Discretion (547, 548, 549, 550, 551,-666)
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Keywords: Discretion
Total judgments found: 609
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Judgment 3223
115th Session, 2013
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns a decision on which the Tribunal already ruled in Judgment 2881 and which is res judicata.
Consideration 6
Extract:
"[T]he Tribunal considers that, by virtue of the adversarial principle, an employer organisation may not raise an objection to an internal appeal filed by a staff member unless that person is able to express his or her views on the merits of the objection. As the [organisation] points out, Staff Rule 11.1.1, paragraph 4, makes no provision for a staff member to file a rejoinder with the Appeal Board; however, nor does it rule out this possibility, and it does not therefore preclude the submission of a rejoinder by the person concerned in accordance with the requirements of the adversarial principle. [...]
The internal appeal proceedings were [thus] tainted with a flaw which, contrary to the [organisation]’s submissions, cannot be redressed in proceedings before the Tribunal. In the particular circumstances of the case, the Tribunal will not, however, set aside the impugned decision, but it will grant the complainant compensation in the amount of 1,000 euros for the moral injury caused by this flaw."
Reference(s)
Organization rules reference: Paragraph 4 of ITU Staff Rule 11.1.1
Keywords:
adversarial proceedings; allowance; breach; compensation; discretion; general principle; iloat; internal appeal; internal appeals body; moral injury; no provision; organisation's duties; procedural flaw; procedure before the tribunal; refusal; rejoinder; reply; request by a party; res judicata; right; right to reply; staff regulations and rules;
Judgment 3214
115th Session, 2013
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant unsuccessfully impugns the decision not to extend his appointment beyond retirement age.
Consideration 22
Extract:
The complainant, who requested the extension of his appointment beyond normal retirement age, claims that he was not informed of the names of the members of the Selection Committee.
"In the instant case, while the Organisation does not dispute the fact that it did not advise the complainant of the names of the Committee members, he does not say that he asked for this information, although he had every opportunity to do so during the proceedings, in particular when he received the invitation to his interview with that body. Since he did not seek to assert that right, he may not submit that the [Organisation], which was not obliged to supply him with the information in question of its own accord, denied him the possibility of exercising it."
Keywords:
age limit; composition of the internal appeals body; discretion; extension beyond retirement age; request by a party; retirement; right; selection board;
Consideration 13
Extract:
"[A] provision [...], which grants the executive head of an organisation the power to propose that another organ adopt a decision, authorises that person to refrain from making such a proposal if he or she sees no reason for it (see Judgment 585, under 5)."
Reference(s)
ILOAT Judgment(s): 585
Keywords:
decision; discretion; executive head; proposal; staff regulations and rules;
Consideration 24
Extract:
The complainant, who requested the extension of his appointment beyond normal retirement age, takes the Organisation to task for not sending him the Selection Committee’s opinion or the minutes of its deliberations showing its proposal.
"The Tribunal’s case law has it that, as a general rule, a staff member must have access to all evidence on which the competent authority bases its decisions concerning him or her, especially the opinion issued by such an advisory organ. A document of that nature may be withheld on grounds of confidentiality from a third person but not from the person concerned (see, for example, Judgments 2229, under 3(b), or 2700, under 6).
[T]he Tribunal observes that the complainant does not say that he asked for the document in question. While the Organisation could not lawfully have refused to grant such a request, it was under no obligation to forward the document of its own accord (see Judgment 2944, under 42). The position would have been different only if – as is not the case here – the reasons given by the competent authority for its decision had been confined to a mere reference to the advisory body’s opinion."
Reference(s)
ILOAT Judgment(s): 2229, 2700, 2944
Keywords:
advisory body; advisory opinion; age limit; communication to third party; confidential evidence; decision; disclosure of evidence; discretion; duty to inform; exception; extension beyond retirement age; general principle; grounds; official; organisation's duties; proposal; refusal; request by a party; retirement; right; selection board;
Judgment 3209
115th Session, 2013
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant accuses the ITU of having failed in its duty to ensure transparency in a selection process.
