Discretion (547, 548, 549, 550, 551,-666)
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Keywords: Discretion
Total judgments found: 599
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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;
Judgment 2975
110th Session, 2011
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 15
Extract:
"It is well established in the case law that decisions taken in relation to restructuring and the reclassification of posts within an Organization's structure are 'within the discretion of the organisation and may be set aside only on limited grounds [...] for example, if the competent bodies breached procedural rules, or if they acted on some wrong principle, overlooked some material fact or reached a clearly wrong conclusion' (see Judgment 2807, under 5)."
Reference(s)
ILOAT Judgment(s): 2807
Keywords:
discretion; judicial review; post classification; reorganisation;
Judgment 2944
109th Session, 2010
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 50
Extract:
"[A]ccording to firm precedent, as recalled in particular in Judgments 207, 1984 and 2773, the disciplinary authority has a discretion to determine the severity of a disciplinary measure justified by a staff member's misconduct, provided that the measure adopted is not manifestly out of proportion to the offence. It cannot be alleged that termination of the complainant’s appointment, the disciplinary measure chosen, was manifestly out of proportion to the degree of seriousness of the acts listed above, notwithstanding the complainant’s length of service with UNESCO and her recognised professional abilities. The Tribunal therefore considers that, in taking this decision, the Director General did not exceed the limits of his discretionary authority."
Reference(s)
ILOAT Judgment(s): 207, 1984, 2773
Keywords:
case law; condition; disciplinary measure; disciplinary procedure; discretion; misconduct; proportionality; summary dismissal;
Consideration 22
Extract:
"[A]ccording to firm precedent, international civil servants do not have a right to promotion (see, for example, Judgments 1207, under 8, or 2006, under 12) and [...] decisions in this domain, which are taken at the discretion of the executive head of the organisation, are subject to only limited judicial review (see, for example, Judgments 1670, under 14, or 2221, under 9)."
Reference(s)
ILOAT Judgment(s): 1207, 1670, 2006, 2221
Keywords:
case law; decision; discretion; executive head; judicial review; limits; official; promotion; right;
Judgment 2933
109th Session, 2010
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 10-11
Extract:
According to firm precedent, decisions concerning the restructuring of an international organisation’s services, such as a decision to abolish a post, may be taken at the discretion of its executive head and are consequently subject to only limited review. For this reason, while it is incumbent upon the Tribunal to ascertain whether such a decision has been taken in accordance with the rules on competence, form or procedure, whether it rests on a mistake of fact or of law, or whether it constituted abuse of authority, it may not rule on its appropriateness, since it may not supplant an organisation’s view with its own (see, for example, Judgments 1131, under 5, or 2510, under 10).
Nevertheless, there must be objective grounds for any decision to abolish a post (see Judgments 1231, under 26, or 1729, under 11).
Reference(s)
ILOAT Judgment(s): 1131, 1231, 1729, 2510
Keywords:
abolition of post; discretion; limits;
Judgment 2916
109th Session, 2010
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"[W]here the ground for non-renewal is unsatisfactory performance, the Tribunal will not substitute its own assessment for that of the organisation concerned [...]. However, an organisation may not in good faith end someone's appointment for poor performance without first warning him and giving him an opportunity to do better [...]. Moreover, it cannot base an adverse decision on a staff member's unsatisfactory performance if it has not complied with the rules established to evaluate that performance [...]."
Reference(s)
ILOAT Judgment(s): 1262, 1583, 2414
Keywords:
case law; contract; discretion; fixed-term; good faith; grounds; judicial review; non-renewal of contract; organisation's duties; performance report; staff regulations and rules; tribunal; unsatisfactory service; warning; work appraisal;
Judgment 2900
108th Session, 2010
European Telecommunications Satellite Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"It is [...] for the Tribunal to determine whether it is competent to hear a dispute, and the Tribunal is by no means bound in this respect by the opinions expressed by the parties in the course of the proceedings."
