Procedural flaw (559,-666)
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Keywords: Procedural flaw
Total judgments found: 145
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Judgment 1217
74th Session, 1993
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 5-6, Summary
Extract:
The complainant pleads that the impugned decision is unlawful because the Director of Administration had no authority to take it; the Director-General himself should have signed it, he argues. The plea fails. It is plain on the evidence that the decision gave effect to the Director-General's wishes. That is born out by the complainant's putting the matter to the Director-General after he got the impugned decision and by the Director-General's making plain that the decision by the Director of Administration squared with his own views on the matter.
Keywords:
competence; decision; decision-maker; procedural flaw;
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 1188
73rd Session, 1992
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
After the Director-General imposed a disciplinary sanction on the complainant he lodged an internal appeal. Rule 110.4.3 of the Staff Rules says that "the deliberations and reports of the Disciplinary Committee and its recommendations to the Director- General shall be confidential". The material issue is "whether the full text of the Disciplinary Committee's report, and not just the text of its recommendation, was disclosed to the Joint Appeals Committee. If it was, the Union should have let the complainant too have a copy and, failing that, there was a procedural flaw in that there was breach of his right of defence."
Reference(s)
Organization rules reference: UPU STAFF RULE 110.4.3
Keywords:
confidential evidence; disciplinary measure; disciplinary procedure; disclosure of evidence; further submissions; interlocutory order; internal appeal; internal appeals body; procedural flaw; procedure before the tribunal; recommendation; report; right to reply; staff regulations and rules;
Judgment 1175
73rd Session, 1992
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"As the case law makes plain - for example, judgments 736 [...] and 1161 [...] - a decision not to confirm a probationer's appointment is a matter of discretion for the President. Although the Tribunal may review the lawfulness of dismissal of a probationer, the nature of the decision is such that its power of review is limited. It will set aside the decision only if 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."
Reference(s)
ILOAT Judgment(s): 736, 1161
Keywords:
abuse of power; case law; contract; discretion; disregard of essential fact; flaw; formal flaw; grounds; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; probationary period; procedural flaw; termination of employment;
Judgment 1161
72nd Session, 1992
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"As the case law makes plain - for example, Judgments 687 [...] and 736 [...] - a decision not to confirm a probationer's appointment is a matter of discretion for the [executive head] and the Tribunal will not substitute its own judgment for the organisation's in matters that require such exercise of discretion. Although the Tribunal may review the lawfulness of dismissal of a probationer, the nature of the decision is such that its power of review is limited. It will set aside the decision only if 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."
Reference(s)
ILOAT Judgment(s): 687, 736
Keywords:
abuse of power; case law; discretion; disregard of essential fact; flaw; formal flaw; judicial review; mistake of fact; mistaken conclusion; misuse of authority; probationary period; procedural flaw; termination of employment;
Judgment 1131
71st Session, 1991
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
The Tribunal observes that UNESCO's decision to separate the complainant from service after it abolished his post was flawed by the Organization's failure to abide by the rules in Circular No. 1583. The report of the Joint Co-Operation Committee, which was to make a recommendation on the case, gives no evidence of any discussion of the administration's proposals concerning the complainant. What is more, the proposal to freeze his post did not come from the competent authority. A redeployment proposal was rejected without having been discussed or put to the Director-General as required by the circular. As the complainant is not seeking reinstatement, the Tribunal grants him redress for material injury in the amount of one year's full pay.
Keywords:
abolition of post; administrative instruction; advisory body; advisory opinion; competence; consultation; decision-maker; fixed-term; non-renewal of contract; organisation's duties; procedural flaw; reassignment; separation from service;
Judgment 1129
71st Session, 1991
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
The complainant's post was abolished for reasons of financial stringency. According to Circular 1583 proposals to abolish a post must come from the competent Assistant Director-General. In this case the Assistant Director-General did not specifically name the complainant's post. He merely abolished the division which the complainant headed. It being impossible for the Director's post to survive after abolition of a division to direct, the allegation of a procedural flaw fails.
