Discretion (547, 548, 549, 550, 551,-666)
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Keywords: Discretion
Total judgments found: 609
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Judgment 4391
131st Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to promote him in the 2008 promotion exercise.
Consideration 10
Extract:
Given the inaccuracy in the reasons given for not promoting the complainant, which also means that the discretion was exercised in an arbitrary manner, the […] impugned decision is flawed and will be set aside (see, for example, Judgment 3647, under 14).
Reference(s)
ILOAT Judgment(s): 3647
Keywords:
decision quashed; discretion; mistake of fact; motivation; motivation of final decision;
Consideration 4
Extract:
The Tribunal’s role in cases which challenge a non-promotion decision is a limited one. Staff members of an international organization do not have an automatic right to promotion. It is established that an organization has a wide discretion in deciding whether to promote a staff member. 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. 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. 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 4066, under 3).
Reference(s)
ILOAT Judgment(s): 4066
Keywords:
discretion; promotion;
Judgment 4389
131st Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to reimburse in full the costs he incurred in the internal appeal proceedings.
Consideration 8
Extract:
It is well settled in the case law that the Tribunal will only set aside a discretionary decision if it was taken without authority, or if it was tainted with a procedural or formal flaw or based on a mistake of fact or of law, or if essential facts were overlooked, or if there was abuse of authority, or if clearly mistaken conclusions were drawn from the evidence (see, for example, Judgments 1969, consideration 7, 2896, consideration 7, and 3317, consideration 5). Thus, to successfully impugn a discretionary decision, a complainant must demonstrate a fundamental flaw in the decision-making process.
Reference(s)
ILOAT Judgment(s): 1969, 2896, 3317
Keywords:
discretion;
Judgment 4370
131st Session, 2021
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to retire him at the end of the month in which he reached the age of 62, even though he had not completed the five years of contributions required for the payment of a retirement pension by the United Nations Joint Staff Pension Fund.
Consideration 8
Extract:
[I]t should be borne in mind that the Tribunal has consistently held that a decision to retain an official beyond the normal retirement age is an exceptional measure over which the executive head of the organisation exercises wide discretion and which is subject to only limited review by the Tribunal (see, for example, Judgment 3884, consideration 2).
Reference(s)
ILOAT Judgment(s): 3884
Keywords:
discretion; executive head; extension beyond retirement age;
Judgment 4368
131st Session, 2021
International Olive Council
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the cancellation of a competition procedure in which she participated.
Consideration 4
Extract:
[T]he executive head of an international organisation may cancel a competition in the interests of the service with a view, in particular, to holding a new competition on different terms if need be (see, for example, Judgments 791, consideration 4, 1223, consideration 31, 1771, consideration 4(e), 1982, consideration 5(a), 2075, consideration 3, 3647, consideration 9, 3920, consideration 18, 4216, consideration 3, or 4283, consideration 2).
However, such a decision can never be arbitrary. The Tribunal must therefore ascertain whether the condition relating to the interests of the organisation required under the case law in question is actually met and whether the cancellation of the initial process is based on a legitimate reason (see, in particular, Judgments 3647, consideration 9, and 3920, consideration 18, cited above).
Reference(s)
ILOAT Judgment(s): 791, 1223, 1771, 1982, 2075, 3647, 3920, 4216, 4383
Keywords:
competition; discretion;
Judgment 4363
131st Session, 2021
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who states that he was the victim of retaliation, claims redress for the injury he considers he has suffered.
Consideration 10
Extract:
It is convenient to recall that in Judgment 3948, consideration 2, where a decision not to renew a contract was challenged, the Tribunal stated that its scope of review is limited as an organization enjoys wide discretion in deciding whether or not to extend a fixed-term appointment and that the exercise of such discretion is subject to limited review because the Tribunal respects an organization’s freedom to determine its own requirements and the career prospects of staff. Accordingly, the Tribunal will not substitute its own assessment for that of the organization and a decision in the exercise of this discretion may only be quashed or set aside for unlawfulness or illegality in the sense that it was taken in breach of a rule of form or procedure; or if it is based on an error of fact or of law, if some essential fact was overlooked; or if there was an abuse or misuse of authority; or if clearly mistaken conclusions were drawn from the evidence.
