Discretion (547, 548, 549, 550, 551,-666)
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Keywords: Discretion
Total judgments found: 609
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Judgment 1266
75th Session, 1993
International Union for the Protection of New Varieties of Plants
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 26 and 28
Extract:
Vide Judgment 1265, considerations 26 and 28.
Keywords:
adjustment; case law; criteria; discretion; general service category; icsc decision; judicial review; limits; local status; reckoning; salary; scale;
Considerations 26 and 29
Extract:
Vide Judgment 1265, considerations 26 and 29.
Keywords:
adjustment; case law; criteria; discretion; icsc decision; judicial review; limits; municipal court; reckoning; salary; scale;
Considerations 26-27
Extract:
Vide Judgment 1265, considerations 26 and 27.
Keywords:
adjustment; criteria; discretion; general service category; icsc decision; judicial review; limits; local status; reckoning; salary; scale; staff member's interest;
Judgment 1265
75th Session, 1993
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 26 and 29
Extract:
The organization, a member of the "common system" administered by the ICSC, revised the salaries of staff in the general service category in keeping with a scale drawn up by the ICSC for organisations whose headquarters are in Geneva. The complainants submit that the ICSC's decisions are invalid. "The Tribunal may not interfere in the exercise of [the organization's] discretion or in the drafting of the salary policy it is based on. But it does have a power of review in this area which is clearly defined [...] the Tribunal has, like other international and national administrative tribunals, set criteria for what may be termed 'external' or 'marginal' review of discretionary decisions, and [...] they were set out in detail in Judgment 1000, under 12."
Reference(s)
ILOAT Judgment(s): 1000
Keywords:
adjustment; case law; compensation; criteria; discretion; general service category; icsc decision; judicial review; limits; municipal court; reckoning; salary; scale;
Considerations 26 and 28
Extract:
The organization, a member of the "common system" administered by the ICSC, revised the salaries of staff in the general service category in keeping with a scale drawn up by the ICSC for organisations whose headquarters are in Geneva. The complainants submit that the ICSC's decisions are invalid. "The Tribunal may not interfere in the exercise of such discretion or in the drafting of the salary policy it is based on. But it does have a power of review in this area which is clearly defined [...] there are specific [factors] that in this comparative sort of exercise must be taken in isolation from the rest and subject to critical evaluation. Judgment 1000 [...] illustrates how such a procedure may yield notable results. In this case the information provided by the Commission shows that it is quite possible to isolate the factor at issue and even to put exact figures on the effects they have on the salary scale."
Reference(s)
ILOAT Judgment(s): 1000
Keywords:
adjustment; case law; criteria; discretion; general service category; icsc decision; judicial review; limits; local status; reckoning; salary; scale;
Considerations 26-27
Extract:
The organization, a member of the "common system" administered by the ICSC, revised the salaries of staff in the general service category in keeping with a scale drawn up by the ICSC for organisations whose headquarters are in Geneva. The complainants submit that the ICSC's decisions are invalid. "[T]he Tribunal may not interfere in the exercise of such discretion or in the drafting of the salary policy it is based on. But it does have a power of review in this area which is clearly defined [...] it will consider in the event of dispute whether the Commission's methodology has been properly observed. The methodology is an important factor in ensuring that the results are stable, foreseeable and clearly understood. And though the Commission is free to choose its methods, once it has chosen them the staff may expect them to be followed in all circumstances."
Keywords:
adjustment; criteria; discretion; general service category; icsc decision; judicial review; limits; local status; patere legem; reckoning; salary; scale; staff member's interest;
Judgment 1262
75th Session, 1993
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"The case law has made it consistently plain that a decision not to renew a fixed-term appointment, being discretionary, may be set aside only if it was taken without authority, or in breach of a rule of form or of procedure, or was 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. Moreover, when the reason given for non-renewal is unsatisfactory performance, the Tribunal will not replace the organisation's assessment of the complainant's fitness for his duties with its own."
Keywords:
abuse of power; case law; contract; decision; discretion; disregard of essential fact; fixed-term; flaw; formal flaw; grounds; judicial review; mistake of fact; mistaken conclusion; misuse of authority; non-renewal of contract; procedural flaw; qualifications; unsatisfactory service;
Considerations 6-7
Extract:
"The complainant argues that the ESO drew mistaken conclusions from the facts in that it was not free to have him perform tasks other than those provided for under the terms of his contract [...]. A description of the complainant's post [...] that he himself signed included what were called 'background activities', and they went beyond the tasks that had originally been required of him. The Tribunal is satisfied that by confining himself to [certain tasks] he displayed a lack of commitment which properly put at issue the question as to whether the observatory should extend his contract." The ESO did not draw plainly mistaken conclusions about his performance.
