Discretion (547, 548, 549, 550, 551,-666)
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Keywords: Discretion
Total judgments found: 599
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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that the complainant herself had requested the written commitment, and that the conflict of interest cannot be superseded by a commitment or an agreement.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;
Judgment 3928
125th Session, 2018
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to abolish his post and to terminate his appointment while he was on sick leave.
Consideration 9
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;
Judgment 3922
125th Session, 2018
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to offer her a three-month renewal of her contract and to reject the claims she made with respect to her performance evaluation for 2012, the reclassification of her post, the length of her last contract and her allegations of harassment, retaliation and intimidation.
Consideration 21
Extract:
[T]he Tribunal recalls that it has consistently stated that the non-renewal of a fixed-term contract is discretionary and is subject to only limited review to respect the freedom of an international organization to determine its own staffing requirements and the career prospects of staff members. A person who is employed under such a contract does not, in principle, have a right to a contract extension. However, notwithstanding the discretionary nature of such a decision, it must be taken within the rules and guidelines of the organization and the Tribunal’s case law. Failing this, the decision would be set aside for legal or procedural irregularity (see, for example, Judgment 3257, under 7). The Tribunal has further stated that a valid reason and reasonable notice must be given for a decision not to renew a fixed-term contract (see Judgment 3838, under 6).
Reference(s)
ILOAT Judgment(s): 3257, 3838
Keywords:
discretion; fixed-term; non-renewal of contract;
Judgment 3921
125th Session, 2018
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges modifications to the grading and salary structure.
Consideration 11
Extract:
The case law concerning the Tribunal’s consideration of changes to salary structures and grading systems makes clear that the role of the Tribunal is limited and the discretionary power of the organisation to make such changes based on policy or budgetary considerations must ordinarily be respected (see, for example, Judgments 1118, considerations 19 to 20, and 3274, consideration 10).
Reference(s)
ILOAT Judgment(s): 1118, 3274
Keywords:
budgetary reasons; discretion; judicial review; salary;
Consideration 13
Extract:
[T]he Tribunal observed in relation to the arguments advanced by the complainants in those proceedings, that they raised issues of a very technical nature and similar considerations applied as in Judgment 3273, under 6, where the Tribunal noted 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. Such a decision cannot be set aside unless it was taken without authority, shows some formal or procedural flaw or a mistake of fact or of law, overlooks some material fact, draws clearly mistaken conclusions from the facts or is an abuse of authority (see, for example, Judgment 2581).”
Reference(s)
ILOAT Judgment(s): 2581, 3273
Keywords:
discretion; judicial review; post classification;
Judgment 3913
125th Session, 2018
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her appointment at the end of her probationary period.
Consideration 2
Extract:
The Tribunal [...] notes that the basic principles governing probation have been consistently stated, for example, in Judgment 2646, consideration 5, as follows:
“[T]he Tribunal recalls that the reason for probation is to enable an organisation to assess the probationer’s suitability for a position. For this reason, it has recognised 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’.” [...]
This case law was recently confirmed in Judgment 3844, consideration 4.
Reference(s)
ILOAT Judgment(s): 1418, 2646, 3844
Keywords:
discretion; probationary period;
Judgment 3912
125th Session, 2018
International Centre for Genetic Engineering and Biotechnology
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the classification of her post.
Consideration 12
Extract:
It is convenient [...] to set out the guiding principles in a case in which the classification of a post is challenged. They were stated as follows, for example, in Judgment 3589, 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).”
Reference(s)
ILOAT Judgment(s): 1067, 1647, 3082, 3294, 3589
Keywords:
discretion; judicial review; post classification; reclassification;
Judgment 3884
124th Session, 2017
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision not to extend her appointment 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, 3285, under 10, or 3765, under 2).
Reference(s)
ILOAT Judgment(s): 1143, 2845, 3285, 3765
Keywords:
discretion; retirement;
Consideration 11
Extract:
Where a provision confers a broad discretion on the executive head of an organisation, [...] it is perfectly proper for the executive head to decide to establish a rule circumscribing the exercise of her or his own discretionary authority. Indeed, such a measure can only be welcomed since, in principle, it seeks to eradicate the risk of arbitrary decision-making inherent in such authority, and the Tribunal’s case law recognises it as completely lawful (see, specifically with reference to an organisation’s policy concerning the retention of staff beyond retirement age, Judgments 2125, under 6, and 2513, under 2 and 8).
Reference(s)
ILOAT Judgment(s): 2125, 2513
Keywords:
discretion;
Judgment 3858
124th Session, 2017
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her appointment.
