Judicial review (538, 540, 542, 544, 547, 548, 549, 550, 551, 553, 555, 557, 558, 862, 559, 561, 563, 565, 569, 571, 572, 927, 841,-666)
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Keywords: Judicial review
Total judgments found: 548
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Judgment 4316
130th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the introduction of fixed “bridging days” to balance the number of public holidays at the different places of employment.
Consideration 17
Extract:
A decision taken in the exercise of this broad discretion may only be quashed for unlawfulness for breach of general principles of law, of a rule of form or procedure; or if it is unquestionably unreasonable. “It must be recalled that the Tribunal is not competent to rule on the merits of [the Organisation]’s choices in respect of its staff management, for they form part of the general employment policy that an organisation is free to pursue in accordance with its general interests” (see Judgments 3827, under 7, 3225, under 6, and 2061, under 5).
Reference(s)
ILOAT Judgment(s): 2061, 3225, 3827
Keywords:
discretion; judicial review;
Judgment 4312
130th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to reclassify his post.
Consideration 3
Extract:
The classification of posts necessarily involves the exercise of value judgements as to the nature and extent of the duties and responsibilities of the posts and it is not the Tribunal’s role to undertake that evaluation (see, for example, Judgment 3294, consideration 8). That classification is a matter within the discretion of the executive head of the organisation or the person acting on her or his behalf (see, for example, Judgments 3082, consideration 20, 4040, consideration 3, and 4186, consideration 6). That is why it is well established in the Tribunal’s case law that the grounds for reviewing the classification of a post are limited and ordinarily a classification decision would only be set aside if it was taken without authority, was made in breach of the rules of form or procedure, was based on an error of fact or law, overlooked an essential fact, was tainted with abuse of authority or if a truly mistaken conclusion was drawn from the facts (see, for example, Judgments 1647, consideration 7, and 1067, consideration 2).
Reference(s)
ILOAT Judgment(s): 1067, 1647, 3082, 3294, 4040, 4186
Keywords:
discretion; judicial review; post classification;
Judgment 4311
130th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to apply the sanction of summary dismissal to him.
Consideration 9
Extract:
The Tribunal has recently ruled that “where there is an investigation by an investigative body in disciplinary proceedings, the Tribunal’s role is not to reweigh the evidence collected by it, as reserve must be exercised before calling into question the findings of such a body and reviewing its assessment of the evidence. The Tribunal will interfere only in the case of manifest error” (see Judgments 3757, under 6, and 3872, under 2).
Reference(s)
ILOAT Judgment(s): 3757, 3872
Keywords:
inquiry; investigation; investigation report; judicial review;
Judgment 4290
130th Session, 2020
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision of the Director-General not to promote her in the 2018 performance-based promotion exercise.
Consideration 8
Extract:
The Tribunal recalled, in Judgment 4066, consideration 3, that its 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 also Judgment 2835, under 5). 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, 3495, 4066
Keywords:
discretion; judicial review; promotion;
Judgment 4277
130th Session, 2020
International Bureau of Weights and Measures
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who has been receiving a retirement pension since 1 December 2017, impugns her “pay slip” for January 2018.
Consideration 20
Extract:
As a rule, the Tribunal will not substitute its own assessment for that of an expert such as an actuary (see Judgments 3360, under 4 and 5, 3538, under 11 to 15, and 4134, under 26). However, since the complainant alleges blatant errors, the Tribunal will examine her objections.
Reference(s)
ILOAT Judgment(s): 3360, 3538, 4134
Keywords:
actuary; expert inquiry; judicial review; manifest error;
Judgment 4273
130th Session, 2020
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge their classification in the new career structure established following the 2015 five-yearly review.
Consideration 6
Extract:
According to the Tribunal’s case law, an organisation has broad discretion when altering salary structures and grading systems (see Judgments 2778, under 7, 3921, under 11, and 4134, under 26 and 49) and classifying officials individually (see, for example, Judgment 1495, under 14). Decisions on such matters are therefore subject to only limited review by the Tribunal, which will censure them only if they have been taken in breach of a rule of form or procedure, if they are based on an error of fact or law, if some essential fact was overlooked, if clearly mistaken conclusions were drawn from the evidence or if there was misuse of authority.
Reference(s)
ILOAT Judgment(s): 1495, 2778, 3921, 4134
Keywords:
discretion; grade; judicial review; salary;
Judgment 4212
129th Session, 2020
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to terminate his contract at the end of the probation period for unsatisfactory service.
Considerations 4-5
Extract:
[I]t is useful to recall that the purpose of probation is to permit an organization to assess the probationer’s suitability for a position. For this reason, the Tribunal has consistently recognized:
“[...] 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.’”
(Judgment 2646, consideration 5; see also, for example, Judgments 3913, consideration 2, 3844, consideration 4, and 3085, consideration 23).
