Procedural flaw (559,-666)
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Keywords: Procedural flaw
Total judgments found: 145
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Judgment 2916
109th Session, 2010
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 12
Extract:
"[P]erformance appraisal procedures must be 'both transparent and adversarial'. That is unlikely to be the case where the prescribed procedures are not observed."
Reference(s)
ILOAT Judgment(s): 2836
Keywords:
adversarial proceedings; case law; due process; organisation's duties; performance report; procedural flaw; work appraisal;
Judgment 2899
108th Session, 2010
European Free Trade Association
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 23
Extract:
"By [...] basing his decision on an essential document without having given the person concerned an opportunity to refute its content, the competent authority breached the right to be heard which every staff member possesses and his decision was thus tainted by a major procedural flaw (in this connection, see for example Judgments 69, under 2, and 1881, under 18 to 20)."
Reference(s)
ILOAT Judgment(s): 69, 1881
Keywords:
breach; confidential evidence; disclosure of evidence; official; procedural flaw; right to reply;
Consideration 21
Extract:
"[T]he decision of the chief executive officer of an organisation to recover an unduly paid sum of money falls within his or her discretionary authority and is subject to only limited review by the Tribunal, but this decision must nevertheless be censured if it is tainted with a formal or procedural irregularity, or if it was based on a mistake of fact or of law."
Keywords:
decision; discretion; executive head; formal flaw; judicial review; limits; mistake of fact; procedural flaw; recovery of overpayment;
Judgment 2752
105th Session, 2008
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 15
Extract:
"The Tribunal exercises only a limited power of review in the case of warnings or reprimands which are not of a disciplinary nature. As pointed out in Judgments 274 and 403:
'The Tribunal will not interfere unless the measure was taken without authority, or violates a rule of form or procedure, or is based on an error of fact or of law, or if essential facts have not been taken into consideration, or if it is tainted with abuse of authority, or if a clearly mistaken conclusion has been drawn from the facts.'
In Judgment 274 it was also explained that '[a] warning or reprimand must be based on unsatisfactory conduct since what it is saying in effect is that if the conduct is repeated a disciplinary measure may be taken'."
Reference(s)
ILOAT Judgment(s): 274, 403
Keywords:
abuse of power; censure; condition; conduct; disciplinary measure; disregard of essential fact; formal flaw; grounds; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; procedural flaw; reprimand; unsatisfactory service; warning;
Judgment 2751
105th Session, 2008
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"[A] claim may be made and pursued against an organisation if its conduct in proceedings before an internal appeals body or this Tribunal constitutes an abuse of process or a perversion of the right of reply."
Keywords:
abuse of power; conduct; iloat; internal appeals body; misuse of authority; organisation; procedural flaw; procedure before the tribunal; reply; right;
Judgment 2742
105th Session, 2008
World Meteorological Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 41
Extract:
The complainant contests the decision to reassign her to the post of Chief of the Internal Audit Service (IAS) and asks to be reinstated in her former post. "Although the decision to reassign the complainant to the post of Chief of IAS was taken without authority, it does not follow that she should be reinstated in her former post. That post was lawfully abolished [...]. However, she is entitled to substantial damages notwithstanding that her reassignment was to a post at the same grade."
Keywords:
abolition of post; consequence; decision; grade; material damages; post; procedural flaw; reassignment; reinstatement; request by a party;
Judgment 2669
104th Session, 2008
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
The Director-General's authority to extend a staff member's service beyond the retirement age is found in Staff Regulation 301.9.5. "This provision makes it clear that a decision to grant an extension of a staff member's contract is within the discretionary authority of the Director-General. It is well established in the case law that the Tribunal will only intervene in these circumstances if it can be shown that the executive head of the organisation acted without authority, breached a rule of form or procedure, or that the decision was based on a mistake of fact or law, or overlooked an essential fact, or that clearly mistaken conclusions were drawn from the facts."
