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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 3252


    116th Session, 2014
    United Nations Industrial Development Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision to extend her fixed-term contract for a period of one year instead of three years on the basis of an adverse evaluation report.

    Consideration 6

    Extract:

    "It is necessary to make clear that the Tribunal’s role is not to adjudicate on the question of whether assessments made in appraisal reports are correct or whether discretionary decisions to employ a staff member on a fixed-term contract for one or three years are correct. Discretionary decisions of these types, involving assessment and evaluation, are entrusted to the responsible officers of the international organisations within the Tribunal’s jurisdiction. These types of decisions can only be set aside if they involve some breach of a formal or procedural rule, there is a mistake of fact or law or some material has been overlooked, or a plainly mistaken conclusion has been drawn from the facts, or if there is a misuse of authority (see, for example, Judgment 3006, consideration 7)."

    Reference(s)

    ILOAT Judgment(s): 3006

    Keywords:

    admissible grounds for review; discretion; disregard of essential fact; fixed-term; flaw; formal flaw; grounds; judicial review; limits; mistake of fact; performance report; procedural flaw; rating; work appraisal;



  • Judgment 3251


    116th Session, 2014
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant's request to be included on the list of eligible candidates for personal promotion was dismissed by the Tribunal.

    Consideration 5

    Extract:

    "The Tribunal is of the opinion that the ILO conducted the 2008 personal promotion exercise in accordance with the applicable rules and procedures. The ILO properly applied the new Office Procedure (No. 125, which took effect from 22 October 2009) to the 2008 personal promotion exercise. [...] Considering that the 2008 promotion exercise was launched after Office Procedure No. 125 took effect, the ILO was correct to follow its provisions for the promotion exercise, and not those of Circular No. 334, Series 6, as the complainant suggests. The complainant did not have any acquired right to the 2008 promotion exercise, promotions being considered “an optional and exceptional discretionary measure which is subject to only limited review by the Tribunal” (see Judgments 2668, under 11, 1500, under 4, 1109, under 4, and 1973, under 5)."

    Reference(s)

    Organization rules reference: Office Procedure No. 125; Circular No. 334, Series 6
    ILOAT Judgment(s): 1109, 1500, 1973, 2668

    Keywords:

    acquired right; condition; discretion; interpretation; judicial review; organisation's duties; personal promotion; provision; staff regulations and rules; written rule;



  • Judgment 3228


    115th Session, 2013
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests his staff report, alleging that it was flawed by procedural errors.

    Consideration 3

    Extract:

    "According to the Tribunal’s case law, issues raised by staff reports “are discretionary and the Tribunal 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 from the evidence. Those criteria are the more stringent because the EPO has a procedure for conciliation on staff reports and the Service Regulations entitle officials to appeal to a joint body whose members are directly familiar with the workings of the Office.” (See Judgment 1688, under 5, and also Judgments 806, under 15, and 1144, under 7.) It is clear from the case law that the Tribunal will not interfere with the discretionary assessment of the decision-maker unless there is a reviewable error."

    Reference(s)

    Organization rules reference: Circular No. 246
    ILOAT Judgment(s): 806, 1144, 1688

    Keywords:

    discretion; judicial review; performance report; procedural flaw; rebuttal;



  • Judgment 3223


    115th Session, 2013
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns a decision on which the Tribunal already ruled in Judgment 2881 and which is res judicata.

    Consideration 6

    Extract:

    "[T]he Tribunal considers that, by virtue of the adversarial principle, an employer organisation may not raise an objection to an internal appeal filed by a staff member unless that person is able to express his or her views on the merits of the objection. As the [organisation] points out, Staff Rule 11.1.1, paragraph 4, makes no provision for a staff member to file a rejoinder with the Appeal Board; however, nor does it rule out this possibility, and it does not therefore preclude the submission of a rejoinder by the person concerned in accordance with the requirements of the adversarial principle. [...]
    The internal appeal proceedings were [thus] tainted with a flaw which, contrary to the [organisation]’s submissions, cannot be redressed in proceedings before the Tribunal. In the particular circumstances of the case, the Tribunal will not, however, set aside the impugned decision, but it will grant the complainant compensation in the amount of 1,000 euros for the moral injury caused by this flaw."

    Reference(s)

    Organization rules reference: Paragraph 4 of ITU Staff Rule 11.1.1

    Keywords:

    adversarial proceedings; allowance; breach; compensation; discretion; general principle; iloat; internal appeal; internal appeals body; moral injury; no provision; organisation's duties; procedural flaw; procedure before the tribunal; refusal; rejoinder; reply; request by a party; res judicata; right; right to reply; staff regulations and rules;



  • Judgment 3214


    115th Session, 2013
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant unsuccessfully impugns the decision not to extend his appointment beyond retirement age.