Consideration 11
Extract:
According to the Tribunal’s case law, an appointment by an international organisation is a decision that lies within the discretion of its executive head. Being subject to only limited review, it 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 fact or of law, or if some material fact was overlooked, or if there was abuse of authority, or if a clearly wrong conclusion was drawn from the evidence. Nevertheless, anyone who applies for a post to be filled by some process of selection is entitled to have 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 his hopes of success may be (see, inter alia, Judgment 2163, under 1, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 2163
Keywords:
appointment; competition; discretion; judicial review; selection procedure;
Judgment 3193
114th Session, 2013
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges both the reclassification of a vacant post and the appointment to that post of another staff member.
Consideration 9
Extract:
"In Judgment 2803, under 8, the Tribunal observed that “according to a long line of precedent going back to Judgment 476, in order for there to be misuse of authority it must be established that the decision rested on considerations extraneous to the Organization’s interests”. Additionally, the staff member alleging abuse of authority bears the burden of establishing the improper purpose for which the authority was exercised (see Judgment 2104, under 8). It is also equally well established that the executive head of the organisation will generally be regarded as the best judge of what is in the organisation’s interests and the Tribunal will not normally interfere with that assessment. However, it is not sufficient to claim that a decision was taken in the interests of the organisation. The grounds upon which that conclusion is made must be clear to permit the Tribunal to exercise its power of review."
Reference(s)
ILOAT Judgment(s): 2104, 2803
Keywords:
abuse of power; discretion; duty to substantiate decision; executive head; judicial review; misuse of authority; organisation's interest; purpose;
Judgment 3172
114th Session, 2013
Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the abolition of her post and the decision not to extend her appointment as procedurally flawed.
Consideration 16
Extract:
"A decision taken for an improper purpose is an abuse of authority. It follows that when a complainant challenges a discretionary decision, he or she by necessary implication also challenges the validity of the reasons underpinning that decision. In this respect, the Tribunal may examine the circumstances surrounding the abolition of the post to determine whether the impugned decision was tainted by abuse of authority."
Keywords:
abolition of post; abuse of power; breach; competence of tribunal; decision; discretion; evidence; misuse of authority;
Judgment 3084
112th Session, 2012
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
"The fact that a decision to grant an ad personam promotion lies at the discretion of the Director-General does not preclude appellate review, albeit a limited review of whether the decision involves an error of law or fact or a failure to have regard to a material fact; whether a plainly wrong conclusion was drawn from the facts; whether the decision was taken in breach of a rule of form or procedure or whether there was an abuse of authority (see Judgment 2834, under 7)."
Reference(s)
ILOAT Judgment(s): 2834
Keywords:
abuse of power; breach; discretion; disregard of essential fact; executive head; grounds; judicial review; mistake of law; mistaken conclusion; misuse of authority; personal promotion; staff regulations and rules;
Judgment 3077
112th Session, 2012
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Judgment keywords
Keywords:
competition; complaint dismissed; discretion; selection procedure;
Judgment 3062
112th Session, 2012
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
"It is well established in the Tribunal's case law that assessment of merit is an exercise that involves a value judgement, signifying that persons may quite reasonably hold different views on the matter in issue. Moreover, because of the nature of a value judgement, the grounds on which a decision involving a judgement of that kind may be reviewed are limited to those applicable to discretionary decisions. Thus, the Tribunal will only interfere if 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 Judgment 3006, under 7)."
Reference(s)
ILOAT Judgment(s): 3006
Keywords:
discretion; judicial review; performance report;
Judgment 3043
111th Session, 2011
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 18
Extract:
"[A]d personam promotion constitutes advancement on merit to reward an employee for services of a quality higher than that ordinarily expected of the holder of the post. In the absence of any provision to the contrary, it is an optional and exceptional discretionary measure which is subject to only limited review by the Tribunal (see Judgments 1500, under 4, and 1973, under 5). This kind of promotion should certainly not be granted as redress for an alleged injury, as the complainant requests. The advancement of an official naturally obeys its own logic related to the classification of the job done and the professional merit of the person in question, which has nothing to do with the logic behind compensation for injuries which may have been caused to this person by the international organisation employing him or her (see Judgment 2706, under 8)."