Reference(s)
Organization rules reference: FAO Staff Regulation 301.9.5
Keywords:
age limit; case law; competence of tribunal; contract; decision; discretion; disregard of essential fact; executive head; extension beyond retirement age; flaw; mistake of fact; mistaken conclusion; procedural flaw; refusal; retirement;
Judgment 2475
99th Session, 2005
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 22
Extract:
The complainant was dismissed on the grounds of misconduct following an investigation. "The procedure adopted in this case was clearly flawed in that the complainant was denied the opportunity to question any of the persons whose statements were used against him, evidence of little probative value was relied upon and, at least to some extent, he was required to prove his innocence instead of having the matters alleged proven against him. [...] It follows that the [...] decision [...] to dismiss the complainant must be set aside. The complainant shall be reinstated [...] and shall receive all arrears of salaries and other benefits; he must account for any earnings from other employment."
Keywords:
adversarial proceedings; breach; burden of proof; consequence; disciplinary measure; evidence; inquiry; investigation; lack of evidence; procedural flaw; reinstatement; serious misconduct; staff member's duties; termination of employment; testimony;
Judgment 2457
99th Session, 2005
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
The complainant argues that the competition procedure was flawed owing to the fact that one of the members of the Selection Board was not present at the pre-selection meeting. The Organisation does not deny this fact but considers that this procedural flaw could not invalidate the pre-selection since the Selection Board, which decided unanimously, would not have reached a different conclusion even if all Board members had been present.
Basing itself on the applicable rules the Tribunal considers that "the absence of one member of the Board did constitute a flaw, despite the fact that the Board's opinion was unanimous. Since the flawed composition of the Selection Board could not be corrected through subsequent consultation of the absent member, the competition procedure, which is tainted with a formal flaw, must be set aside where the complainant is concerned [...]. The complainant must therefore be restored to the position in which he was prior to the [pre-selection] meeting [...], and his application must be reviewed in accordance with the applicable rules."
Keywords:
candidate; claim; compensation; competition; complainant; composition of the internal appeals body; consequence; consultation; decision; difference; enforcement; flaw; formal flaw; identical claims; procedural flaw; procedure before the tribunal; provision; selection board; written rule;
Judgment 2432
99th Session, 2005
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"The Tribunal takes the view that, before taking a final decision, any collegiate body must meet to deliberate. A meeting may not be absolutely necessary, however, [...]if the Committee members agree on all the points of their individual reports.
In this case, in view of the uncertainty regarding the period referred to in assessing the seriousness of the complainant's illness, of the fact that she was suffering from afflictions requiring treatment by different medical specialists and of the differences of opinion which emerged regarding the seriousness of the illness and the incapacity it caused, the Tribunal considers that the Invalidity Committee should have met before issuing its final decision. Since no meeting took place, the procedure leading up to the impugned decision is flawed even though the practitioner appointed by the complainant did not raise any objection. The decision must therefore be set aside and the case sent back to the Organisation for reconsideration of the question [...]"
Keywords:
advisory body; condition; due process; invalidity; procedural flaw; remand;
Judgment 2427
99th Session, 2005
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
"According to the case law [...], the Tribunal is competent to review the lawfulness of any decision by the Director-General to terminate a staff member's probation. In particular, it may determine whether that decision is based on errors of fact or law, or whether essential facts have not been taken into consideration, or whether clearly mistaken conclusions have been drawn from the facts, or, lastly, whether there has been an abuse of authority. The Tribunal may not, however, replace with its own the executive head's opinion of a staff member's performance, conduct or fitness for international service (see Judgment 318, considerations).
Other cases mention, as further grounds on which the Tribunal will review such decisions, a formal or procedural flaw, or lack of due process (see, for example, Judgments 13, 687, 736, 1017, 1161, 1175, 1183 and 1246) which, it has been noted, must be substantial to invalidate an end-of-probation termination decision."