Reference(s)
ILOAT Judgment(s): 3948
Keywords:
discretion; fixed-term; non-renewal of contract;
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 18
Extract:
The fact that some staff were unhappy with the choice does not mean that the change was unlawful and that the previous rules could not be changed. The Tribunal recognizes that it is not always possible to cater to the needs of each individual employee, as the product or result of the work being done is often justifiably considered a higher priority over the individual’s personal interests (see Judgment 2587, under 10). The basic idea underlying the complaints, that the only possible choice was the most favorable for the staff, is wrong as it denies the President’s discretion.
Reference(s)
ILOAT Judgment(s): 2587
Keywords:
discretion;
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 4314
130th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of her request for the reclassification of her post.
Consideration 6
Extract:
Consistent precedent has it that the process of classifying posts in international organisations constitutes an act of technical evaluation, and, accordingly, it is not for the Tribunal to weigh, compare and/or determine the relative merits of ratings which are thereby accorded. The Tribunal has consistently stated, for example in Judgment 3589, consideration 4, 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, had been made in breach of the rules of form or procedure, was based on an error of fact or law, was made having overlooked an essential fact, was tainted with abuse of authority or if a truly mistaken conclusion had been drawn from the facts. This is because 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. The grading of posts is a matter within the discretion of the executive head of the organisation, or the person acting on her or his behalf (see also Judgments 4024, consideration 3, 4164, consideration 4, 4186, consideration 6, and 4193, consideration 2).
Reference(s)
ILOAT Judgment(s): 3589, 4024, 4164, 4186, 4193
Keywords:
discretion; post classification;
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 4301
130th Session, 2020
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to withdraw a vacancy notice and re-advertise it, and the ad interim appointment of a colleague in the meantime.
Consideration 5
Extract:
A decision concerning the advertising of a position, such as the two decisions presently contested by the complainant, is discretionary and may only be set aside if it was taken in breach of a rule of form or procedure; or if it was based on an error of fact or of law, if some essential fact was overlooked; or if there was an abuse or misuse of authority; or if clearly mistaken conclusions were drawn from the evidence (see, for example, Judgments 3299, under 6, 2861, under 83, and 2850, under 6).
Reference(s)
ILOAT Judgment(s): 2850, 2861, 3299
Keywords:
discretion; vacancy notice;
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 4283
130th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to cancel a competition in which he was a candidate.
Considerations 2-3
Extract:
According to the Tribunal’s settled case law, the executive head of an international organisation may cancel a competition in the interests of the service if, among other reasons, it becomes apparent that the competition will not enable the post concerned to be suitably filled, and the opening of such a procedure does not therefore imply that a candidate will necessarily be appointed to that post (see, for example, Judgments 791, under 4, 1771, under 4(e), 1982, under 5(a), 2075, under 3, 3647, under 9, or 3920, under 18, and 4216, under 3).
According to the same case law, the decision not to fill an advertised post – like any decision to appoint an official in the opposite case where an appointment is made – falls within the discretion of the executive head of the organisation and is therefore be subject to only limited review by the Tribunal (see, in particular, aforementioned Judgment 791, under 4, or aforementioned 1771, under 6). However, it is within the Tribunal’s purview to verify whether that decision was taken in accordance with the rules on competence, form and procedure, whether it involved an error of fact or of law, whether it failed to take account of material facts, whether it drew clearly incorrect conclusions from the evidence or whether it constituted misuse of authority (see, for example, Judgments 1689, under 3, 2060, under 4, 2457, under 6, 3537, under 10, or 3652, under 7, and [...] 4216, under 4).
Reference(s)
ILOAT Judgment(s): 791, 1689, 1771, 1982, 2060, 2075, 2457, 3537, 3647, 3652, 3920, 4216
Keywords:
competition cancelled; discretion;
Judgment 4282
130th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his appointment at the end of his probationary period.