Keywords:
contract; decision; discretion; fixed-term; judicial review; mistaken conclusion; non-renewal of contract; post description; unsatisfactory service; work appraisal;
Judgment 1251
74th Session, 1993
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
The complainant was accused of misappropriating funds and summarily dismissed for misconduct. He claims payment of repatriation costs, to which he would not be entitled upon summary dismissal under Rule 109.9 (f). However, the Director-General agreed to deduct them from the sums which he allegedly owed the organization. The Tribunal holds that "since the dismissal was wrongful and the organization has failed to prove that the complainant owes it that sum, the claim succeeds."
Reference(s)
Organization rules reference: STAFF RULE 109.9 (F)
Keywords:
decision; disciplinary measure; discretion; executive head; repatriation allowance; right; serious misconduct; summary dismissal; termination of employment;
Judgment 1250
74th Session, 1993
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 22-23
Extract:
The complainant was dismissed for misconduct after refusing transfer to a post outside headquarters. He alleges that summary dismissal was at odds with the principle of proportionality. The Tribunal holds that "dismissal was not a sudden decision. Furthermore, even after the proposal for dismissal he was given two opportunities to change his mind. [...] The decision to dismiss was a proper exercise of the discretion of the organization and did not infringe the principle of proportionality."
Keywords:
decision; disciplinary measure; discretion; duty station; general principle; headquarters; organisation; proportionality; refusal; serious misconduct; termination of employment; transfer;
Judgment 1249
74th Session, 1993
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
WHO put an end to the complainant's appointment on the grounds that the authorities of his country were unwilling to release him any longer. "The Director-General took himself to be bound by the attitude of the government of the Soviet Union. In doing so, he mistook the limits of his own discretion. As was held in Judgment 15 [...] among others, he must in exercising that discretion observe the general principles that govern the international civil service and safeguard the independence of organisation and official alike. The Director-General has committed a mistake of law."
Reference(s)
ILOAT Judgment(s): 15
Keywords:
case law; complainant; contract; decision; discretion; executive head; extension of contract; fixed-term; independence; international civil service principles; limits; member state; nationality; non-renewal of contract; official; organisation; secondment;
Judgment 1246
74th Session, 1993
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
"As the Tribunal has held on several occasions, for example in Judgment 1183, a decision by the Director-General not to confirm the appointment of a probationer 'is a discretionary one. Its power of review being limited, the Tribunal will set the decision aside only if it finds a mistake of fact or of law, or a formal or procedural flaw, or a clearly mistaken conclusion on the evidence, or neglect of an essential fact or abuse of authority.'"
Reference(s)
ILOAT Judgment(s): 1183
Keywords:
abuse of power; case law; decision; discretion; disregard of essential fact; extension of contract; flaw; formal flaw; judicial review; mistake of fact; mistaken conclusion; misuse of authority; probationary period; procedural flaw; refusal;
Judgment 1238
74th Session, 1993
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
The Tribunal ordered the complainant's reinstatement in Judgment 999. But the Director-General decided that reinstatement was not in the interest of the organization and awarded him compensation. "To condemn someone to unemployment on account of a single negligent act unaccompanied by improper intention, and in circumstances that do not justify loss of confidence by the employer, is to demand a humanly impossible standard of performance by the employee and makes the right to reinstatement illusory."
Reference(s)
ILOAT Judgment(s): 999
Keywords:
complainant; discretion; good faith; limits; negligence; organisation; organisation's interest; proportionality; refusal; reinstatement; right; termination of employment;
Consideration 5
Extract:
"In the circumstances the refusal of reinstatement is not justified, and the fact that dismissal occurred over five years ago does not stand in the way of reinstatement, especially since the complainant was not responsible for any of the delay. He is accordingly entitled to reinstatement."
