Discretion (547, 548, 549, 550, 551,-666)
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Keywords: Discretion
Total judgments found: 609
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Judgment 1641
83rd Session, 1997
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7(c)
Extract:
"Though an organisation must observe acquired rights and keep binding promises, it has broad discretion to amend its Staff Regulations either directly or by incorporating the rules of the common system. In the present economic context and if, like many others, it is in financial straits, it may want to cut costs. There is nothing wrong with the common system's having rules that enable it to do so."
Keywords:
acquired right; amendment to the rules; budgetary reasons; coordinated organisations; discretion; limits; organisation; organisation's duties; organisation's interest; promise; purpose; reduction of salary; staff regulations and rules;
Judgment 1617
82nd Session, 1997
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
"On the strength of the unfavourable appraisal non-renewal of her appointment may have seemed too harsh for someone who until then had had good reports which offered hope of improvement. So the [Organization] concluded that the right expedient was to give a shorter extension so that she might show her mettle. In coming to those conclusions on the evidence before him the Director-General did not go beyond the bounds of his discretion".
Keywords:
contract; different appraisals; discretion; duration of appointment; executive head; extension of contract; non-renewal of contract; proportionality; staff member's interest; unsatisfactory service; work appraisal;
Judgment 1616
82nd Session, 1997
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"The provisions of the combined [Staff] Rules apply to international and local staff alike, and so any provision that applies to one category of staff and not to the other offends against those rules and is unlawful. Here the Director General had no authority to treat as a mere option the consultation of the Joint Board on Appeals from local staff: the combined [Staff] Rules apply to all staff and so does the duty those rules lay down. The rule under which the Director General exercised discretion was an unlawful one and he thereby committed a mistake of law."
Keywords:
advisory body; consultation; discretion; executive head; local status; non-local status; precedence of rules; staff regulations and rules;
Judgment 1614
82nd Session, 1997
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
"As circumstances change so must an organisation reform its structure, and that may mean doing away with posts. Even if abolition is not expressly provided for, no organisation can be required to abide for evermore by the same approach to what it has to do."
Keywords:
abolition of post; discretion; organisation; reorganisation;
Judgment 1610
82nd Session, 1997
World Customs Organization (Customs Co-operation Council)
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 18
Extract:
"In a case of non-renewal the Tribunal will be especially cautious in reviewing any appraisal by a supervisor of the staff member's performance: the supervisor has the technical background and the knowledge of the staff member's work and personality that qualify him better than anyone else to advise the head of the Secretariat on that score. Some appraisals of the complainant's performance are not good." Others are more positive, though not unreservedly. "Though she does produce letters of commendation from several quarters, it is not for the Tribunal to choose between conflicting assessments: it is the executive authority that has discretion to do so."
Keywords:
contract; different appraisals; discretion; executive head; fixed-term; judicial review; limits; non-renewal of contract; qualifications; supervisor; work appraisal;
Judgment 1595
82nd Session, 1997
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
"Though the qualifications stated in a notice of vacancy are not absolutely binding and the Director General may still exercise some discretion, he may not so utterly discard them as to flout the rules that ensure the proper openness and objectivity of the competition."
Keywords:
appointment; competition; criteria; discretion; executive head; flaw; limits; vacancy notice;
Consideration 4
Extract:
The Tribunal "may not replace the Organisation's assessment of the applicants with its own and order any particular appointment. So the complaint is irreceivable insofar as the complainant is claiming reinstatement in her former duties and permanent appointment to the post."
Keywords:
appointment; claim; competence of tribunal; discretion; judicial review; receivability of the complaint;
Judgment 1590
82nd Session, 1997
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
The Tribunal will be especially cautious "where the issue is not transfer but the determination or alteration of the duties to be performed on a given post. Here the duties required of the complainant are not different from those provided for at the date of recruitment, the organisation enjoying the widest discretion in matching duties to needs."
Keywords:
amendment to the rules; assignment; discretion; judicial review; organisation's interest; post; post description; transfer;
Judgment 1576
82nd Session, 1997
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"Since the award of end-of-service promotion falls within the Director-General's discretion, the Tribunal exercises only a limited power of review: it will intervene only if there has been breach of some rule of form or procedure or a mistake of law or fact or failure to take some essential fact into account."