As well, an international organization’s obligations regarding a staff member’s probation period are well settled in the case law. For example, in Judgment 3866, consideration 5, the Tribunal observed:
“In Judgment 2788, consideration 1, the Tribunal identified the applicable principles as follows:
‘[I]t is useful to reiterate certain principles governing probation that are of particular relevance to the present case. Its purpose is to provide an organisation with an opportunity to assess an individual’s suitability for a position. In the course of making this assessment, an organisation must establish clear objectives against which performance will be assessed, provide the necessary guidance for the performance of the duties, identify in a timely fashion the unsatisfactory aspects of the performance so that remedial steps may be taken, and give a specific warning that the continued employment is in jeopardy (see Judgment 2529, under 15).’”
Lastly, as stated in Judgment 3678, consideration 1, a probationer is “entitled to have objectives set in advance so that she or he will know the yardstick by which future performance will be assessed”.
Reference(s)
ILOAT Judgment(s): 1418, 2529, 2646, 2788, 3085, 3678, 3844, 3866, 3913
Keywords:
discretion; judicial review; probationary period;
Judgment 4186
128th Session, 2019
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject his request for a job grading review.
Consideration 6
Extract:
It is well established in the Tribunal’s case law that the grounds for reviewing the classification of a post are limited and ordinarily a classification decision would only be set aside if it was taken without authority, was made in breach of the rules of form or procedure, was based on an error of fact or law, overlooked an essential fact, was tainted with abuse of authority or if a truly mistaken conclusion was drawn from the facts (see, for example, Judgments 1647, consideration 7, and 1067, consideration 2). Indeed, the classification of posts involves the exercise of value judgements as to the nature and extent of the duties and responsibilities of the posts, and it is not the Tribunal’s role to undertake this process of evaluation (see, for example, Judgment 3294, consideration 8). The grading of posts is a matter within the discretion of the executive head of an international organisation (or of the person acting on his behalf) (see, for example, Judgment 3082, consideration 20).
Reference(s)
ILOAT Judgment(s): 1067, 1647, 3082, 3294
Keywords:
discretion; judicial review; post classification; reclassification;
Judgment 4171
128th Session, 2019
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to dismiss her internal complaints of moral harassment.
Consideration 5
Extract:
[T]he Tribunal will rely on the findings of the Appeals Board and, since no manifest error is apparent, will take for established the facts as the Board ascertained them. As the Tribunal has stated in its case law, an internal appeals body plays a fundamental role in the resolution of disputes, owing to the guarantees of objectivity derived from its composition, its extensive knowledge of the functioning of the organisation and the investigative powers granted to it. It gathers the evidence and testimonies that are necessary in order to establish the facts, as well as the data needed for an informed assessment thereof (see, for example, Judgments 2295, consideration 10, and 3424, consideration 11).
Reference(s)
ILOAT Judgment(s): 2295, 3424
Keywords:
internal appeal; internal appeals body; judicial review;
Judgment 4169
128th Session, 2019
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her performance report for the 2008-2009 biennium and the decision to defer her within-grade salary increment until 1 February 2011.
Consideration 5
Extract:
Since the Appeals Board did not respond to the complainant’s allegations, it is impossible to determine whether the Board gave due consideration to the question of whether the complainant’s partly unfavourable performance rating and the deferral of her within-grade increment owed to prejudice or other extraneous factor, as required under paragraph 5(b) of the Board’s Statutes, which was hence breached. Furthermore, that provision merely illustrates the general principles that apply in this matter, regardless of whether they are laid down in any rule or regulation.
The impugned decision of 27 November 2015 rests on the opinion delivered by the Appeals Board, which the Director-General simply accepted. That decision is, consequently, tainted by the same error of law and must be set aside (see, for similar cases, Judgments 2742, consideration 40, 2892, consideration 14, 3490, consideration 18, and 3934, consideration 5).
Reference(s)
ILOAT Judgment(s): 2742, 2892, 3490, 3934
Keywords:
advisory opinion; internal appeals body; judicial review;
Judgment 4153
128th Session, 2019
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the lawfulness of a competition procedure in which she participated and of the appointment made at the end of that procedure.
Consideration 2
Extract:
According to the Tribunal’s case law, the decision of an international organisation to make an appointment is within the discretion of its executive head. Such a decision is subject to only limited review and 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 law or fact, or if some material fact was overlooked, or if there was an abuse of authority, or if a clearly wrong conclusion was drawn from the evidence (see Judgment 3537, consideration 10). Nevertheless, anyone who applies for a post to be filled by some process of selection is entitled to have her or 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 her or his hopes of success may be (see, inter alia, Judgment 2163, consideration 1, and the case law cited therein, as well as Judgment 3209, consideration 11). The case law also establishes that an organisation must be careful to abide by the rules on selection and, when the process proves to be flawed, the Tribunal will quash any resulting appointment, albeit on the understanding that the organisation must shield the successful candidate from any injury that may result from the setting aside of an appointment he accepted in good faith (see, for example, Judgment 3130, considerations 10 and 11).
