Flaw (557, 558, 862, 559,-666)
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Keywords: Flaw
Total judgments found: 244
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Judgment 1370
77th Session, 1994
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 14
Extract:
"Judgment 1317 [...] brought out the need for a properly functioning internal appeal procedure, of which the Appeal Board is an essential part. In this case the Board took far too long to report and failed to perform its function properly. Although in the circumstances the shortcomings of the appeal procedure may not be deemed to constitute bad faith, the ITU was negligent and caused the complainant injury. On that account it must afford him redress."
Reference(s)
ILOAT Judgment(s): 1317
Keywords:
case law; compensation; delay; flaw; good faith; injury; internal appeal; internal appeals body; moral injury; negligence; organisation's duties; procedure before the tribunal; report; staff member's interest;
Judgment 1368
77th Session, 1994
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"The plea of breach of acquired rights is receivable and in ruling on it the Tribunal may take into account any issues of fact it deems material." Citing Judgment 986 [...], the Tribunal holds that "an employee may properly plead a decline in his situation tantamount to impairment of the essential and fundamental terms of his employment, even if the decline has been gradual and due to an accumulation of decisions which are no longer open to challenge and none of which, taken singly, would have been declared unlawful."
Reference(s)
ILOAT Judgment(s): 986
Keywords:
acquired right; amendment to the rules; breach; case law; cumulative decisions; flaw; judicial review; receivability of the complaint; terms of appointment;
Judgment 1365
77th Session, 1994
World Tourism Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
The organization submits that there was no point in resuming the process of appointment as ordered in Judgment 1272. "But there the organization shows misunderstanding about the effect of a judgment. The quashing of [Mr. X's] appointment [...] being res judicata, it had a duty under the judgment to resume the process from the date of the unlawful appointment, regardless of the new situation arising from the expiry of [Mr. X's] appointment and his assignment to [another] post [...]. The complainants are therefore right in contending that the organization was at fault in refusing to carry out the process properly."
Reference(s)
ILOAT Judgment(s): 1272
Keywords:
application for execution; breach; consequence; execution of judgment; flaw; judgment of the tribunal; material damages; organisation's duties; procedure before the tribunal; res judicata;
Consideration 9
Extract:
The complainants seek the quashing of a decision in which the WTO refused to resume the appointment process as ordered in Judgment 1272. "Yet any satisfaction that the complainants might derive from resumption of the procedure would be merely formal [so] the Tribunal exercises the option that Article VIII of its Statute allows of not setting aside the [impugned] decisions."
Reference(s)
ILOAT reference: ARTICLE VIII OF THE STATUTE
ILOAT Judgment(s): 1272
Keywords:
application for execution; breach; consequence; damages; execution of judgment; flaw; judgment of the tribunal; organisation's duties; procedure before the tribunal; res judicata;
Judgment 1355
77th Session, 1994
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"Any promotion wholly or even mainly based on considerations of sex would unquestionably be unlawful."
Keywords:
candidate; discretion; flaw; judicial review; promotion; sex discrimination;
Judgment 1352
77th Session, 1994
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 12
Extract:
"In the case of dismissal of a probationer the employer is to be allowed the widest discretion and the decision will be quashed only if the mistake or the illegality is especially serious or glaring: see, for example, Judgment 687 [...], under 2."
Reference(s)
ILOAT Judgment(s): 687
Keywords:
case law; discretion; flaw; judicial review; limits; probationary period; termination of employment;
Judgment 1328
76th Session, 1994
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"The Tribunal's rulings carry the authority of res judicata, save that in accordance with Article XII(1) of its Statute and the Annex thereto their validity may be challenged on referral by an organisation that has recognised its jurisdiction to the International Court of Justice on the grounds of lack of competence or a fundamental fault in the procedure followed."
Reference(s)
ILOAT reference: ARTICLE XII(1) OF THE STATUTE
Keywords:
advisory opinion of icj; application for execution; competence of tribunal; flaw; icj; iloat statute; judgment of the tribunal; procedure before the tribunal; res judicata;
Judgment 1321
76th Session, 1994
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"As the Tribunal has said more than once, a staff member may not rely upon an unlawful act or a benefit granted ex gratia to other staff in support of his own claim."