Keywords:
discretion; disregard of essential fact; executive head; formal flaw; judicial review; limits; mistake of fact; procedural flaw; promotion; separation from service;
Judgment 1564
82nd Session, 1997
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"The firm case law has it that the Tribunal will not interfere with the comparison of entrants in a competition. Only when it appears that the choice of candidate may rest on some mistake of fact or law or there may have been misuse of authority will the Tribunal order the production of evidence so that it may review such comparison and will the complainant be entitled to see such evidence. In the instant case the review of the selection procedure reveals neither a breach of the Organization's Staff Regulations or other rules, nor any mistake of fact or law, nor misuse of authority."
Keywords:
abuse of power; candidate; case law; competition; confidential evidence; disclosure of evidence; discretion; due process; judicial review; limits; mistake of fact; misuse of authority; staff regulations and rules;
Judgment 1556
81st Session, 1996
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"Like appointment and promotion, transfer is at the discretion of the executive head of the international organisation and subject to only limited review. The Tribunal may interfere only if the decision was taken ultra vires or shows formal or procedural flaw or mistake of fact or law, or if some material fact was overlooked, or if there was misuse of authority or an obviously wrong inference from the evidence. And the Tribunal will be especially wary in reviewing a transfer since it may not replace the employer's rating of the official with its own."
Keywords:
appointment; decision; discretion; executive head; judicial review; limits; promotion; transfer;
Judgment 1553
81st Session, 1996
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 15
Extract:
Many judgments - for example 1131 [...] - have declared that the Tribunal will not review an organisation's policy but only an individual decision taken to give effect thereto and the actual application of substantive rules. Its power of review is limited. It may not supplant an organisation's view with its own on such matters as policies of restructuring or redeployment of staff intended to make savings or improve efficiency. It will interfere only when a decision was taken without authority or in breach of a formal or procedural rule, or was based on a mistake of fact or of law, or neglected some essential fact, or constituted an abuse of authority, or drew mistaken conclusions from the factual evidence.
Reference(s)
ILOAT Judgment(s): 1131
Keywords:
discretion; redeployment; reorganisation;
Judgment 1547
81st Session, 1996
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 12-14
Extract:
"The EPO had no formal agreement with the union about facilities such as the distribution of a summons to a meeting. But it admitted to the Appeals Committee that its consistent practice since 1992 had been to distribute any unsealed unofficial internal mail, whether private or not, save any text containing a personal attack on someone. Was such usage binding in law? [...] The plain expectation of the staff was that the EPO would deliver notices from their union without let or hindrance." Therefore the complaints succeed.
Keywords:
binding character; discretion; facilities; flaw; freedom of association; freedom of speech; judicial review; limits; organisation's duties; practice; staff union; staff union activity;
Consideration 8
Extract:
"Precedent has it that an organisation has some latitude in affording facilities to a staff union and its decisions are not subject to judicial review. That is not so, however, where it is charged with breach of freedom of association. The Tribunal will indeed interfere if the effect of the impugned decision is to hamper the freedom of speech that any union must enjoy. Refusal to deliver invitations to a union meeting is unquestionably a breach of the privacy of mail and of the freedom of speech that is part and parcel of freedom of association."
Keywords:
case law; discretion; facilities; flaw; freedom of association; freedom of speech; judicial review; limits; staff union; staff union activity;
Judgment 1546
81st Session, 1996
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 18
Extract:
"The conclusion is that he had quite sufficient warning [two written warnings in addition to oral warnings and written comments on the quality of his work] about shortcomings in his performance and the risk of non-renewal. So it is immaterial whether the earlier criticisms are the same as those on which the decision rests. Furthermore, although the Organization's warning was sufficient, it was at liberty to cite prior incidents as well."
Keywords:
conduct; contract; discretion; fixed-term; grounds; non-renewal of contract; unsatisfactory service; warning;
Judgment 1543
81st Session, 1996
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"The Administrative Council exercised its discretion under Article 19(2) [of the EPO's Protocol on Privileges and Immunities] in declining to waive the President's immunity from jurisdiction. Such exercise of discretion is a matter outside the Tribunal's competence, affecting as it does relations between the defendant organisation and a member State. The complaint is therefore 'clearly irreceivable' and must be summarily dismissed in accordance with Article 7 of the Tribunal's Rules."