Reference(s)
ILOAT Judgment(s): 13, 318, 687, 736, 1017, 1161, 1175, 1183, 1246
Keywords:
abuse of power; case law; competence of tribunal; conduct; contract; decision; decision quashed; disregard of essential fact; evidence; executive head; fitness for international civil service; flaw; formal flaw; grounds; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; non-renewal of contract; probationary period; procedural flaw; termination of employment; tribunal; work appraisal;
Judgment 2365
97th Session, 2004
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4(a)
Extract:
"The suspension of the complainant was an interim, precautionary measure, which was to last as long as the disciplinary procedure. It was ordered without hearing the complainant's views on the matter beforehand, but the latter's right to be heard was safeguarded since he later had an opportunity to exercise it before the impugned decision was taken. In any case, a decision to suspend need not necessarily be followed by a substantive decision to impose a disciplinary sanction (see Judgment 1927, under 5). Nevertheless, since it imposes a constraint on the staff member, suspension must be legally founded, justified by the requirements of the organisation and in accordance with the principle of proportionality. A measure of suspension will not be ordered except in cases of serious misconduct. Such a decision lies at the discretion of the Director-General. It is subject therefore to only limited review by the Tribunal, that is to say, if it was taken without authority or in breach of a rule of form or of procedure, or was based on an error of fact or of law, or overlooked some essential fact, or was tainted with abuse of authority, or if a clearly mistaken conclusion was drawn from the evidence (see, for instance, Judgment 2262, under 2)."
Reference(s)
ILOAT Judgment(s): 1927, 2262
Keywords:
abuse of power; breach; condition; decision; decision-maker; disciplinary measure; disciplinary procedure; discretion; disregard of essential fact; executive head; formal flaw; formal requirements; judicial review; limits; measure of distraint; mistake of fact; mistaken conclusion; misuse of authority; official; organisation's duties; period; procedural flaw; proportionality; provisional measures; right to reply; suspensive action;
Judgment 2357
97th Session, 2004
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"It was said in Judgments 1835, 1836 and 1837 that the application of Article 71(2)[regarding the conditions of award of an education allowance] 'is at the discretion of the President of the Office'. It is not strictly accurate to describe a decision as to the application of Article 71(2) as discretionary. The question whether a particular school or university corresponds to a 'child's educational stage' is essentially a question of fact, albeit one that may, in some circumstances, permit of a value judgment. However, because of the nature of that question, a decision under Article 71(2) is subject to limited review on the same grounds as a discretionary decision properly so called. Thus, it will be reviewed only for procedural error, mistake of fact or law, the drawing of a clearly mistaken conclusion or misuse of authority. In particular, this Tribunal will not substitute its view of the facts for that reached by the President."
Reference(s)
Organization rules reference: Article 71(2) of the Service Regulations for Permanent Employees of the EPO
ILOAT Judgment(s): 1835, 1836, 1837
Keywords:
abuse of power; allowance; case law; condition; decision; discretion; education expenses; enforcement; executive head; grounds; interpretation; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; procedural flaw; provision; staff regulations and rules;
Judgment 2306
96th Session, 2004
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 21
Extract:
"Given the unsatisfactory nature of the administrative processes which led to the early termination of the complainant's contract and, in particular, the lack of due process, the want of transparency and the 'unreasonably brief' nature of those processes, [...] the complainant should be awarded moral damages in the amount of 5,000 United States dollars."
Keywords:
amount; breach; contract; moral injury; procedural flaw; procedure before the tribunal; right; right to reply; termination of employment;
Judgment 2285
96th Session, 2004
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"[T]he Tribunal considers that it need not ascertain whether procedural irregularities were committed by the Ombudsperson, since the latter merely put forward a proposal which did not constitute a decision and which was addressed exclusively to the complainant, inviting her to relinquish her management responsibilities, that is, to resign. The only decision the complainant can challenge is precisely that which she alleges was unlawful, namely the decision [taken on behalf of the Director-General to release her from her position], which was independent of the Ombudsperson's proposal. Even though there is no doubt that it was the outcome of the Ombudsperson's investigations which led the [...] authorities to take the challenged decision, the lawfulness of that decision must be assessed independently of the Ombudsperson's proposal."
Keywords:
advisory body; decision; procedural flaw; procedure before the tribunal; recommendation; resignation; submissions; transfer;
Judgment 2282
96th Session, 2004
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"The integrity of the internal appellate process is of fundamental importance to the proper functioning of the international civil service. Like the process before the Tribunal itself, it must be free of any taint of fraud or abuse of power. If mere delay in the completion of an internal appeal is enough to vitiate the process (see Judgments 2072 and 2197), how much more will that be the case where the process is corrupted at its very source by an attempt to keep staff members from exercising their legal rights. The Tribunal asserts unhesitatingly that intimidation or threats of reprisal in such circumstances will be severely sanctioned. Indeed, there is a positive obligation on the part of the administration of every international organisation to assist staff in the exercise of their recourse and to place no obstacle in their way."