Keywords:
case law; equal treatment; flaw; practice;
Judgment 1317
76th Session, 1994
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 24
Extract:
Several recent rulings [...] sharply define the ambit of such review in line with the case law affirmed from the outset: see Judgments 956 [...] under 2 and 3; 1262 [...] under 4; and 1273 [...] under 8.
Reference(s)
ILOAT Judgment(s): 956, 1262, 1273
Keywords:
abuse of power; case law; contract; decision; discretion; due process; duty to substantiate decision; fixed-term; flaw; formal flaw; judicial review; mistake of fact; misuse of authority; non-renewal of contract; notice; organisation's interest; procedural flaw; right to reply;
Judgment 1315
76th Session, 1994
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
The Tribunal quashes the results of a competition because the appointment procedure was tainted with bias. This entails the quashing of the appointment of an external candidate. "The Tribunal expects that the President will take such measures as will ensure that [the external candidate], who accepted the [appointment] in good faith, suffers no material injury."
Keywords:
abuse of power; appointment; bias; competition; competition cancelled; flaw; good faith; misuse of authority; open competition; organisation's duties;
Judgment 1306
76th Session, 1994
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"When a decision is quashed, it is deemed never to have been taken. The Administration must do whatever the correction of the position in law may require and by due process take a new decision that is free from the fatal flaws in the quashed one and that gives effect to the Tribunal's ruling in the light of the reasoning that underlies it."
Keywords:
application for interpretation; due process; effect; flaw; judgment of the tribunal; organisation's duties;
Consideration 7
Extract:
The complainant is challenging the UPU's interpretation and execution of Judgment 1235 in which the Tribunal quashed the Director-General's decision confirming his refusal to appoint him to a specific post and offering him compensation for moral injury. "The award of moral damages affords him redress for the injury the Union's unlawful act caused him up to the date of Judgment 1235; it does not relieve the Union of remedying that unlawful act by reviewing the matter of his rights, and this time doing it properly."
Reference(s)
ILOAT Judgment(s): 1235
Keywords:
application for interpretation; execution of judgment; flaw; injury; judgment of the tribunal; moral injury; organisation's duties; purpose;
Judgment 1292
75th Session, 1993
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"When the Director-General asks the Swiss government to confer diplomatic status, he is exercising his discretion. [...] So the Tribunal will not interfere with his decision unless he has committed some procedural or formal error or a mistake of law or of fact, or applied some wrong principle, or drawn illogical conclusions from the evidence before him."
Keywords:
discretion; executive head; flaw; judicial review; mistake of fact; mistaken conclusion; privileges and immunities; procedural flaw; status of complainant;
Judgment 1284
75th Session, 1993
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"Precedent has it [...] that the Tribunal may not replace the Board's assessment of medical questions with its own. But it goes further than that: the Tribunal does have full competence to say whether there was due process and whether the medical findings show any material mistake or inconsistency, or overlook some essential fact, or plainly misread the evidence."
Keywords:
case law; discretion; disregard of essential fact; flaw; judicial review; limits; medical board; medical opinion; mistaken conclusion; procedural flaw; procedure before the tribunal; report;
Judgment 1281
75th Session, 1993
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
"According to the case law the grading of posts is a matter within the discretion of the executive head of an international organisation. So the Tribunal will not interfere with the decision impugned in this case 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. Moreover, the Tribunal will not substitute its own assessment of the facts for the Secretary-General's."
Keywords:
abuse of power; case law; competence; decision-maker; discretion; disregard of essential fact; executive head; flaw; formal flaw; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; post classification; procedural flaw;
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;
Judgment 1251
74th Session, 1993
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
The complainant was accused of misappropriating funds and summarily dismissed for misconduct. The Tribunal holds that though the Appeals Board "recorded in its report the organization's submissions on the facts, it did not come to any conclusion on them and indeed said it was 'extremely difficult to impute the misfeasances committed to the complainant'. The Director-General's decision is thus flawed with the wrong assumption that the Board had made findings adverse to the complainant."