Reference(s)
ILOAT reference: ARTICLE 7 OF THE RULES
Organization rules reference: ARTICLE 19(2) OF THE EPO PROTOCOL ON PRIVILEGES AND IMMUNITIES
Keywords:
competence of tribunal; complaint; discretion; executive head; iloat statute; judicial review; member state; organisation; privileges and immunities; receivability of the complaint; request by a party; summary procedure; waiver of immunity;
Judgment 1541
81st Session, 1996
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"Refusal to answer an appeal is not obstruction: the litigant may still appeal to the Tribunal against the implied rejection. [...] Moreover, the President of the Office pleads the need to keep down the amount of internal litigation so as not to overload the administration with pointless work and expenditure. He has thereby assessed the Organisation's interests and made an exercise of discretion with which the Tribunal may not interfere in the circumstances of this case."
Keywords:
complaint; direct appeal to tribunal; discretion; executive head; failure to answer claim; iloat statute; implied decision; internal appeal; internal remedies exhausted; judicial review; organisation's duties; organisation's interest; procedure before the tribunal; right of appeal;
Judgment 1519
81st Session, 1996
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 17
Extract:
"The complainants argue that the [salary] survey ought to have compared jobs at like levels of seniority inside and outside [the organization] and not ignored the inverted 'pyramid' of the age structure of [the organization's] staff. There is merit to the criticism. Yet to whichever side one may tend on that point, the comparison is fated to go awry. In any event there was nothing unlawful in the approach the survey took. Neither [the ICSC] nor [the] organization went beyond the bounds of the discretion that the case law allow".
Keywords:
case law; discretion; flemming principle; general service category; icsc decision; inquiry; investigation; salary; seniority; step; terms of appointment;
Consideration 7
Extract:
"The complainants' plea that the [ICSC's] method of comparison with outside pay [as modified in 1992] should not have disregarded training would carry weight if it had any merit [...] but it is hard to evaluate the benefits of it to staff. Any attempt to do so may end in approximation or error because those benefits are not a reward for services rendered and depend on each staff member's duties, experience and career prospects. Though comparison of such benefits might have proved possible, the [ICSC's] methodology did not have to take account of them."
Keywords:
discretion; flemming principle; general service category; icsc decision; inquiry; investigation; salary; terms of appointment;
Consideration 6
Extract:
"The revision of 1992 [of the general methodology which the International Civil Service Commission applies to salary service] did result in a reduction of outside employees' fringe benefits. [...] According to the survey [...] the goods and services taken into account were such that the effect of the change was slight. So the revision is not to be deemed unlawful on that score, the Commission exercised its discretion".
Keywords:
discretion; flemming principle; fringe benefits; general service category; icsc decision; inquiry; investigation; reckoning; salary; scale;
Judgment 1500
80th Session, 1996
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
Advancement under Staff Regulation 3.4 "consists in rising by steps: any staff member qualifies for it who meets the conditions of seniority and 'satisfactory service'. Personal promotion means rising in grade without any change in duties and is a benefit that the Director General may bestow at discretion. He does so only in 'exceptional circumstances' to reward someone for services of a quality higher than that ordinarily expected of the holder of the post."
Reference(s)
Organization rules reference: WIPO STAFF REGULATION 3.4
Keywords:
condition; discretion; executive head; increment; personal promotion; right; staff regulations and rules;
Judgment 1498
80th Session, 1996
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 14
Extract:
"As is plain from the case law, the setting of pay scales is at an organisation's discretion. The Tribunal has recognised as much in Judgments 1000 [...] and 1265 [...], where under 26 it said, quite specifically, that it would not interfere in the drafting of the salary policy that the exercise of such discretion was based on, even though it did have power of review in the area. The discretionary authority of the Agency holds good for interim adjustments as well as for the setting of pay scales on the strength of the five-yearly general surveys."
Reference(s)
ILOAT Judgment(s): 1000, 1265
Keywords:
adjustment; case law; discretion; judicial review; salary; scale;
Judgment 1497
80th Session, 1996
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"An organisation has discretion in holding interviews according to its own rules."
Keywords:
competition; discretion;
Judgment 1495
80th Session, 1996
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 14
Extract:
"A decision determining a career path in accordance with CERN rules is analogous to a decision about grading. A long line of precedent leaves such a decision to the Director-General's discretion."
Keywords:
case law; discretion; executive head; judicial review; post classification; staff regulations and rules;
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