Discretion (547, 548, 549, 550, 551,-666)
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Keywords: Discretion
Total judgments found: 609
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Judgment 1855
87th Session, 1999
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 2 and 5
Extract:
The complainant appeals against the Executive Head's decision to dismiss his appeal against the refusal of the organisation to grant him special leave to attend a two-day training course. "It is common ground that the decision as to whether or not to grant a staff member special leave to attend training courses is discretionary. [T]he obligations under Article 29 of the Service Regulations to facilitate training may involve different considerations when one looks at the desirability of the staff member's taking such training, and when one has regard to the effect of the staff member's absence on the functioning of the service. In the present case, the refusal of special leave was justified by the growing backlog of [work]."
Reference(s)
Organization rules reference: ARTICLE 29 OF THE EPO SERVICE REGULATIONS
Keywords:
criteria; decision; discretion; enforcement; organisation's interest; special leave; staff regulations and rules; training;
Judgment 1827
86th Session, 1999
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"The 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."
Keywords:
burden of proof; candidate; competition; criteria; discretion; judicial review; limits; procedural flaw; promotion; qualifications; satisfactory service; selection board; work appraisal;
Judgment 1821
86th Session, 1999
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"The principles governing the limits on the discretion of international organisations to set adjustments in staff pay [...] may be concisely stated as follows: (a) An international organisation is free to choose a methodology, system or standard of reference for determining salary adjustments for its staff provided that it meets all other principles of international civil service law [...]. (b) The chosen methodology must ensure that the results are 'stable, foreseeable and clearly understood' [...]. (c) Where the methodology refers to an external standard but grants discretion to the governing body to depart from that standard, the organisation has a duty to state proper reasons for such departure [...]. (d) While the necessity of saving money may be one valid factor to be considered in adjusting salaries provided the method adopted is objective, stable and foreseeable [...], the mere desire to save money at the staff's expense is not by itself a valid reason for departing from an established standard of reference [...]." (See cited case law.)
Keywords:
adjustment; budgetary reasons; case law; condition; coordinated organisations; cost-of-living increase; criteria; discretion; duty to inform; duty to substantiate decision; exception; executive body; good faith; grounds; international civil service principles; limits; organisation's duties; patere legem; rule of another organisation; salary; scale;
Consideration 15
Extract:
"All comments and statements by member states were made within the context of the proper decision-making organs of the [organisation's] structure. To the extent that the complainants are attempting to show that member states tried to influence the decision through the committees or the governing body to which they belonged, it was perfectly proper for them to do so. An international organisation would not exist without its member states and the proper means for them to exert influence over an organisation they create is precisely that of debate, discussion and persuasion within the committees and governing body of the organisation itself."
Keywords:
decision; discretion; executive body; independence; legislative body; member state;
Judgment 1814
86th Session, 1999
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"Though the Director General does have discretion [as to who may be considered as a dependent child], the staff member must be made aware of any criteria he is applying." (See Judgment 1204.)
Reference(s)
ILOAT Judgment(s): 1204
Keywords:
criteria; dependant; dependent child; discretion; duty to inform; executive head; family allowance; limits; organisation's duties; parent;
Judgment 1798
86th Session, 1999
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"A strong line of precedent has it that payslips are individual decisions which may be challenged before the Tribunal. [...] Even though the council has reserved its right to alter pay for July 1996 later, and retroactively, the impugned decisions do show a cause of action."
Keywords:
amendment to the rules; case law; cause of action; discretion; executive body; individual decision; payslip; tribunal;
Judgment 1791
86th Session, 1999
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 9-10
Extract:
"In support of their plea of abuse of authority the complainants accuse [the Organization] of scorning [...] the independence of the international civil service by giving in to a single government that was itself defying the principle [...]. There is not a shred of evidence to suggest that [the Organization] was yielding to [the] insistence [of one State]. The impugned decision was taken because of a resolution by the Council, the sovereign body that decides things scientific, technical and administrative [...]."
Keywords:
abuse of power; breach; discretion; executive body; general principle; independence; international civil service principles; member state; misuse of authority; official;
Judgment 1789
86th Session, 1999
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"[The Organisation] rejected [the complainant's application] on the grounds that he was overqualified [for the job put up for competition]. Such grounds are wrong in law. Yet they are the only ones on which the [organisation] rejected the complainant, purporting to act under R II 1.03 [of the Staff Regulations]. It thereby denied the complainant his right to apply and to have his application properly considered. There was breach of equal treatment."