Keywords:
date; discretion; limits; mistake of fact; organisation's interest; refusal; reinstatement; right; termination of employment;
Consideration 4
Extract:
"Even if the Director-General has discretion to refuse reinstatement 'in the interest of the organization' he must exercise it fairly and reasonably after considering all the material facts. Here the facts were that the complainant had throughout had irreproachable appraisal reports. [...] Despite surveillance, without his knowledge, for six months prior to [the incident that led to his dismissal] no wrongdoing, negligence or irregularity on his part was discovered. [...] The Director-General has failed to take into consideration the above material facts and has erred in treating the complainant as guilty of a 'cover-up'. The refusal of reinstatement was thus not a proper exercise of whatever discretion he had in the matter."
Keywords:
complainant; discretion; disregard of essential fact; flaw; limits; mistake of fact; negligence; organisation; organisation's interest; performance report; refusal; reinstatement; right; termination of employment;
Judgment 1235
74th Session, 1993
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
"Although the Director-General is not of course bound to appoint the candidate the Committee puts first and has discretion in making the choice, the reasons for his decision must be stated so that the Tribunal may properly exercise its power of review."
Keywords:
appointment; candidate; competition; discretion; duty to substantiate decision; judicial review; limits; organisation's duties; promotion board; purpose;
Judgment 1234
74th Session, 1993
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 19
Extract:
The complainant, an official at grade D.2, was moved twice in 18 months but given no explanation for the moves. His second transfer was to a post at a lower grade, some distance from headquarters and in a field he had never worked in. "Although the Director-General will ordinarily be treated as the best judge of what the organization's interests are and the Tribunal will not ordinarily interfere in his assessment of them, nevertheless it will do so in this case. It is quite inadequate to plead that the decision to transfer the complainant was 'in the interests of the organization'. The basis for reaching that conclusion must be made clear so that the Tribunal may exercise its power of review and determine whether there exists any of the grounds for setting aside a discretionary decision of that kind."
Keywords:
discretion; downgrading; duty to substantiate decision; grade; judicial review; limits; organisation's duties; organisation's interest; post; transfer;
Judgment 1230
74th Session, 1993
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
The Agency granted the complainant only a short contract renewal, refusing to renew the contract until the date of his retirement. According to the defendant, this decision was based on information in its files which indicated that the complainant wasn't available after a certain date. Now it has been established that the complainant said he would be available as long as the Agency wished. "A decision by an international organization to grant only a short extension of appointment or none at all, though it is discretionary, must still be based on correct findings of fact."
Keywords:
contract; discretion; fixed-term; judicial review; mistake of fact; mistaken conclusion; non-renewal of contract; organisation;
Judgment 1226
74th Session, 1993
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 3, 7 and 8
Extract:
The complainants challenge decisions by the Director-General confirming the abolition of free after-service medical cover. They allege breach of acquired rights and contend that the FAO's financial position did not warrant such measures. "The Tribunal will not compare the options open to the FAO in the area of financial policy since it might ignore the realities that the FAO has to take into account. All the Tribunal need do is acknowledge that it was because of the financial plight of the scheme and its own that the organization decided to do away with free coverage for pensioners. The change does cause the complainants detriment. [...] But that alone does not amount to breach of any acquired right. First, the effect of the change was to put all fao pensioners on a par. [...] Secondly, there were transitional measures to lighten the impact of the change [...]. Since the change was made by way of rules, and because of the reasons for it, the complainants have suffered no breach of any acquired right despite the injury to their interests."
Keywords:
acquired right; amendment to the rules; budgetary reasons; discretion; grounds; health insurance; insurance; judicial review; limits; medical expenses; organisation's interest; social benefits; staff regulations and rules;
Judgment 1223
74th Session, 1993
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 20
Extract:
"True, a staff member may not assert any right to promotion and the choice of the successful applicant is at the discretion of the administration, which alone may appraise the organisation's interests. Yet the exercise of discretion is subject to restrictions in law and the Tribunal will to that extent review the decision: see for example Judgment 1016 [...]. So the staff member has undeniably the right to file an internal appeal or a complaint with the Tribunal if he believes that the appointment to a vacancy he has applied for is improper."
Reference(s)
ILOAT Judgment(s): 1016
Keywords:
appointment; candidate; case law; cause of action; competition; complaint; discretion; internal candidate; judicial review; limits; organisation's interest; promotion; receivability of the complaint; refusal; right; vacancy notice;
Consideration 30
Extract:
The complainant, a Eurocontrol official, challenges the rejection of his application to a post of head of division and the appointment of an external candidate to that post. He alleges that the recruitment procedure was unlawful. "The Tribunal will not interfere in drafting a notice of vacancy or comparing candidates who respond to the notice. But for Eurocontrol to open a competition for serving officials and then change the terms of recruitment sub rosa so as to deny them any real chance of success was in breach of the duty of trust and fairness the organisation owes its staff."
