed to be positively satisfied that they were before it could exercise the discretionary power to waive the time limits. There has been no miscarriage of the exercise of the discretionary power. The Board was not obliged, as the complainant submitted, to involve the Administration and it had power, under Staff Rule 11.1.1(e)(3)(b), to summarily dismiss the appeal as clearly irreceivable. It did so. The complaint to the Tribunal should be dismissed."

    Reference(s)

    Organization rules reference: Staff Rule 11.1.1(b)(3)

    Keywords:

    discretion; exception; internal appeal; time limit; waiver of internal appeal procedure;

    Judgment keywords

    Keywords:

    complaint dismissed; discretion; post classification; time limit;



  • Judgment 3264


    116th Session, 2014
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant successfully impugns the decision not to renew her contract after an extension of her probationary period and is granted damages.

    Judgment keywords

    Keywords:

    breach; complaint allowed; confidential evidence; decision quashed; disclosure of evidence; discretion; due process; duty to inform; extension of contract; general principle; good faith; judicial review; non-renewal of contract; organisation's duties; performance report; probationary period; procedural flaw; respect for dignity; right to reply; unsatisfactory service; work appraisal;



  • Judgment 3257


    116th Session, 2014
    Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant successfully challenged the decision to offer him a one-year extension of his fixed-term contract rather than the two-year extensions he had previously received.

    Judgment keywords

    Keywords:

    breach; complaint allowed; contract; decision quashed; discretion; extension of contract; fixed-term; offer; performance report; procedural flaw; staff regulations and rules; terms of appointment;

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Last updated: 21.10.2021 ^ top