Considerations 2-3
Extract:
It is useful to recall the general principles that govern setting aside a decision to dismiss a staff member of an international organization whose performance during a probationary period is considered inadequate. It was relevantly restated in consideration 4 of Judgment 4212 that the purpose of probation is to permit an organization to assess the probationer’s suitability for a position, and, for that 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. This includes the confirmation of appointment, the extensions of a probationary term, and the identification of its own interests and requirements. Accordingly, it has been consistently stated that a discretionary decision of this nature 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”. In Judgment 4212, the Tribunal also reaffirmed that “where the reason for refusal of confirmation is unsatisfactory performance, [it] will not replace the organisation’s assessment with its own”.
It is also useful to reiterate an international organization’s obligations regarding a staff member’s probation period that are well settled in the case law. For example, in Judgment 4212, consideration 5, the Tribunal stated that such a period 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 where continued employment is in jeopardy. It was also stated in Judgment 3678, consideration 1, that 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): 3678, 4212
Keywords:
discretion; performance evaluation; probationary period;
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;
Consideration 16
Extract:
The actual design of the new career structure (for example, the structure of grades and their number) and the new merit recognition system (for example, the choice of financial incentives and their amount) falls within the Organization’s discretion and, given the Tribunal’s limited power of review in this matter, it is not for the Tribunal to substitute its assessment for that of the Organization (see Judgments 2778, under 7, 3921, under 11, and 4134, under 26 and 49).
Reference(s)
ILOAT Judgment(s): 2778, 3921, 4134
Keywords:
career; discretion;
Judgment 4259
129th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to extend his appointment beyond the statutory retirement age.
Consideration 8
Extract:
The impugned decision correctly states that the President’s decision whether to propose to the Administrative Council a prolongation of service of a member of the Boards of Appeal is an exceptional measure and the decision is subject to only limited review. The Tribunal stated as follows in Judgment 3970, under 2:
“The Tribunal has consistently held that a decision to retain an official beyond the normal retirement age is an exceptional measure over which the executive head of an organisation exercises wide discretion. Such a decision is therefore subject to only limited review by the Tribunal, which will interfere only if the decision was taken without authority, if a rule of form or procedure was breached, if it was based on a mistake of fact or of law, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority [...].”
Reference(s)
ILOAT Judgment(s): 3970
Keywords:
discretion; extension beyond retirement age;
Judgment 4254
129th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to extend his appointment beyond the statutory retirement age.
Consideration 3
Extract:
As the Tribunal has consistently held, a decision to retain an official beyond the normal retirement age is an exceptional measure over which the executive head of an organisation exercises wide discretion. Such a decision is therefore subject to only limited review by the Tribunal, which will interfere only if the decision was taken without authority, if a rule of form or procedure was breached, if it was based on a mistake of fact or of law, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgments 1143, consideration 3, 2845, consideration 5, 3285, consideration 10, 3765, consideration 2, or 3884, consideration 2).
Reference(s)
ILOAT Judgment(s): 1143, 2845, 3285, 3765, 3884
Keywords:
age limit; discretion; retirement age;
Judgment 4252
129th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former official of the ILO, challenges the decision not to award him a personal promotion in the 2011 exercise.
Consideration 4
Extract:
Under the Tribunal’s case law, an organisation enjoys wide discretion with regard to staff promotion. For this reason, such decisions are subject to only limited review. However, the Tribunal must ascertain whether 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 Judgments 2835, consideration 5, 3279, consideration 11, and 4066, consideration 3).
Reference(s)
ILOAT Judgment(s): 2835, 3279, 4066
Keywords:
discretion; personal promotion;
Judgment 4240
129th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reassign her to the post of Senior Advisor on Innovative Strategic Information, Strategic Information and Evaluation Department.