Reference(s)
ILOAT Judgment(s): 2163, 3130, 3209, 3537
Keywords:
appointment; discretion; judicial review; selection procedure;
Judgment 4144
128th Session, 2019
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to revise the “partly satisfactory” overall rating in his performance evaluation report.
Consideration 10
Extract:
Finally, the Tribunal deals with the plea under (h) according to which the complainant’s 2016 PER was flawed as he did not have a specific job description on the basis of which his performance could be assessed, as provided for in Staff Rule 105.1. The Tribunal acknowledges that the Organization should have a specific job description for each post and that the performance should be evaluated on the basis of the duties and responsibilities as set forth in the job description, but it also notes that a general job classification standard, approved by the Director-General, exists. Indeed, Staff Rule 107.3 provides that “[t]he duties and responsibilities of each post in grades 1-12 inclusive shall be evaluated on the basis of job classification standards approved by the Director-General”. The complainant’s 2016 performance was evaluated based on the job classification standard for his post and grade and on the work objectives indicated by the supervisor. Moreover his underperformance, relating mostly to his interactions with his colleagues and supervisors, was not linked to the performance of specific duties and responsibilities. Accordingly, the JAB’s finding that the absence of a comprehensive job description and/or specific benchmarks in this case does not constitute a procedural flaw affecting the lawfulness of the 2016 PER is correct.
Keywords:
discretion; judicial review; limits; post classification;
Judgment 4139
128th Session, 2019
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her fixed-term contract as a result of her post having been abolished.
Consideration 2
Extract:
The Tribunal has consistently held that a decision concerning the restructuring of an international organization’s services, including one involving the abolition of a post, lies at the discretion of the executive head of the organization and is therefore subject to only limited review. The Tribunal must verify whether this decision was taken in accordance with the rules on competence, form or procedure, whether it involves an error of fact or of law, whether it constituted misuse of authority, whether it failed to take account of material facts or whether it draws clearly incorrect conclusions from the evidence (see, for example, Judgments 1131, consideration 5, 2510, consideration 10, 2933, consideration 10, 3582, consideration 6, or 4099, consideration 3).
Reference(s)
ILOAT Judgment(s): 1131, 2510, 2933, 3582, 4099
Keywords:
discretion; judicial review; reorganisation;
Judgment 4106
127th Session, 2019
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to apply to him the sanction of discharge.
Consideration 12
Extract:
As the Tribunal stated in Judgment 3872, under 2, “[c]onsistent precedent has it that decisions which are made in disciplinary cases 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 (see Judgment 3297, under 8). Moreover, where there is an investigation by an investigative body in disciplinary proceedings, the Tribunal’s role is not to reweigh the evidence collected by it, as reserve must be exercised before calling into question the findings of such a body and reviewing its assessment of the evidence. The Tribunal will interfere only in the case of manifest error (see Judgment 3757, under 6)”.
Reference(s)
ILOAT Judgment(s): 3297, 3757, 3872
Keywords:
disciplinary procedure; evidence; judicial review; manifest error;
Judgment 4101
127th Session, 2019
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who alleges that he was subjected to moral harassment, challenges the refusal to extend his special leave without pay and to grant him certain accommodations with regard to his working arrangements.
Consideration 8
Extract:
According to the case law of the Tribunal, a decision on a request for special leave is discretionary (see, for example, Judgment 2262, consideration 2). Considering the discretion afforded to international organizations to take such decisions, such a decision is subject to only limited review and can be set aside only if it has been taken without authority or in breach of the rules of form or procedure, if it is based on an error of fact or law or has overlooked essential facts, if clearly mistaken conclusions have been drawn from the facts or if there is an abuse of authority (see Judgements 1929, consideration 5, and 2619, consideration 5). In this case, the Director did not exceed the limits of her discretionary authority, which the Tribunal must respect in exercising its limited power of review over such matters.
Reference(s)
ILOAT Judgment(s): 1929, 2262, 2619
Keywords:
discretion; judicial review; limits; special leave;
Judgment 4099
127th Session, 2019
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to abolish her position.
Consideration 3
Extract:
According to the Tribunal’s case law, a decision concerning the restructuring of an international organization’s services, including one concerned with the abolition of a position, lies at the discretion of the organization’s executive head and is therefore subject to only limited review. The Tribunal must verify whether this decision was taken in accordance with the rules on competence, form or procedure, whether it involves an error of fact or of law, whether it constituted misuse of authority, whether it failed to take account of material facts or whether it draws clearly incorrect conclusions from the evidence. However, it cannot supplant the organization’s appraisal with its own (see, for example, Judgments 1131, consideration 5, 2510, consideration 10, 2933, consideration 10, and 3582, consideration 6).