Keywords:
competence of tribunal; discretion; independence; procedure before the tribunal;
Judgment 2899
108th Session, 2010
European Free Trade Association
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 21
Extract:
"[T]he decision of the chief executive officer of an organisation to recover an unduly paid sum of money falls within his or her discretionary authority and is subject to only limited review by the Tribunal, but this decision must nevertheless be censured if it is tainted with a formal or procedural irregularity, or if it was based on a mistake of fact or of law."
Keywords:
decision; discretion; executive head; formal flaw; judicial review; limits; mistake of fact; procedural flaw; recovery of overpayment;
Judgment 2884
108th Session, 2010
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 19
Extract:
"As the Internal Appeals Committee erred in law in finding that it was not necessary to include the use of an assessment centre in the vacancy notice, it follows that the President's decision endorsing this view involves an error of law. This error would ordinarily result in the impugned decision and the underlying selection procedure being set aside. However, having regard to the circumstances and the complainant's failure to demonstrate any link between the breach of the Service Regulations and the outcome of the process, the decision and the process will not be set aside. This should not be construed in any way as condoning the conduct of the EPO. In accordance with its power under Article VIII of the Statute, the Tribunal decides that the complainant is entitled to moral damages in the amount of 10,000 euros for the breach of the Service Regulations of the Office."
Reference(s)
ILOAT reference: Article VIII of the Statute
Keywords:
breach; competition; competition cancelled; discretion; flaw; moral injury; staff regulations and rules;
Judgment 2883
108th Session, 2010
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 8 and 10
Extract:
The complainant joined the Organisation under a three-year fixed-term contract. The first six months of his appointment constituted a probationary period, which was extended for an additional three months.
"The Tribunal is of the opinion that the Director-General's decision not to renew the complainant's contract is based on errors of fact and law, and must therefore be set aside."
"The Tribunal holds that reinstatement, which could only be as a probationer without any guarantee of confirmation, would raise practical difficulties because of the time that has elapsed since the termination of the complainant's appointment and the scheduling conflicts that may occur between the training courses and the new probationary period [...]. Therefore, the Tribunal finds it appropriate not to order reinstatement but it will award the complainant material damages in the amount of 35,000 euros for the loss of a valuable opportunity to have his appointment confirmed."
Keywords:
discretion; judicial review; non-renewal of contract; organisation's duties; probationary period; reinstatement; unsatisfactory service;
Judgment 2869
108th Session, 2010
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
The complainant, a staff union representative, challenged the Agency's decision not to promote him in the course of the 2007 promotion exercise. He claimed that he was among the most senior staff eligible for promotion and that the Administration had failed to provide adequate reasons for its decision. The Tribunal found in his favour.
"[T]he present situation has the appearance of an abuse of discretion. The complainant's situation is extreme (i.e. being promoted much less frequently than the average) yet there has been no valid reason given for the continued nonpromotion. According to Eurocontrol's reasoning, without a breach of procedure or obvious flaw, the Agency does not have to explain its decisions. This is not correct. Precedent has it that "there is no rule or principle of law that requires the Director-General to state in so many words just why he has turned someone down for promotion or appointment. What matters is that, if the official asks, the reasons must be revealed. Otherwise the Tribunal may not exercise its power of review and determine whether the reasons are lawful and the decision sound" (see Judgment 1355, under 8)."
Reference(s)
ILOAT Judgment(s): 1355
Keywords:
abuse of power; discretion; duty to inform; duty to substantiate decision; judicial review; misuse of authority; promotion; staff member's interest; staff representative; staff union activity;
Consideration 8
Extract:
"[I]t is not enough that the decision may be reasonable and in good faith; it must also appear to be reasonable and in good faith. [...] [A]ll decisions regarding the promotion or non-promotion of staff union representatives must be, and must appear to be, made impartially so as to avoid any hint of preference or prejudice."