    Consideration 22

    Extract:

    The complainant, who requested the extension of his appointment beyond normal retirement age, claims that he was not informed of the names of the members of the Selection Committee.
    "In the instant case, while the Organisation does not dispute the fact that it did not advise the complainant of the names of the Committee members, he does not say that he asked for this information, although he had every opportunity to do so during the proceedings, in particular when he received the invitation to his interview with that body. Since he did not seek to assert that right, he may not submit that the [Organisation], which was not obliged to supply him with the information in question of its own accord, denied him the possibility of exercising it."

    Keywords:

    age limit; composition of the internal appeals body; discretion; extension beyond retirement age; request by a party; retirement; right; selection board;

    Consideration 13

    Extract:

    "[A] provision [...], which grants the executive head of an organisation the power to propose that another organ adopt a decision, authorises that person to refrain from making such a proposal if he or she sees no reason for it (see Judgment 585, under 5)."

    Reference(s)

    ILOAT Judgment(s): 585

    Keywords:

    decision; discretion; executive head; proposal; staff regulations and rules;

    Consideration 24

    Extract:

    The complainant, who requested the extension of his appointment beyond normal retirement age, takes the Organisation to task for not sending him the Selection Committee’s opinion or the minutes of its deliberations showing its proposal.
    "The Tribunal’s case law has it that, as a general rule, a staff member must have access to all evidence on which the competent authority bases its decisions concerning him or her, especially the opinion issued by such an advisory organ. A document of that nature may be withheld on grounds of confidentiality from a third person but not from the person concerned (see, for example, Judgments 2229, under 3(b), or 2700, under 6).
    [T]he Tribunal observes that the complainant does not say that he asked for the document in question. While the Organisation could not lawfully have refused to grant such a request, it was under no obligation to forward the document of its own accord (see Judgment 2944, under 42). The position would have been different only if – as is not the case here – the reasons given by the competent authority for its decision had been confined to a mere reference to the advisory body’s opinion."

    Reference(s)

    ILOAT Judgment(s): 2229, 2700, 2944

    Keywords:

    advisory body; advisory opinion; age limit; communication to third party; confidential evidence; decision; disclosure of evidence; discretion; duty to inform; exception; extension beyond retirement age; general principle; grounds; official; organisation's duties; proposal; refusal; request by a party; retirement; right; selection board;



  • Judgment 3209


    115th Session, 2013
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant accuses the ITU of having failed in its duty to ensure transparency in a selection process.

    Consideration 11

    Extract:

    According to the Tribunal’s case law, an appointment by an international organisation is a decision that lies within the discretion of its executive head. Being subject to only limited review, it may be set aside only if it was taken without authority or in breach of a rule of form or of procedure, or if it was based on a mistake of fact or of law, or if some material fact was overlooked, or if there was abuse of authority, or if a clearly wrong conclusion was drawn from the evidence. Nevertheless, anyone who applies for a post to be filled by some process of selection is entitled to have 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 his hopes of success may be (see, inter alia, Judgment 2163, under 1, and the case law cited therein).

    Reference(s)

    ILOAT Judgment(s): 2163

    Keywords:

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



  • Judgment 3193


    114th Session, 2013
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges both the reclassification of a vacant post and the appointment to that post of another staff member.

    Consideration 9

    Extract:

    "In Judgment 2803, under 8, the Tribunal observed that “according to a long line of precedent going back to Judgment 476, in order for there to be misuse of authority it must be established that the decision rested on considerations extraneous to the Organization’s interests”. Additionally, the staff member alleging abuse of authority bears the burden of establishing the improper purpose for which the authority was exercised (see Judgment 2104, under 8). It is also equally well established that the executive head of the organisation will generally be regarded as the best judge of what is in the organisation’s interests and the Tribunal will not normally interfere with that assessment. However, it is not sufficient to claim that a decision was taken in the interests of the organisation. The grounds upon which that conclusion is made must be clear to permit the Tribunal to exercise its power of review."

    Reference(s)

    ILOAT Judgment(s): 2104, 2803

    Keywords:

    abuse of power; discretion; duty to substantiate decision; executive head; judicial review; misuse of authority; organisation's interest; purpose;



  • Judgment 3172


    114th Session, 2013
    Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the abolition of her post and the decision not to extend her appointment as procedurally flawed.