Reference(s)
Organization rules reference: CIRCULAR NO. 1583
Keywords:
abolition of post; administrative instruction; budgetary reasons; competence; decision-maker; procedural flaw; procedure before the tribunal; termination of employment;
Judgment 1109
71st Session, 1991
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
After recommending that the complainant should get a personal promotion, the Selection Board held a further meeting at the instance of the Deputy Director-General and shifted ground. The Tribunal holds that "in only two cases may an internal body be asked to think again. One is where something unforeseeable and of decisive moment occurs after it has reported, and the other is where there comes to light some fact or evidence, again of cardinal importance, that it did not know of or could not have known of before it reported." Since those conditions were not met in the instant case, the decision is tainted with a procedural flaw and must be quashed. The complainant is sent back to the Organisation for his case to be reviewed.
Keywords:
advisory body; case reopened; condition; flaw; internal appeals body; organisation; procedural flaw; request by a party; selection board;
Consideration 4
Extract:
In keeping with the scheme for "personal promotion" brought in by Circular 334, "promotion is at the Director-General's discretion, his decision is subject only to limited review, and it may not ordinarily be set aside unless there is some particular fatal flaw. Breach of a procedural rule is such a flaw."
Reference(s)
Organization rules reference: ILO CIRCULAR 334 (SERIES 6) OF 20 JULY 1985
Keywords:
discretion; flaw; judicial review; personal promotion; procedural flaw; promotion;
Consideration 5
Extract:
The complainant objects to the decision to refuse him personal promotion under Circular 334. The Tribunal holds that the fact "that the explanation came in this case from the Director-General himself [rather than from the Selection Board as required by paragraph 14 of the Circular] is not [...] a procedural flaw. Paragraph 14 is unenforceable because the Board can explain only its own recommendation and because the text might require it to explain even a decision that ran counter to that recommendation."
Reference(s)
Organization rules reference: ILO CIRCULAR 334 (SERIES 6) OF 20 JULY 1985
Keywords:
administrative instruction; grounds; personal promotion; procedural flaw; procedure before the tribunal; refusal;
Judgment 1084
70th Session, 1991
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"Refusal to entertain a claim [on the part of the Appeals Board] is not a procedural error but implied rejection of the claim."
Keywords:
internal appeals body; procedural flaw;
Judgment 1077
70th Session, 1991
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
The complainant objects to the outcome of a competition which she took part in. The Tribunal finds the material selection process is tainted with two flaws: the results were not "quantified" and the candidates were not anonymous. As the evaluation process was not a fair one, the complainant is entitled to damages.
Keywords:
bias; competition; equal treatment; procedural flaw;
Judgment 1071
70th Session, 1991
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
Both the complainant and one other candidate, Mr. X, were short-listed after a post they applied for was put up for competition. The Selection Committee interviewed Mr. X and he then got the appointment. Referring to precedent as stated in Judgment 107, the Tribunal held that "the Selection Committee did not put the complainant on an equal footing with Mr. [X]: it interviewed him but not her." The selection procedure was flawed and the complainant entitled to damages.
Reference(s)
ILOAT Judgment(s): 107
Keywords:
candidate; competition; equal treatment; procedural flaw;
Judgment 1067
70th Session, 1991
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 7-8, Summary
Extract:
The complainant, who holds grade P.3, challenges the Organization's refusal to regrade his post to P.4. The fact that his chief failed to complete a questionnaire about changes in his duties does not, as he alleges, constitute a flaw such as to vitiate the reclassification procedure. Nor does the administration's refusal to disclose the Classification Unit's findings amount to a denial of due process.
Keywords:
disclosure of evidence; due process; organisation's duties; post classification; procedural flaw; procedure before the tribunal; report;
Judgment 1049
69th Session, 1990
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
The complainants, who applied for a vacant post put up for competition, wish to have the results set aside. The Tribunal is satisfied on the evidence that the selection procedure shows several serious flaws, of which at least two are fatal: in breach of Manual provision II.3.340 no short-list had been drawn up and the Director-General drew had drawn mistaken conclusions from the evidence before him in dismissing the Appeals Boards' findings of improprieties.
Reference(s)
Organization rules reference: WHO MANUAL PROVISION II.3.340
Keywords:
application for quashing; competition; flaw; mistaken conclusion; procedural flaw; procedure before the tribunal; selection board;
Judgment 1017
69th Session, 1990
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
Paragraph 3(v) of an IFAD Administrative Instruction on probation under fixed-term appointments reads: "Where it is deemed by the head of department that the staff member's performance is less than satisfactory, he/she will be immediately informed by the head of department that a decision from the President will be sought to terminate his/her services by letting the period of probation lapse." The President's decision to terminate the complainant's appointment at the end of the extended period of probation was flawed by non-compliance with this requirement. because the decision was in breach of the procedural rule, the Tribunal will set it aside and award the complainant substantial compensation for the improper termination of her contract and for moral damages.