Reference(s)
ILOAT Judgment(s): 1131, 2510, 2933, 3582
Keywords:
abolition of post; discretion; judicial review; reorganisation;
Judgment 4091
127th Session, 2019
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant primarily challenges the amount of compensation offered to her by the IAEA in respect of a harassment complaint.
Consideration 17
Extract:
[T]he complainant is asking the Tribunal to reweigh the evidence. As stated in Judgment 3593, under 12, the Tribunal has consistently held:
“[...] that it is not the Tribunal’s role to reweigh the evidence before an investigative body which, as the primary trier of fact, has had the benefit of actually seeing and hearing many of the persons involved, and of assessing the reliability of what they have said. For that reason such a body is entitled to considerable deference. So that where in the present case the Investigation Panel has heard evidence and made findings of fact based on its appreciation of that evidence and the correct application of the relevant rules and case law, the Tribunal will only interfere in the case of manifest error.”
(See also Judgments 3995, under 7, 3882, under 13, and 3682, under 8.)
Reference(s)
ILOAT Judgment(s): 3593, 3682, 3882, 3995
Keywords:
disciplinary procedure; evidence; inquiry; internal appeals body; investigation; judicial review; manifest error; testimony;
Judgment 4089
127th Session, 2019
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to extend her appointment beyond the statutory retirement age.
Consideration 8
Extract:
[T]he Tribunal has said of the power to extend an appointment beyond retirement age (in relation to the IAEA) that “the decision whether or not to grant [such] an extension to any particular staff member is peculiarly a matter for the exercise of the Director General’s discretion. The Tribunal will only interfere with such exercise on very limited grounds” (see Judgment 2377, consideration 4) and, in the context of another organisation, that “[s]ince the career of a member of staff normally ends automatically when that person reaches retirement age, any such prolongation is, by definition, an exceptional measure” (see Judgment 3285, consideration 9).
Reference(s)
ILOAT Judgment(s): 2377, 3285
Keywords:
age limit; competence of tribunal; discretion; executive head; extension beyond retirement age; judicial review; retirement;
Judgment 4086
127th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to maintain her contested job description.
Considerations 10-11
Extract:
The Tribunal’s case law has it that when a staff member of an international organization is transferred to a new post in non-disciplinary circumstances, that transfer is subject to the general principles governing all decisions affecting the staff member’s status. The organization must show due regard, in both form and substance, for the dignity of the staff member, particularly by providing her or him with work of the same level as that which she or he performed in her or his previous post and matching her or his qualifications (see, for example, Judgment 2229, under 3(a)). This requirement is consistent with Staff Regulation 4.3(c) [...].
The responsibilities that attach to posts are comparable where on an objective basis the level of the duties to be performed is similar (see, for example, Judgment 1343, under 9). It is not for the Tribunal to reclassify a post or to redefine the duties attaching thereto, as that exercise falls within the discretion of the executive head of the organization, on the recommendation of the relevant manager, and it is equally within the power of the management to determine the qualifications required for a particular post (see, for example, Judgment 2373, under 7). However, every employee has the right to a proper administrative position, which means that she or he should both hold a post and perform the duties pertaining thereto and should be given real work (see, for example, Judgment 2360, under 11).
Reference(s)
ILOAT Judgment(s): 1343, 2229, 2360, 2373
Keywords:
assignment; discretion; general principle; grade; judicial review; organisation's duties; post classification; post description; post held by the complainant; reclassification; respect for dignity; transfer;
Judgment 4084
127th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to transfer her and the appointment of another staff member without a competitive recruitment process.
Consideration 8
Extract:
On the merits, it is convenient to recall that an executive head of an international organization has wide discretionary powers to manage the affairs of the organization pursuant to the policy directives and its rules. The discretion includes making decisions relating to the structure of the organization, its departments, divisions or sections, including their restructuring to meet policy objectives, as well as decisions relating to the creation and abolition of posts and the transfer of staff as a part of the process. Firm precedent has it that such decisions are consequently subjected to only limited review. Accordingly, the Tribunal will ascertain whether the decisions are taken in accordance with the relevant rules on competence, form or procedure; rest upon a mistake of fact or law or whether they amount to abuse of authority. The Tribunal will not rule on the appropriateness of the decisions as it will not substitute the organization’s view with its own (see, for example, Judgments 2742, under 34, and 3488, under 3).
Reference(s)
ILOAT Judgment(s): 2742, 3488
Keywords:
discretion; judicial review; transfer;
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