Reference(s)
Organization rules reference: ARTICLE R II 1.03 OF THE STAFF REGULATIONS
Keywords:
breach; candidate; competition; criteria; discretion; equal treatment; flaw; grounds; procedure before the tribunal; right; staff regulations and rules;
Judgment 1787
86th Session, 1999
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 10-11
Extract:
"The qualifications expected may be just 'desirable', not requirements binding in law. But the appointing authority is not free on that account [...] to disregard the fact that some do qualify and to plump for the very one who does not, even one who in other respects has the right experience and skills. [...] Here the Organization picked someone wanting in listed qualifications which, though said to be only 'desirable', were in fact essential. It thereby fell short of the standards of objectiveness and openness that must govern appointment to a senior post in an international organisation. The process of selection cannot stand [...]" (See Judgment 1595, under 10.)
Reference(s)
ILOAT Judgment(s): 1595
Keywords:
appointment; candidate; competition; competition cancelled; condition; criteria; discretion; flaw; post; post description; procedure before the tribunal; professional experience; qualifications; vacancy notice;
Consideration 5
Extract:
"When a decision is adverse to a staff member the competent administrative authority does have to reveal the reasons for it. But when the result of a competition is announced and, more broadly, when a choice is made between candidates the reasons for the choice need not be notified at the same time as the decision."
Keywords:
candidate; competition; decision; discretion; duty to substantiate decision; grounds; procedure before the tribunal; time limit;
Judgment 1784
86th Session, 1999
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 15
Extract:
"Under Manual paragraph I.2.510 the Organization is empowered to require that the original bills be attached to the form that the staff member must fill up to claim the education grant. It does not have to accept evidence of the sort the complainant is offering. It will evaluate any alternative proof he may produce in the absence of the bills. Original documents must have gone astray before, and it is often possible to reconstitute them. It is up to the Organization to decide - subject to review by the Tribunal - whether the proof offered is satisfactory."
Reference(s)
Organization rules reference: PARAGRAPH I.2.510 OF WHO MANUAL
Keywords:
admissibility of evidence; allowance; application for execution; appraisal of evidence; burden of proof; complainant; disclosure of evidence; discretion; education expenses; evidence; judicial review; lack of evidence;
Judgment 1779
85th Session, 1998
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"The Tribunal will review the [restructuring] process insofar as it may involve personal prejudice, abuse of authority or similar defects. But it is not for the Tribunal to decide what a normal procedure' for restructuring might be."
Keywords:
abuse of power; bias; discretion; flaw; judicial review; limits; misuse of authority; reorganisation;
Judgment 1771
85th Session, 1998
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2(c)
Extract:
"The complainant applies for an expert enquiry to determine whether she is fit for the duties of the post. Firm precedent has it that an executive head must be allowed discretion to determine what services the Organisation needs and whether someone is able to provide them, and that the Tribunal may exercise only a limited power of review over decisions on such matters. To allow the complainant's application for expert inquiry would be to assume that the Tribunal might replace the Director General's assessment of her with its own and would be alien to the notion of limited review [...]."
Keywords:
case law; competition; discretion; executive head; expert inquiry; judicial review; qualifications; refusal;
Judgment 1733
84th Session, 1998
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 14
Extract:
The authorities of the complainant's home country, who were asked to give an opinion about giving him a promotion, declined their support for him but gave no reasons. If the country "had given a reason the Director General would have had to consider whether it was sound or not and whether refusing him the appointment was in the Agency's best interests. since it offered none, he had no basis on which to exercise his discretion. The complainant was fully qualified for promotion; his abilities were well known to the Agency and appreciated. The paramount consideration mentioned in Article VII.d [of the IAEA Staff Regulations] was heeded, namely seeking staff of the highest standards of efficiency, technical competence and integrity. The reason stated by the Agency for refusing him the appointment which he would otherwise have been granted is therefore untenable and acting from that reason amounted to a mistake in law."
Reference(s)
Organization rules reference: ARTICLE VII.D OF THE IAEA STAFF REGULATIONS
Keywords:
discretion; independence; member state; organisation's duties; organisation's interest; promotion; qualifications; staff regulations and rules;
Judgment 1732
84th Session, 1998
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
The administration has both the right and the duty to organise itself and to supervise the expenditure of its funds and the movements of its staff in ways which it conceives to be in the best interests of the Organization as a whole. No staff member, even a senior one such as the complainant, has the right to refuse to comply with administrative requirements which are generally applicable throughout the Organization."
Keywords:
discretion; organisation's duties; organisation's interest; staff member's duties;
Judgment 1730
84th Session, 1998
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 14
Extract:
"Like any other organisation in the United Nations system, the FAO has a duty to ensure that its staff attain the highest standards of efficiency and technical competence. The arrangements made with the Chinese government up to 1992 prevented the Organization from exercising its own discretion about the level of competence of Chinese recruits. The fact that the arrangements have ceased is to be welcomed and any surviving anomalies should be corrected, not perpetuated."