    Consideration 16

    Extract:

    "A decision taken for an improper purpose is an abuse of authority. It follows that when a complainant challenges a discretionary decision, he or she by necessary implication also challenges the validity of the reasons underpinning that decision. In this respect, the Tribunal may examine the circumstances surrounding the abolition of the post to determine whether the impugned decision was tainted by abuse of authority."

    Keywords:

    abolition of post; abuse of power; breach; competence of tribunal; decision; discretion; evidence; misuse of authority;



  • Judgment 3084


    112th Session, 2012
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 13

    Extract:

    "The fact that a decision to grant an ad personam promotion lies at the discretion of the Director-General does not preclude appellate review, albeit a limited review of whether the decision involves an error of law or fact or a failure to have regard to a material fact; whether a plainly wrong conclusion was drawn from the facts; whether the decision was taken in breach of a rule of form or procedure or whether there was an abuse of authority (see Judgment 2834, under 7)."

    Reference(s)

    ILOAT Judgment(s): 2834

    Keywords:

    abuse of power; breach; discretion; disregard of essential fact; executive head; grounds; judicial review; mistake of law; mistaken conclusion; misuse of authority; personal promotion; staff regulations and rules;



  • Judgment 3077


    112th Session, 2012
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Judgment keywords

    Keywords:

    competition; complaint dismissed; discretion; selection procedure;



  • Judgment 3062


    112th Session, 2012
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 3

    Extract:

    "It is well established in the Tribunal's case law that assessment of merit is an exercise that involves a value judgement, signifying that persons may quite reasonably hold different views on the matter in issue. Moreover, because of the nature of a value judgement, the grounds on which a decision involving a judgement of that kind may be reviewed are limited to those applicable to discretionary decisions. Thus, the Tribunal will only interfere 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, if it was taken in breach of a rule of form or procedure, or if there was an abuse of authority (see Judgment 3006, under 7)."

    Reference(s)

    ILOAT Judgment(s): 3006

    Keywords:

    discretion; judicial review; performance report;



  • Judgment 3043


    111th Session, 2011
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 18

    Extract:

    "[A]d personam promotion constitutes advancement on merit to reward an employee for services of a quality higher than that ordinarily expected of the holder of the post. In the absence of any provision to the contrary, it is an optional and exceptional discretionary measure which is subject to only limited review by the Tribunal (see Judgments 1500, under 4, and 1973, under 5). This kind of promotion should certainly not be granted as redress for an alleged injury, as the complainant requests. The advancement of an official naturally obeys its own logic related to the classification of the job done and the professional merit of the person in question, which has nothing to do with the logic behind compensation for injuries which may have been caused to this person by the international organisation employing him or her (see Judgment 2706, under 8)."

    Reference(s)

    ILOAT Judgment(s): 1500, 1973, 2706

    Keywords:

    claim; compensation; compensatory measure; definition; discretion; exception; injury; judicial review; limits; no provision; organisation; personal promotion; post; post classification; purpose; refusal; request by a party; satisfactory service; work appraisal;



  • Judgment 3034


    111th Session, 2011
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 24

    Extract:

    [W]here an international organisation is required to apply the principle of equal treatment to officials in dissimilar situations, the Tribunal’s case law allows the organisation a broad discretion to determine the extent to which the dissimilarity is relevant to the rules concerned and to define rules taking account of that dissimilarity (see, for example, Judgments 1990, under 7, or 2194, under 6(a)). When a revision of staff regulations takes place, as occurred here, it will inevitably affect various categories of staff differently, depending on their personal or professional characteristics, such as their age or career pattern, and the organisation should naturally not be required to define specific legal rules for each category.

    Reference(s)

    ILOAT Judgment(s): 1990, 2194

    Keywords:

    discretion; equal treatment; staff regulations and rules;



  • Judgment 3016


    111th Session, 2011
    United Nations Industrial Development Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    Rejection of the complainant's request for reclassification of her post following a classification exercise.
    "The classification of posts involves the exercise of value judgements as to the nature and extent of the duties and responsibilities of the posts. Accordingly, the Tribunal will not substitute its own assessment or direct a new assessment unless certain grounds are established. Consistent precedent has it that 'the Tribunal will not interfere with the decision [...] unless it was taken without authority or shows some procedural or formal flaw or a mistake of fact or of law, or overlooks some material fact, or is an abuse of authority, or draws a clearly mistaken conclusion from the facts' (see Judgment 1281, under 2)."