Reference(s)
ILOAT Judgment(s): 1500, 1973, 2706
Keywords:
claim; compensation; compensatory measure; definition; discretion; exception; injury; judicial review; limits; no provision; organisation; personal promotion; post; post classification; purpose; refusal; request by a party; satisfactory service; work appraisal;
Judgment 3034
111th Session, 2011
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 24
Extract:
[W]here an international organisation is required to apply the principle of equal treatment to officials in dissimilar situations, the Tribunal’s case law allows the organisation a broad discretion to determine the extent to which the dissimilarity is relevant to the rules concerned and to define rules taking account of that dissimilarity (see, for example, Judgments 1990, under 7, or 2194, under 6(a)). When a revision of staff regulations takes place, as occurred here, it will inevitably affect various categories of staff differently, depending on their personal or professional characteristics, such as their age or career pattern, and the organisation should naturally not be required to define specific legal rules for each category.
Reference(s)
ILOAT Judgment(s): 1990, 2194
Keywords:
discretion; equal treatment; staff regulations and rules;
Judgment 3016
111th Session, 2011
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
Rejection of the complainant's request for reclassification of her post following a classification exercise.
"The classification of posts involves the exercise of value judgements as to the nature and extent of the duties and responsibilities of the posts. Accordingly, the Tribunal will not substitute its own assessment or direct a new assessment unless certain grounds are established. Consistent precedent has it that 'the Tribunal will not interfere with the decision [...] unless it was taken without authority or shows some procedural or formal flaw or a mistake of fact or of law, or overlooks some material fact, or is an abuse of authority, or draws a clearly mistaken conclusion from the facts' (see Judgment 1281, under 2)."
Reference(s)
ILOAT Judgment(s): 1281
Keywords:
abuse of power; discretion; disregard of essential fact; flaw; formal flaw; grounds; judicial review; mistake of fact; mistaken conclusion; misuse of authority; post; post classification; procedural flaw;
Judgment 3006
111th Session, 2011
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
Assessment of merit is an exercise that involves a value judgement. It is usual to refer to decisions or recommendations involving a value judgement as 'discretionary', signifying that persons may quite reasonably hold different views on the matter in issue and, if the issue involves a comparison with other persons, they may also hold different views on their comparative rating. The nature of a value judgement means that point-to-point comparisons are not necessarily decisive. Moreover, because of the nature of a value judgement, the grounds on which a decision involving a judgement of that kind may be reviewed are limited to those applicable to discretionary decisions. Thus, the Tribunal will only interfere if '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 Judgment 2834, under 7).
Reference(s)
ILOAT Judgment(s): 2834
Keywords:
abuse of power; discretion; disregard of essential fact; flaw; formal flaw; grounds; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; performance report; procedural flaw; promotion; rating; work appraisal;
Judgment 3005
111th Session, 2011
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
Rejection of a request for conversion of a fixed-term appointment to a permanent one.
"In Judgment 1349, under 11, the Tribunal noted the wide discretion an organisation enjoys in relation to the decision to convert a fixed-term appointment to a permanent one. Given the highly discretionary nature of the decision, it is subject to limited review and will only be set aside 'if it is taken without authority or in breach of a rule of form or of procedure, or if it is 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 an abuse of authority' (see Judgment 2694, under 4)."
Reference(s)
ILOAT Judgment(s): 1349, 2694
Keywords:
appointment; contract; decision; discretion; fixed-term; judicial review; permanent appointment;
Judgment 2996
110th Session, 2011
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
On the merits, attention must be drawn to the fact that, while the Tribunal may not replace the medical findings of a body such as an invalidity board with its own assessment, it does have full competence to say whether there was due process and to examine whether the board’s opinion shows any material mistake or inconsistency, overlooks some essential fact or plainly misreads the evidence (see, for example, Judgments 1284, under 4, or 2361, under 9).
Reference(s)
ILOAT Judgment(s): 1284, 2361
Keywords:
discretion; judicial review; medical board; service-incurred;
Judgment 2978
110th Session, 2011
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"[A]ccording to the Tribunal's case law, when the result of a competition is announced and, more broadly when [...] the Administration chooses between candidates, the duty to state the reasons for the choice does not mean that they must be notified at the same time as the decision (see Judgments 1787, under 5, and 2035, under 4). These reasons may be disclosed at a later date, for example in the context of appeal proceedings (see Judgments 1590, under 7, and 2194, under 7)."
