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

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Keywords: Discretion
Total judgments found: 576

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  • Judgment 3669


    122nd Session, 2016
    United Nations Industrial Development Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to select him for a post of Director.

    Consideration 4

    Extract:

    It is convenient, at the outset, to describe the general legal framework in which the complaint is to be considered. Firstly and fundamentally, the Tribunal accepts that the appointment by an international organisation of a candidate to a position is a decision that lies within the discretion of its executive head. It is subject only to limited review and may be set aside only if it was taken without authority or in breach of rule of form or 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. This formulation is found in many judgments of the Tribunal including, for example, Judgment 3209, consideration 11, and is intended to highlight the need for a complainant to establish some fundamental defect in the selection process. Those defects can include the appointment of a candidate who did not meet one of the conditions stipulated in the vacancy announcement (see, for example, Judgment 2712, consideration 8). However, as the Tribunal observed in Judgment 1827, consideration 6: ďThe selection of candidates for promotion is necessarily based on merit and requires a high degree of judgment on the part of those involved in the selection process. Those who would have the Tribunal interfere must demonstrate a serious defect in it; it is not enough simply to assert that one is better qualified than the selected candidate.Ē

    Reference(s)

    ILOAT Judgment(s): 1827, 2712, 3209

    Keywords:

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



  • Judgment 3652


    122nd Session, 2016
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns two appointment decisions by the Director-General.

    Consideration 11

    Extract:

    The Director-Generalís discretion to appoint staff members must be exercised in accordance with the [internal legal] provisions and the general principles of law governing the international civil service, as discretion must be exercised within the bounds of legality.

    Keywords:

    discretion; selection procedure;



  • Judgment 3589


    121st Session, 2016
    Pan American Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns PAHOís rejection of his request for reclassification of his post at the P.4 level.

    Judgment keywords

    Keywords:

    complaint dismissed; discretion; post classification;



  • Judgment 3582


    121st Session, 2016
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to extend her fixed-term appointment following the abolition of her position.

    Consideration 6

    Extract:

    According to firm precedent, a decision concerning the restructuring of an international organisationís 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 organisationís 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).

    Reference(s)

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

    Keywords:

    abolition of post; discretion; limits;



  • 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 officialís seniority, qualifications, skills and performance and, on the other, by the Organisationís 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 JABís 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 Tribunalís 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 officialís seniority, qualifications, skills and performance and, on the other, by the Organisationís 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 organisationís 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-Generalís decision not to grant him personal promotion.

    Consideration 3

    Extract:

    The Tribunalís 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 ďmanifestly out of proportionĒ to the misconduct. In this case, the Tribunal observes the seriousness of the complainantís actions. He misused PAHOís resources and immunity in a fashion that was deliberate and careless; he risked PAHOís 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 complainantsí 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 Eurocontrolís 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;

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Last updated: 28.11.2022 ^ top