Keywords:
appointment; discretion; flaw; independence; organisation; procedure before the tribunal;
Judgment 1729
84th Session, 1998
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
"While the Tribunal will not review the substance of discretionary administrative decisions [...] it does have the power to review the process leading to such decisions and to look into questions such as abuse of authority, incomplete consideration of the facts or failure to respect elementary principles of justice: see Judgment 1131 [...]."
Reference(s)
ILOAT Judgment(s): 1131
Keywords:
abuse of power; decision; discretion; disregard of essential fact; general principle; judicial review; mistake of law; misuse of authority;
Judgment 1724
84th Session, 1998
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 11-12
Extract:
"Article 3.10.4 of [IFAD's] Manual says that a decision to terminate the contract of employment of an official may be taken by the President, 'and the President alone', in the interests of the Fund. So it does vest discretion in the President to end an appointment in the Fund's interest without resort to disciplinary process. [...] Yet the Fund is mistaken [...] that the President has unfettered authority under the provision to cite the Fund's interests as grounds for dismissal. He must set out the facts fully enough to enable the Tribunal to exercise its power of review and to determine objectively whether it is indeed the Fund's interests that are the reason for the dismissal. As was held in Judgments 1234 [...] under 19 and 1496 [...] under 9, although an organization's 'own interests are paramount [...] it must still, for the sake of proper management and mutual confidence, treat its staff fairly."
Reference(s)
Organization rules reference: ARTICLE 3.10.4 OF IFAD'S MANUAL
ILOAT Judgment(s): 1234, 1496
Keywords:
discretion; duty to substantiate decision; judicial review; limits; organisation's interest; respect for dignity; staff member's interest; staff regulations and rules; termination of employment;
Judgment 1713
84th Session, 1998
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"In choosing figures of local pay for the purpose of applying Flemming there can be no single hard-and-fast approach. As was held in Judgment 1265, the [ICSC] must be allowed some discretion over method, even though the Tribunal will still review the exercise of it. The decision impugned may not stand if, say, it overlooks or misconstrues some particular factor, or if some method is applied for the wilful contrivance of lower figures of local pay, or if corners are cut for the sake of saving time, but to the detriment of staff interests."
Reference(s)
ILOAT Judgment(s): 1265
Keywords:
abuse of power; discretion; disregard of essential fact; flaw; flemming principle; icsc decision; judicial review; mistake of fact; mistaken conclusion; misuse of authority; salary;
Consideration 15
Extract:
"The Tribunal will not entertain any general challenge to the policies of the [ICSC] or of the FAO: it will rule only on particular pleas from the parties."
Keywords:
discretion; icsc decision; judicial review; limits;
Judgment 1682
84th Session, 1998
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"The Tribunal may not itself set the complainants' pay: it must respect the Council's discretion [...]. It therefore sends the case back so that the Laboratory may, in keeping with its own self-imposed rules, set pay scales [...]."
Keywords:
adjustment; discretion; judicial review; limits; salary;
Judgment 1680
84th Session, 1998
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"Judgment 809 [...] explained just what [UNESCO Staff] Rule 105.2(b) [on special leave with pay] meant. Its wording 'makes it plain that such a decision will be exceptional' [...] the Director-General does have discretion, and the Organization seeks to rely on it, but obviously it does not stretch to breach of the rules or of the general principles that safeguard the dignity of an international civil servant."
Reference(s)
Organization rules reference: UNESCO STAFF RULE 105.2(B)
ILOAT Judgment(s): 809
Keywords:
discretion; general principle; refusal to assign work; respect for dignity; special leave; staff regulations and rules;
Judgment 1659
83rd Session, 1997
European Free Trade Association
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 12
Extract:
Having lost three out of seven members and having a "working budget that was but a fraction of what it had been before, it was therefore only reasonable for [EFTA] to consider overhauling the Secretariat and go ahead with the abolition of units and then of posts. [...] It was the EFTA Council of seven member States that resolved to wind up the Secretariat, pay off the permanent employees and let fixed-term appointments run out. It saw that as the only proper course because of political uncertainty and lack of money to pay the staff after 30 June 1995. The seven States also wanted to safeguard the freedom of the four remaining members to set up a smaller Secretariat which matched the smaller membership. There was no mistake of law in the Council's reasoning."
Keywords:
abolition of post; budgetary reasons; discretion; judicial review; member state; non-renewal of contract; organisation; reorganisation; separation from service; termination of employment;
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