Reference(s)
ILOAT Judgment(s): 1590, 1787, 2035, 2194
Keywords:
appointment; candidate; competition; date of notification; decision; discretion; duty to substantiate decision; formal requirements; grounds;
Judgment 2977
110th Session, 2011
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
Non-confirmation of appointment at the end of probation for unsatisfactory performance.
"It is well settled that 'the widest measure of discretion' attends decisions as to the confirmation or otherwise of probationary appointments (see Judgment 1386, under 17). Such decisions are subject to review only on the grounds that 'there was a mistake of fact or law, or a formal or procedural flaw, or if some essential fact was overlooked, or if a clearly mistaken conclusion was drawn from the evidence, or if there was abuse of authority' (see Judgment 1175, under 5)."
Reference(s)
ILOAT Judgment(s): 1175, 1386
Keywords:
discretion; judicial review; performance report; probationary period;
Judgment 2976
110th Session, 2011
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
Grant of an exceptional long-term care benefit for an insured person suffering from complete paralysis below the arms.
"[T]he question whether something should be granted as an 'exceptional' measure is one that invites a value judgement akin to that involved in a discretionary decision. As such, it is subject to only limited review. However, it may be reviewed on the grounds, amongst others, that it involves an error of law and/or that it overlooks some material fact (see, for example, Judgments 1281, under 2, and 2514, under 13)."
Reference(s)
ILOAT Judgment(s): 1281, 2514
Keywords:
discretion; judicial review; medical grounds; medical opinion;
Judgment 2975
110th Session, 2011
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 15
Extract:
"It is well established in the case law that decisions taken in relation to restructuring and the reclassification of posts within an Organization's structure are 'within the discretion of the organisation and may be set aside only on limited grounds [...] for example, if the competent bodies breached procedural rules, or if they acted on some wrong principle, overlooked some material fact or reached a clearly wrong conclusion' (see Judgment 2807, under 5)."
Reference(s)
ILOAT Judgment(s): 2807
Keywords:
discretion; judicial review; post classification; reorganisation;
Judgment 2944
109th Session, 2010
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 50
Extract:
"[A]ccording to firm precedent, as recalled in particular in Judgments 207, 1984 and 2773, the disciplinary authority has a discretion to determine the severity of a disciplinary measure justified by a staff member's misconduct, provided that the measure adopted is not manifestly out of proportion to the offence. It cannot be alleged that termination of the complainant’s appointment, the disciplinary measure chosen, was manifestly out of proportion to the degree of seriousness of the acts listed above, notwithstanding the complainant’s length of service with UNESCO and her recognised professional abilities. The Tribunal therefore considers that, in taking this decision, the Director General did not exceed the limits of his discretionary authority."
Reference(s)
ILOAT Judgment(s): 207, 1984, 2773
Keywords:
case law; condition; disciplinary measure; disciplinary procedure; discretion; misconduct; proportionality; summary dismissal;
Consideration 22
Extract:
"[A]ccording to firm precedent, international civil servants do not have a right to promotion (see, for example, Judgments 1207, under 8, or 2006, under 12) and [...] decisions in this domain, which are taken at the discretion of the executive head of the organisation, are subject to only limited judicial review (see, for example, Judgments 1670, under 14, or 2221, under 9)."
Reference(s)
ILOAT Judgment(s): 1207, 1670, 2006, 2221
Keywords:
case law; decision; discretion; executive head; judicial review; limits; official; promotion; right;
Judgment 2933
109th Session, 2010
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 10-11
Extract:
According to firm precedent, decisions concerning the restructuring of an international organisation’s services, such as a decision to abolish a post, may be taken at the discretion of its executive head and are consequently subject to only limited review. For this reason, while it is incumbent upon the Tribunal to ascertain whether such a decision has been taken in accordance with the rules on competence, form or procedure, whether it rests on a mistake of fact or of law, or whether it constituted abuse of authority, it may not rule on its appropriateness, since it may not supplant an organisation’s view with its own (see, for example, Judgments 1131, under 5, or 2510, under 10).
Nevertheless, there must be objective grounds for any decision to abolish a post (see Judgments 1231, under 26, or 1729, under 11).
Reference(s)
ILOAT Judgment(s): 1131, 1231, 1729, 2510
Keywords:
abolition of post; discretion; limits;
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