Keywords:
decision; disciplinary measure; flaw; internal appeals body; judicial review; mistake of fact; mistaken conclusion; 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
Consideration 20
Extract:
Had the complainant "made a bona fide challenge to the validity of transfer, that would have been a satisfactory explanation for non-compliance: for a precedent, see Judgment 392 [...], under 6. For family reasons the organization refrained for five months [...] from taking action on the decision to transfer the complainant. Thereafter he did not challenge the transfer but sought to circumvent or delay it by raising a series of questions and by evading a direct response."
Reference(s)
ILOAT Judgment(s): 392
Keywords:
case law; complainant; decision; flaw; good faith; refusal; staff member's interest; transfer;
Judgment 1246
74th Session, 1993
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 14-15
Extract:
"The purpose of Article 6.7.3 of the Staff Regulations is that the lapse of time between first and second reports should be long enough - the period prescribed is nine months - to give the probationer a proper opportunity of showing his mettle before the second report has to be made. The period of less than three months that the complainant was allowed was far too short to allow of any substantial improvement. [...] The procedural flaw caused the complainant injury."
Keywords:
cause of action; date; delay; due process; flaw; performance report; probationary period; procedural flaw; qualifications; staff regulations and rules;
Consideration 15
Extract:
"The procedural flaw caused the complainant injury. As to the relief she is entitled to on that account, the Tribunal holds that it is not advisable to grant her the redress that would ordinarily be the consequence of quashing the impugned decision, namely reinstatement. The Tribunal therefore exercises the discretion vested in it by Article VIII of its Statute and instead awards the complainant damages for the breach of procedure. It sets the amount at the equivalent of one year's salary and allowances."
Reference(s)
ILOAT reference: ARTICLE VIII OF THE STATUTE
Keywords:
allowance; compensation; decision; due process; flaw; iloat statute; material damages; procedural flaw; reinstatement; right; salary; tribunal;
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 5
Extract:
The Tribunal orders the complainant's reinstatement. The organization "must do its utmost to reinstate him in the post which he held [...] or in any comparable one acceptable to him. Only if that proved impossible should it pay him additional damages equivalent to the salary, allowances and other entitlements which he would have received over a period of two years had he been reinstated in its employ as from the date of this judgment."
Keywords:
allowance; compensation; date; flaw; judgment of the tribunal; post; post held by the complainant; reinstatement; salary; termination of employment;
Consideration 4
Extract:
"An employee who is wrongfully dismissed is ordinarily entitled to reinstatement. But the Tribunal may refuse to order it if it is not possible or advisable. It would not, for instance, order reinstatement if the circumstances of the dismissal were such that it would no longer be reasonably possible for the employee to perform his duties effectively or harmoniously or for the employer to continue to feel confidence or trust in him."
Keywords:
flaw; organisation's interest; reinstatement; termination of employment; tribunal; working relations;
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 1200
73rd Session, 1992
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
The complainants dispute the amendment of a provision concerning pensionable remuneration in the Staff Regulations of the International Training Centre of the ILO at Turin. They allege that the impugned decision is unlawful because it was in breach of the duty to consult the Staff Relations Committee under Articles 0.3 and 10.2(a) of the Staff Regulations. The Tribunal observes that the principle embodied in these provisions is plain: cooperation between staff and management. The sequence of events shows that the organisation did not follow the prescribed procedure. The Tribunal holds that when the Centre wishes to amend its Staff Regulations "it is making a decision of its own and must abide by the rules of its own making. [...] its failure [to do so] in this instance was unlawful and has the effect of avoiding the new text of [the provision]. [...] Since the individual decisions under challenge rest on an improperly made amendment to the Staff Regulations they are unlawful."
Reference(s)
Organization rules reference: ARTICLES 0.3 AND 10.2 (A) OF THE ITC STAFF REGULATIONS
Keywords:
advisory body; amendment to the rules; consultation; due process; flaw; general principle; judicial review; patere legem; procedural flaw; procedure before the tribunal; staff regulations and rules;
Judgment 1199
73rd Session, 1992
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
A "point on which the Organisation is mistaken is that the Tribunal may and will entertain pleas of flaws in the decision-making process of the ILO which may entail examining the decision-making process in the United Nations."
Keywords:
competence of tribunal; coordinated organisations; flaw; judicial review; organisation's duties; rule of another organisation;
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