Reference(s)
ILOAT Judgment(s): 1016
Keywords:
appointment; candidate; competition; discretion; due process; equal treatment; good faith; judicial review; organisation's duties; vacancy notice;
Judgment 1221
74th Session, 1993
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
The complainant seeks the redefinition of her duties and, subsidiarily, transfer or secondment. "The administration never forced the complainant to perform duties other than those in the description of her post. It is bound neither to amend the duties of staff to suit their own wishes nor [...] to grant their applications for transfer, provided that its decisions are not prompted by considerations irrelevant to its own interests."
Keywords:
amendment to the rules; assignment; discretion; organisation's duties; organisation's interest; post; post description; request by a party; request for transfer; secondment;
Judgment 1217
74th Session, 1993
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 14
Extract:
The complainant objects to CERN's refusal to change his home from that of which he is a citizen to another country. "The original determination of the home station on recruitment and any later change are incontrovertibly at the discretion of CERN, which has to give weight to the various criteria the Staff Regulations set. For the sake of sound management [...] the organization may set guidelines on the matter. So there can be no objection to its consistent policy of determining the staff member's home, barring evidence to the contrary, in his own country and allowing later change to some other country only where some change in circumstances so warrants."
Keywords:
amendment to the rules; criteria; decision; discretion; home; home leave; judicial review; nationality; organisation's interest; place of origin; refusal;
Judgment 1204
74th Session, 1993
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 4-5
Extract:
The complainants object to a decision denying them so-called "out-of-career" promotions. They submit that the original decisions were taken for an unlawful reason of principle and that the organization later confirmed the decisions on quite different grounds. The organization says it merely exercised the discretion inherent in managerial prerogative and did not alter the original reasons but merely added to them. "Although the competent authority has discretion to grant or refuse the promotion of staff who qualify under the material rules, it must abide by the rules, and whatever decisions it takes will be subject to judicial review [...] so as to determine whether they pass muster the rules have to be known to everyone and an organisation may not go beyond the duly published texts and resort to secret provisions that change the thrust of the ones it intended to treat as binding. Before it takes its discretionary decision, it must compare the merits of all staff who qualify under the rules [...] CERN committed two mistakes of law. One was to apply to the complainants rules that had never been published and that it regarded as binding. The other was to defend its position ex post facto by saying that its reasons for rejecting the complainants' claims were connected with their performance, though there is no evidence of any comparative and analytical assessment of the kind that international officials are entitled to."
Keywords:
applicable law; discretion; duty to substantiate decision; equal treatment; judicial review; organisation's duties; patere legem; promotion; publication; refusal;
Judgment 1199
73rd Session, 1992
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
The complainants plead breach of their acquired rights concerning pay. "In this case the changes were made because of shifts in economic trends and tax rules in the United States [...] The competent authorities [...] decided in the exercise of their discretion to keep the link with the civil service of the member State - the United States - that is customarily the 'comparator' in determining pay in the international civil service. Their solution is not intrinsically unlawful."
Reference(s)
ILOAT Judgment(s): 832
Keywords:
acquired right; amendment to the rules; discretion; domestic law; general principle; noblemaire principle; reckoning; salary; scale;
Judgment 1185
73rd Session, 1992
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
"According to consistent precedent a decision to grant an appointment, even though it is a matter of discretion, may be set aside, and one flaw that will be fatal is that it was taken without authority."
Keywords:
case law; decision; decision-maker; discretion; judicial review;
Judgment 1184
73rd Session, 1992
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
Vide Judgment 1185, consideration 2.
Reference(s)
ILOAT Judgment(s): 1185
Keywords:
decision; decision-maker; discretion; judicial review;
Judgment 1183
73rd Session, 1992
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"The purpose of probation is to find out whether a probationer has the mettle to make a satisfactory career in the organization. The competent authority will determine [...] whether or not to confirm the appointment and must be allowed the utmost measure of discretion in deciding whether someone [...] shows, not just the professional qualifications, but also the personal attributes for the particular post in which he is to be working. Only where the Tribunal finds the most serious or glaring flaw in the exercise of the Director-General's discretion will it interfere."
Keywords:
career; discretion; flaw; judicial review; post; probationary period; purpose; qualifications;
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