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

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Keywords: Discretion
Total judgments found: 609

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  • Judgment 4066


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

    Consideration 3

    Extract:

    The Tribunal’s case law does not guarantee to staff members of an international organization an automatic right to promotion (see Judgment 3495, under 11). It is also well established that an organization has a wide discretion in deciding whether to promote a staff member. For this reason, such decisions are subject to limited review. The Tribunal will only interfere if the decision was taken without authority; if it was based on an error of law or fact, some material fact was overlooked, or a plainly wrong conclusion was drawn from the facts; if it was taken in breach of a rule of form or of procedure; or if there was an abuse of authority (see Judgments 2835, under 5, and 3279, under 11). Additionally, the Tribunal has stated that since the selection of candidates for promotion is necessarily based on merit and requires a high degree of judgement on the part of those involved in the process, a person who challenges it must demonstrate a serious defect in the decision (see Judgment 1827, under 6). The breach of a procedural rule is a flaw on the basis of which a decision not to promote a staff member may be set aside (see Judgment 1109, under 4).

    Reference(s)

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

    Keywords:

    discretion; judicial review; promotion;



  • Judgment 4065


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

    Consideration 5

    Extract:

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

    Reference(s)

    ILOAT Judgment(s): 3872

    Keywords:

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



  • Judgment 4062


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

    Consideration 6

    Extract:

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

    Reference(s)

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

    Keywords:

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



  • Judgment 4051


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

    Consideration 5

    Extract:

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

    Reference(s)

    ILOAT Judgment(s): 3297, 3872, 3875

    Keywords:

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



  • Judgment 4039


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

    Consideration 4

    Extract:

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

    Keywords:

    discretion; inquiry; investigation; opening of an investigation;



  • Judgment 4038


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

    Consideration 4

    Extract:

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

    Keywords:

    discretion; inquiry; investigation;



  • Judgment 4023


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

    Consideration 2

    Extract:

    The Tribunal has stated the basic principles which guide it, where a decision such as this is challenged, [...] in Judgment 3652, consideration 7. [...]
    A complainant is required to demonstrate that there was a serious defect in the selection process which impacted on the consideration and assessment of her or his candidature. It is not enough simply to assert that one is better qualified than the selected candidate (see Judgment 3669, consideration 4).
    However, when an organization conducts a competition to fill a post, the process must accord with the relevant rules and the case law (see Judgment 1549, considerations 11 and 13, and the case law cited therein).

    Reference(s)

    ILOAT Judgment(s): 1549, 3652, 3669

    Keywords:

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



  • Judgment 4019


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

    Consideration 2

    Extract:

    The Tribunal has consistently held that staff promotions by an international organisation are decisions which lie within the discretion of its executive head. Such a decision is therefore subject to only limited review by the Tribunal, which will interfere only if the decision was taken without authority, if a rule of form or procedure was breached, if it was based on a mistake of fact or of law, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgments 2834, under 7, 3006, under 7, or 3742, under 3).

    Reference(s)

    ILOAT Judgment(s): 2834, 3006, 3742

    Keywords:

    discretion; judicial review; promotion;



  • Judgment 4010


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

    Considerations 5-8

    Extract:

    A convenient starting point in the Tribunal’s consideration of the complainant’s performance appraisals for 2012 is to identify the principles which are applicable. The principles are well settled. The Tribunal recognises that “assessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment” (see Judgment 3945, consideration 7). The Tribunal will set aside a report only if there is a formal or procedural flaw, a mistake of fact or law, or neglect of some material fact, or misuse of authority or an obviously wrong inference drawn from the evidence (see, for example, Judgments 3842, consideration 7, 3692, consideration 8, 3378, consideration 6, 3006, consideration 7, and 2834, consideration 7). [...]
    [T]he complainant’s analysis does not reveal any factual errors that might have had a material effect on the ultimate conclusions about his performance. While the analysis reflects the complainant’s view, understandably favourable to him, of how he had performed in relation to those seven activities, it does not reveal an error of the type that would warrant intervention by the Tribunal having regard to the principles discussed in consideration 5 above. The complainant’s supervisor was entitled to form the view he had of the complainant’s performance and it was not flawed by any material factual error. It was a view based on evaluation and assessment of available material. While the complainant disagrees with that evaluation and assessment, it was within the supervisor’s discretionary power to make that evaluation and assessment, and there is no basis established by the complainant for reviewing the exercise of that power and for setting aside the performance appraisal which was, in part, based on it.

    Reference(s)

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

    Keywords:

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



  • Judgment 4004


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

    Consideration 2

    Extract:

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

    Reference(s)

    ILOAT Judgment(s): 2742, 2933

    Keywords:

    abolition of post; discretion; limits;



  • Judgment 3996


    126th Session, 2018
    Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to investigate her claim of harassment, the decision to permanently transfer her and the decision to offer her an extension of appointment in her new position.

    Consideration 4J

    Extract:

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

    Keywords:

    conflict of interest; discretion; transfer;



  • Judgment 3991


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

    Considerations 7 and 9

    Extract:

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

    Reference(s)

    ILOAT Judgment(s): 3769, 3914

    Keywords:

    discretion; non-renewal of contract;



  • Judgment 3970


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

    Consideration 2

    Extract:

    The Tribunal has consistently held that a decision to retain an official beyond the normal retirement age is an exceptional measure over which the executive head of an organisation exercises wide discretion. Such a decision is therefore subject to only limited review by the Tribunal, which will interfere only if the decision was taken without authority, if a rule of form or procedure was breached, if it was based on a mistake of fact or of law, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgments 1143, under 3, 2845, under 5, or 3765, under 2, and, specifically in respect of the application of Article 54 of the Service Regulations to members of boards of appeal, Judgments 3214, under 12, and 3285, under 10).

    Reference(s)

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

    Keywords:

    age limit; discretion; extension beyond retirement age;



  • Judgment 3939


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

    Consideration 3

    Extract:

    As the Tribunal has consistently held, a decision to retain an official beyond the normal retirement age stipulated in a provision of this kind is an exceptional measure over which the executive head of an organisation exercises wide discretion. Such a decision is therefore subject to only limited review by the Tribunal, which will interfere only if the decision was taken without authority, if a rule of form or procedure was breached, if it was based on a mistake of fact or of law, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgments 1143, under 3, 2845, under 5, 3285, under 10, or 3765, under 2).

    Reference(s)

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

    Keywords:

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



  • Judgment 3934


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

    Consideration 9

    Extract:

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

    Reference(s)

    Organization rules reference: Staff Regulation 9.5

    Keywords:

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



  • Judgment 3929


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

    Consideration 8

    Extract:

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

    Reference(s)

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

    Keywords:

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



  • 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;

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Last updated: 07.03.2024 ^ top