Reference(s)
ILOAT Judgment(s): 2072, 2197
Keywords:
abuse of power; delay; due process; hidden disciplinary measure; internal appeal; internal appeals body; lack of consent; misuse of authority; organisation's duties; procedural flaw; procedure before the tribunal; right; submissions;
Judgment 2254
95th Session, 2003
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"According to firm precedent, before deciding a disciplinary sanction, an organisation should inform the person concerned that disciplinary proceedings have been initiated and should allow him ample opportunity to take part in adversarial proceedings, in the course of which he is given the opportunity to express his point of view, put forward evidence and participate in the processing of the evidence submitted in support of the charges against him. ... Failing a valid waiver on the part of the complainant of the adversarial proceedings provided for in the staff rules, the Director-General incorrectly based his decision on information that was not gathered in the context of adversarial proceedings guaranteeing the complainant's right to be heard. Since the complainant was not given the opportunity to put forward a proper defence, this fundamental flaw must cause the impugned decision to be set aside."
Keywords:
adversarial proceedings; appraisal of evidence; case law; disciplinary measure; disciplinary procedure; disclosure of evidence; due process; evidence; organisation's duties; procedural flaw; right to reply; staff regulations and rules;
Judgment 2226
95th Session, 2003
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 21
Extract:
The complainant was reassigned from one day to the next. "Considering the complainant's length of service (12 years with the organization), the absence of any report of misconduct or unsatisfactory performance on his part, or any indication of urgency that might have justified a sudden, unheralded management decision to reassign him, the action of the Director-General was flawed by procedural irregularity."
Keywords:
decision; executive body; executive head; flaw; lack of evidence; misconduct; notice; organisation; period; procedural flaw; reassignment; report; satisfactory service; unsatisfactory service; work appraisal;
Judgment 2172
94th Session, 2003
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 20-21
Extract:
The organisation extended the complainant's probationary period and transferred her following an unfavourable performance appraisal report. She submits that her supervisors failed to observe the procedure for the completion of performance appraisal reports. The Tribunal considers that "even if her supervisor appeared to follow the proper procedure by sending her the appraisal report [...] before the second-level supervisor had signed it, in order for the procedure to be meaningful, the second-level supervisor should not have written her comments until the complainant's supervisor had answered the memorandum [in which the complainant contested her appraisal]. The process is not a dialogue if one party does not listen to another. in this case, the complainant's supervisor did not consider the complainant's comments when preparing the evaluation. The evidence thus supports the complainant's allegation that the proper procedure was not followed [...] the decision to extend the probationary period was based on a flawed appraisal and the complainant should have been confirmed in her post."
Keywords:
breach; consequence; decision; different appraisals; extension of contract; mistake of fact; performance report; period; post; probationary period; procedural flaw; procedure before the tribunal; reply; supervisor; transfer; unsatisfactory service; work appraisal;
Judgment 2163
93rd Session, 2002
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 1
Extract:
"An appointment by an international organisation is a discretionary decision. 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. The Tribunal will, in cases like the present, exercise its power of review with special caution, its function being not to judge the candidates on merit but to allow the organisation full responsibility for its choice. [...] 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 Judgments 1077 [...], 1497 [...] and 1549 [...])."
Reference(s)
ILOAT Judgment(s): 1077, 1497, 1549
Keywords:
abuse of power; appointment; candidate; case law; competition; decision; decision-maker; discretion; disregard of essential fact; equal treatment; flaw; formal flaw; good faith; international civil service principles; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; organisation's duties; procedural flaw; right;
Judgment 2114
92nd Session, 2002
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 14
Extract:
"When the measure takes the form of a reprimand, the Tribunal will exercise a limited power of review. It will not interfere 'unless the measure was taken without authority, or violates a rule of form or procedure, or is based on an error of fact or of law, or if essential facts have not been taken into consideration, or if it is tainted with abuse of authority, or if a clearly mistaken conclusion has been drawn from the facts'. (see Judgment 274, [...], under 2.)"
Reference(s)
ILOAT Judgment(s): 274
Keywords:
abuse of power; censure; conduct; decision-maker; disciplinary measure; disregard of essential fact; duty of discretion; formal flaw; freedom of speech; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; procedural flaw;
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