Keywords:
abuse of power; bias; discretion; equal treatment; good faith; judicial review; misuse of authority; promotion; respect for dignity; staff representative; staff union activity;
Judgment 2865
108th Session, 2010
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"[T]he date on which an employee takes up his or her duties depends on the number of staff the Organisation needs in order to function efficiently, which is a matter lying within its discretionary authority. Of course this does not exempt it from objectively weighing its own interests against those of the new recruit. In particular, it must not act arbitrarily or abuse its authority."
Keywords:
abuse of power; appointment; bias; date; discretion; misuse of authority; organisation's duties; organisation's interest; staff member's interest;
Judgment 2856
107th Session, 2009
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"[I]t is useful to recall, as stated in Judgment 2510, under 10, that «an international organisation necessarily has power to restructure some or all of its departments or units, including by the abolition of posts, the creation of new posts and the redeployment of staff (see Judgments 269 and 1614)»."
Reference(s)
ILOAT Judgment(s): 1614, 2510
Keywords:
abolition of post; discretion; reassignment; reorganisation;
Consideration 9
Extract:
"As the Tribunal pointed out in Judgment 1131, under 5, «[i]t may not supplant an organisation's view with its own on such matters as a restructuring of posts or redeployment of staff intended to make savings or improve efficiencies». Decisions on them are discretionary and the Tribunal's power of review in this respect is limited."
Reference(s)
ILOAT Judgment(s): 1131
Keywords:
abolition of post; creation of post; discretion; judicial review; limits; reassignment; reorganisation;
Judgment 2849
107th Session, 2009
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 20-22
Extract:
The complainant was dismissed for misconduct.
"The question remains whether the sanction of dismissal was warranted in the circumstances. In Judgment 207 the Tribunal held that it is not its role to substitute one disciplinary sanction for another unless the penalty imposed is clearly out of proportion with the gravity of the offence. The Tribunal further commented in Judgment 2656, under 5, that '[...] lack of proportionality is to be treated as an error of law warranting the setting aside of a disciplinary measure even though a decision in that regard is discretionary in nature [...]. In determining whether disciplinary action is disproportionate to the offence, both objective and subjective features are to be taken into account and, in the case of dismissal, the closest scrutiny is necessary (see Judgment 937).'"
"In the present case, the Director-General rejected the Appeals Committee's recommendation that a lesser sanction be imposed. [The] Director-General [...] observed that 'it is well established in law that unsatisfactory conduct and unsatisfactory performance are different matters with different administrative consequence'. While the Director-General's observation is correct, it does not follow that exemplary prior service is not a relevant mitigating factor in the determination of a proper sanction."
"It must be noted, however, that in the present case it was not a matter of a single transgression within the context of an otherwise unblemished career. The Director-General properly considered the incompatibility of the complainant's conduct with his role as a representative of the FAO and considered the nature of the actions of misconduct in deciding that, when taken together they justified a dismissal from service. In these circumstances, the Tribunal will not interfere."
Reference(s)
ILOAT Judgment(s): 937, 2656
Keywords:
discretion; general principle; judicial review; misconduct; proportionality; termination of employment;
Judgment 2845
107th Session, 2009
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
According to Article 9.8, paragraph 2, of the UPU Staff Regulations, the Director General may, in the interest of the Union, extend the age limit in exceptional cases. The Tribunal considers that "the Director General's refusal to extend the complainant's service beyond the statutory age limit constitutes an act of retaliation [...]. The Director General used his discretionary authority for purposes other than those for which it was intended, thereby committing an abuse of authority. It follows that the impugned decision must be set aside."
Reference(s)
Organization rules reference: Article 9.8, paragraph 2, of the UPU Staff Regulations
Keywords:
abuse of power; age limit; amendment to the rules; career; discretion; exception; executive head; extension beyond retirement age; hidden disciplinary measure; misuse of authority; organisation's interest; purpose; refusal; staff regulations and rules;
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