Consideration 5
Extract:
Regarding the applicable principles, the Tribunal has recognized the wide discretion of an executive head of an international organization, in the interest of the organization, to reassign staff members. The Tribunal has therefore stated that it may interfere with a decision to reassign a staff member only on the limited grounds that the decision was taken ultra vires or shows a formal or procedural flaw or mistake of fact or law, if some material fact was overlooked, if there was misuse of authority or an obviously wrong inference was drawn from the evidence. The Tribunal will therefore be circumspect in reviewing a reassignment or transfer. The Tribunal has recognized that reassignment may be influenced by the need to eliminate tensions that compromise the functioning of a unit. It has however reiterated that the organization must show due regard, in both form and substance, for the dignity of the official concerned, particularly by providing her or him with work of the same level of responsibilities as she or he performed in the previous post and matching her or his qualifications. The Tribunal has further stated that the responsibilities that attach to posts are comparable where on an objective basis the level of the duties to be performed is similar, and that the exercise to reclassify a post or to redefine the duties attaching thereto 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. 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, Judgments 4086, considerations 10 and 11, and 3488, consideration 3).
Reference(s)
ILOAT Judgment(s): 3488, 4086
Keywords:
discretion; reassignment;
Judgment 4231
129th Session, 2020
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to extend his fixed-term appointment and to place him on special leave with pay until his contract expired.
Consideration 3
Extract:
The Tribunal’s case law states that an organisation enjoys wide discretion in deciding whether or not to renew a fixed-term appointment. The exercise of such discretion is subject to only limited review as the Tribunal respects the organisation’s freedom to determine its own requirements and the career prospects of staff. However, the discretion is not unfettered and the Tribunal will set the decision aside if it was taken without authority or in breach of a rule of form or of procedure, or if it rested on an error of fact or of law, or if some essential fact was overlooked, or if there was abuse of authority, or if clearly mistaken conclusions were drawn from the evidence (see, for example, Judgments 4062, consideration 6, and 4146, consideration 3).
Reference(s)
ILOAT Judgment(s): 4062, 4146
Keywords:
discretion; fixed-term; non-renewal of contract;
Judgment 4221
129th Session, 2020
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of her request for reclassification of her post.
Consideration 11
Extract:
The basic guiding principles in the Tribunal’s case law concerning classification of posts were stated as follows, for example, in Judgment 4000, considerations 7, 8 and 9:
“7. In Judgment 3589, in which the reclassification of a post was also challenged, the Tribunal stated the following, in consideration 4:
‘It is well established 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, had been made in breach of the rules of form or procedure, was based on an error of fact or law, was made having overlooked an essential fact, was tainted with abuse of authority or if a truly mistaken conclusion had been drawn from the facts (see, for example, Judgments 1647, consideration 7, and 1067, consideration 2). This is because 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 the organisation (or the person acting on her or his behalf) (see, for example, Judgment 3082, consideration 20).’
8. As to the main factors that are to be taken into account in a reclassification process, the Tribunal has relevantly stated as follows, in Judgment 3764, consideration 6:
‘It is for the competent body and, ultimately, the Director-General to determine each staff member’s grade. Several criteria are used in this exercise. Thus, when a staff member’s duties attach to various grades, only the main ones are taken into account. Moreover, the classification body does not rely solely on the text of the Staff Regulations and Staff Rules and the job description but also considers the abilities and degree of responsibility required by each. In all cases grading a post requires detailed knowledge of the conditions in which the incumbent works.’
9. The classification of a post involves an evaluation of the nature and extent of the duties and responsibilities of the post based upon the job description. It is not concerned with the merits of the performance of the incumbent (see, for example, Judgment 591, under 2).
[...].”
Reference(s)
ILOAT Judgment(s): 591, 1067, 1647, 3082, 3294, 3589, 3764, 4000
Keywords:
discretion; post classification;
Judgment 4220
129th Session, 2020
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the rejection of their requests for an agreed separation.
Consideration 11
Extract:
[T]here is no element which leads the Tribunal to question this organizational evaluation of what is in the best interest of the Organization which is within the knowledge and the competence of the executive head (see, for example, Judgments 3858, consideration 12, and 2377, consideration 5).
Reference(s)
ILOAT Judgment(s): 2377, 3858
Keywords:
discretion; organisation's interest;
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