Consideration 12
Extract:
The Tribunal has accepted that the question of what is in the best interest of an organisation is a matter peculiarly within the knowledge and competence of the executive head (see Judgment 2377, consideration 5). The Tribunal’s jurisprudence, as discussed in that judgment, is that the Tribunal will normally defer to the view of the executive head and will only intervene if it is shown that the executive head acted without authority or in breach of a rule of form or procedure, or if a decision 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.
Reference(s)
ILOAT Judgment(s): 2377
Keywords:
competence of tribunal; discretion; organisation's interest;
Judgment 3852
124th Session, 2017
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to summarily dismiss her for serious misconduct.
Consideration 13
Extract:
The Tribunal concludes that, based on the evidence, the Director-General could properly determine that the misconduct was proven beyond a reasonable doubt. He therefore properly exercised his discretion to dismiss the complainant summarily, as he did.
Keywords:
burden of proof; disciplinary measure; discretion; termination of employment;
Judgment 3844
124th Session, 2017
International Criminal Police Organization
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 for unsatisfactory performance and conduct.
Consideration 4
Extract:
The Tribunal recalls that “[a]ccording to the case law [...], the Tribunal is competent to review the lawfulness of any decision by the Director-General to terminate a staff member’s probation. In particular, it may determine whether that decision is based on errors of fact or law, or whether essential facts have not been taken into consideration, or whether clearly mistaken conclusions have been drawn from the facts, or, lastly, whether there has been an abuse of authority. The Tribunal may not, however, replace with its own the executive head’s opinion of a staff member’s performance, conduct or fitness for international service (see Judgment 318, considerations). Other cases mention, as further grounds on which the Tribunal will review such decisions, a formal or procedural flaw, or lack of due process (see, for example, Judgments 13, 687, 736, 1017, 1161, 1175, 1183 and 1246) which, it has been noted, must be substantial to invalidate an end-of-probation termination decision.” (See Judgment 2427, consideration 2.)
Reference(s)
ILOAT Judgment(s): 13, 318, 687, 736, 1017, 1161, 1175, 1183, 1246, 2427
Keywords:
discretion; probationary period;
Judgment 3843
124th Session, 2017
ITER International Fusion Energy Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his contract at the end of his probationary period.
Consideration 5
Extract:
It is consistent case law that the decision to confirm or terminate a contract on completion of a probationary period is a discretionary decision. The Tribunal will not intervene except in cases where the decision was 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 (see Judgments 2646, under 5, 3440, under 2, and 3678, under 4, among others). Furthermore, the Tribunal will not replace an organization’s assessment with its own in cases where unsatisfactory performance is the basis for the refusal of confirmation (see Judgment 2916, under 4).
Reference(s)
ILOAT Judgment(s): 2646, 2916, 3440, 3678
Keywords:
discretion; probationary period;
Judgment 3842
124th Session, 2017
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her 2007 performance appraisal report.
Consideration 7
Extract:
The principles governing the Tribunal’s consideration of challenges to staff performance appraisal reports are well settled. Indeed, they are discussed in Judgment 3378, consideration 6. The Tribunal recognises that such reports are discretionary and will set aside or amend 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. Nonetheless the Tribunal insists upon observance of procedures established to evaluate performance.
Reference(s)
ILOAT Judgment(s): 3378
Keywords:
discretion; performance report;
Judgment 3834
124th Session, 2017
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 2
Extract:
In accordance with the Tribunal’s case law, a decision concerning the classification of a post is subject to only limited review. The Tribunal will set aside such a decision only if it has been taken without authority, has been made in breach of the rules of form or procedure, was based on an error of fact or law, has 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, Judgment 3589, under 4, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 3589
Keywords:
discretion; post classification;
Judgment 3827
124th Session, 2017
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the refusal to grant her the lump sum paid to servants whose application to resign is accepted.
Consideration 7
Extract:
It must be recalled that the Tribunal is not competent to rule on the merits of [the Organisation]’s choices in respect of its staff management, for they form part of the general employment policy that an organisation is free to pursue in accordance with its general interests (see Judgment 3225, under 6).
Reference(s)
ILOAT Judgment(s): 3225
Keywords:
discretion; organisation's interest;
Judgment 3772
123rd Session, 2017
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to award him a contract without limit of time.
Consideration 5
Extract:
The Tribunal recognises the wide discretion enjoyed by an organisation in deciding whether or not to convert a fixed-term appointment into an indefinite one (see Judgment 1349, under 11). Such a decision is subject to limited review and will be set aside only “if it is taken without authority or in breach of a rule of form or of procedure, or if it is 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 an abuse of authority” (see Judgments 2694, under 4, and 3005, under 10). In particular, the Tribunal will not substitute its own opinion for that of the organisation assessing the merits of the various candidates for titularisation.
Reference(s)
ILOAT Judgment(s): 1349, 2694, 3005
Keywords:
conversion of contract; discretion;
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