Keywords:
duty to inform; flaw; moral injury; probationary period; procedural flaw; termination of employment; unsatisfactory service;
Judgment 999
68th Session, 1990
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"Breach of the Staff Regulations and of general principles, including breach of due process, is a flaw in the appeal proceedings which also taints the impugned decision, and for that reason the [final] decision [to confirm the complainant's dismissal for grave misconduct] cannot stand. What does stand, however, since it is only the appeal proceedings that were improper, is the prior decision [of dismissal]." "The complainant duly filed his internal appeal with the Regional Board, and the Organization shall resume the internal appeal proceedings. The competent authorities shall reconsider the internal appeal in the light of the submissions already made by WHO and by the complainant and any further submissions the parties may make in adversarial proceedings".
Keywords:
case sent back to organisation; decision quashed; flaw; internal appeal; misconduct; procedural flaw; right to reply; termination of employment;
Consideration 6
Extract:
"Since the breach of due process in the internal appeal proceedings has held up the final determination of the matter and caused the complainant injury whatever the outcome may eventually be, the Tribunal orders the Organization to pay him lump-sum damages in the amount of 500 United States dollars."
Keywords:
administrative delay; amount; injury; judgment of the tribunal; material damages; moral injury; procedural flaw;
Judgment 939
65th Session, 1988
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
The complainant was transferred without prior consultation of the Selection Board as required under Article 4.2(f) of the Staff Regulations. The Tribunal holds that the breach of procedure was minor, though it did cause the complainant injury. The Tribunal will therefore refrain from quashing the impugned decision and will order the organisation to pay the complainant damages and a further sum towards costs.
Reference(s)
Organization rules reference: ARTICLE 4.2 OF THE ILO STAFF REGULATIONS
Keywords:
consultation; costs; flaw; injury; material damages; organisation's duties; procedural flaw; selection board; transfer;
Judgment 901
64th Session, 1988
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
The complainant was on mission when he was terminated as persona non grata. "There was no objective report on this case. [...] All this makes it plain that summary termination under 11.4 [of the Staff Regulations] was in breach of the complainant's right of reply and cannot stand."
Reference(s)
Organization rules reference: ARTICLE 11.4 OF THE ILO STAFF REGULATIONS
Keywords:
contract; field; fixed-term; flaw; persona non grata; procedural flaw; project personnel; right to reply; termination of employment;
Judgment 888
64th Session, 1988
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations
Extract:
The complainant was accused of submitting false certificates for sick leave and was dismissed for serious misconduct. He claims to have been unaware that the certificates were false at the time he presented them and that, while awaiting the outcome of the judicial inquiry underway, he should be presumed innocent. The complainant's dismissal was confirmed by the Chief of personnel. That decision was "defective in that it did not reply to the complainant's letter inviting the organization to wait for the outcome of the trial and did not require him to furnish his full defence. It was made without the complainant's having fully exercised his right to be heard." Because it is tainted with a procedural flaw, the decision is quashed and the Tribunal orders the complainant to be reinstated and awarded an amount equivalent to the pay which he lost between the date of dismissal and that of reinstatement.
Keywords:
amount; flaw; material damages; medical certificate; misrepresentation; moral injury; procedural flaw; reinstatement; right to reply; serious misconduct; summary dismissal; termination of employment;
Judgment 806
61st Session, 1987
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 16
Extract:
"The procedural flaw the complainant alleges is that the EPO will fully let the appeal proceedings drag on so as to thwart his hopes of promotion. The plea fails. The EPO may not be taken to task for awaiting the Tribunal's ruling on the earlier complaint." In addition the EPO resorted to an extraordinary procedure so that his promotion could be awarded.
Keywords:
administrative delay; consequence; lack of injury; performance report; procedural flaw; procedure before the tribunal; promotion; rebuttal;
Judgment 804
61st Session, 1987
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"For want of other evidence the Tribunal cannot but conclude that the consultation required by the order [laying down the procedure to be followed when the reclassification of a post is requested] never took place. The requirement of an on-the-spot evaluation is not met by just taking note of the staff member's application: there must be a meeting and discussion with him on any points it may raise"
Keywords:
flaw; inquiry; investigation; post classification; procedural flaw; right to reply;
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