    Reference(s)

    ILOAT Judgment(s): 1281

    Keywords:

    abuse of power; discretion; disregard of essential fact; flaw; formal flaw; grounds; judicial review; mistake of fact; mistaken conclusion; misuse of authority; post; post classification; procedural flaw;



  • Judgment 3006


    111th Session, 2011
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    Assessment of merit is an exercise that involves a value judgement. It is usual to refer to decisions or recommendations involving a value judgement as 'discretionary', signifying that persons may quite reasonably hold different views on the matter in issue and, if the issue involves a comparison with other persons, they may also hold different views on their comparative rating. The nature of a value judgement means that point-to-point comparisons are not necessarily decisive. Moreover, because of the nature of a value judgement, the grounds on which a decision involving a judgement of that kind may be reviewed are limited to those applicable to discretionary decisions. Thus, the Tribunal will only interfere 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; if it was taken in breach of a rule of form or procedure; or if there was an abuse of authority' (see Judgment 2834, under 7).

    Reference(s)

    ILOAT Judgment(s): 2834

    Keywords:

    abuse of power; discretion; disregard of essential fact; flaw; formal flaw; grounds; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; performance report; procedural flaw; promotion; rating; work appraisal;



  • Judgment 3005


    111th Session, 2011
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 10

    Extract:

    Rejection of a request for conversion of a fixed-term appointment to a permanent one.
    "In Judgment 1349, under 11, the Tribunal noted the wide discretion an organisation enjoys in relation to the decision to convert a fixed-term appointment to a permanent one. Given the highly discretionary nature of the decision, it is subject to limited review and will only be set aside '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 Judgment 2694, under 4)."

    Reference(s)

    ILOAT Judgment(s): 1349, 2694

    Keywords:

    appointment; contract; decision; discretion; fixed-term; judicial review; permanent appointment;



  • Judgment 2996


    110th Session, 2011
    European Molecular Biology Laboratory
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 11

    Extract:

    On the merits, attention must be drawn to the fact that, while the Tribunal may not replace the medical findings of a body such as an invalidity board with its own assessment, it does have full competence to say whether there was due process and to examine whether the board’s opinion shows any material mistake or inconsistency, overlooks some essential fact or plainly misreads the evidence (see, for example, Judgments 1284, under 4, or 2361, under 9).

    Reference(s)

    ILOAT Judgment(s): 1284, 2361

    Keywords:

    discretion; judicial review; medical board; service-incurred;



  • Judgment 2978


    110th Session, 2011
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 4

    Extract:

    "[A]ccording to the Tribunal's case law, when the result of a competition is announced and, more broadly when [...] the Administration chooses between candidates, the duty to state the reasons for the choice does not mean that they must be notified at the same time as the decision (see Judgments 1787, under 5, and 2035, under 4). These reasons may be disclosed at a later date, for example in the context of appeal proceedings (see Judgments 1590, under 7, and 2194, under 7)."

    Reference(s)

    ILOAT Judgment(s): 1590, 1787, 2035, 2194

    Keywords:

    appointment; candidate; competition; date of notification; decision; discretion; duty to substantiate decision; formal requirements; grounds;



  • Judgment 2977


    110th Session, 2011
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 4

    Extract:

    Non-confirmation of appointment at the end of probation for unsatisfactory performance.
    "It is well settled that 'the widest measure of discretion' attends decisions as to the confirmation or otherwise of probationary appointments (see Judgment 1386, under 17). Such decisions are subject to review only on the grounds that 'there was a mistake of fact or law, or a formal or procedural flaw, or if some essential fact was overlooked, or if a clearly mistaken conclusion was drawn from the evidence, or if there was abuse of authority' (see Judgment 1175, under 5)."

    Reference(s)

    ILOAT Judgment(s): 1175, 1386

    Keywords:

    discretion; judicial review; performance report; probationary period;



  • Judgment 2976


    110th Session, 2011
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 8

    Extract:

    Grant of an exceptional long-term care benefit for an insured person suffering from complete paralysis below the arms.
    "[T]he question whether something should be granted as an 'exceptional' measure is one that invites a value judgement akin to that involved in a discretionary decision. As such, it is subject to only limited review. However, it may be reviewed on the grounds, amongst others, that it involves an error of law and/or that it overlooks some material fact (see, for example, Judgments 1281, under 2, and 2514, under 13)."

    Reference(s)

    ILOAT Judgment(s): 1281, 2514

    Keywords:

    discretion; judicial review; medical grounds; medical opinion;

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