Judgment 1616
82nd Session, 1997
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"The provisions of the combined [Staff] Rules apply to international and local staff alike, and so any provision that applies to one category of staff and not to the other offends against those rules and is unlawful. Here the Director General had no authority to treat as a mere option the consultation of the Joint Board on Appeals from local staff: the combined [Staff] Rules apply to all staff and so does the duty those rules lay down. The rule under which the Director General exercised discretion was an unlawful one and he thereby committed a mistake of law."
Keywords:
advisory body; consultation; discretion; executive head; local status; non-local status; precedence of rules; staff regulations and rules;
Judgment 1565
82nd Session, 1997
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"The complainant argues that since it was unlawful to have no staff representative on the Selection Committee its recommendation too was unlawful. [...] But since the provisions on the membership of the Committee are not binding, and if no staff representative chooses to attend, that cannot have the effect of invalidating its recommendations."
Keywords:
advisory body; composition of the internal appeals body; flaw; promotion; promotion board; recommendation; staff representative;
Judgment 1525
81st Session, 1996
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
Consulting an advisory board before the Director-General takes a decision not to extend an appointment "is no idle formality: it is supposed to afford a means of working out a fair solution. In this case it offered the hope of redeploying someone with a long record of service.Several judgments have stressed the importance of advisory boards: see for example Judgment 352 [...], under 5."
Reference(s)
ILOAT Judgment(s): 352
Keywords:
advisory body; advisory opinion; contract; decision; non-renewal of contract; organisation's interest; patere legem; procedure before the tribunal; purpose; staff member's interest;
Consideration 4
Extract:
The Director-General took a premature decision not to renew the complainant's appointment. The Tribunal holds that "for want of a valid decision to terminate his appointment, the contract between the complainant and the organization is still in force and he is entitled to payment of salary and allowances as from the purported date of termination. UNESCO must also decide whether to reinstate him. In view of his seniority his appointment would not have been bound to end if due process had been observed. In deciding whether or not to renew his contract the organization must comply with any procedural and substantive rules that are material."
Keywords:
advisory body; advisory opinion; consequence; contract; extension of contract; flaw; non-renewal of contract; procedural flaw; reinstatement;
Judgment 1488
80th Session, 1996
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
Article 38(3) of the Service Regulations, which provides for consultation of an advisory body, does "apply to cases where the Service Regulations and Pension Scheme Regulations are to be amended or 'implementing rules' are to be made, and the legal status of staff is thereby to be affected. But it goes further: it applies to cases where 'any proposal' is made 'which concerns the whole or part of the staff'. So it casts a wide net that goes beyond mere changes in legal provisions."
Reference(s)
Organization rules reference: ARTICLE 38(3) OF THE EPO SERVICE REGULATIONS
Keywords:
advisory body; consultation; interpretation; staff regulations and rules;
Consideration 10
Extract:
"Article 38(3) [...] seeks to ensure that the proposal shall go through a formal process in which the staff have a right to be consulted through the General Advisory Committee. Indeed it makes for good relations between staff and administration not just to empower but to require that body, set up under the Service Regulations to represent both sides, to give 'a reasoned opinion'. It does not matter that management may have consulted the staff on the subject in other ways. What was lacking in this case was what Article 38(3) required: the formal consultation of the General Advisory Committee and the submission of its reasoned opinion before the decision was made."
Reference(s)
Organization rules reference: ARTICLE 38(3) OF THE EPO SERVICE REGULATIONS
Keywords:
advisory body; consultation; due process; organisation's duties; procedural flaw; staff regulations and rules;
Judgment 1477
80th Session, 1996
International Training Centre of the International Labour Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"It is plain from the whole process of selection that though the Committee did endorse the panel's report it had neither looked at the individual applications nor seen any of the candidates but had left all that to the panel. Though it is not unthinkable for a selection committee to set up a panel of people whom it believes to be better fitted to assess the technical qualifications of candidates, especially external ones, it may not delegate altogether its authority under the Staff Regulations. It must exercise its own authority and not delegate unless the rules say it may."
Keywords:
advisory body; competition; condition; delegated authority; flaw; impartiality; procedural flaw; selection board; staff regulations and rules;
Judgment 1458
79th Session, 1995
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 12
Extract:
The Advisory Committee on Post Adjustment Questions (ACPAQ) is a subsidiary body of the International Civil Service Commission set up with the approval of the General Assembly to make recommendations on the general administration of the system of post adjustments. "It has no authority to make decisions. Its recommendations become part of the post adjustment system only when approved by the Commission. The conclusion is that the recommendation of ACPAQ [...] has no binding force and is therefore irrelevant".
Keywords:
advisory body; advisory opinion; icsc decision; internal appeals body; post adjustment; recommendation;
Judgment 1441
79th Session, 1995
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 16
Extract:
The complainant relies on a rule which says that members of the Disciplinary Committee [composed in this instance of staff members from headquarters and constituted there] should come from the staff of the Regional Office and have been locally recruited. The Tribunal considers that "the rule [in question] is not binding" and states that "in any event the complainant has failed to show how the membership of the committee [composed in this instance of staff members from headquarters and constituted there] might have proved prejudicial to the proper and independent consideration of his case."
Reference(s)
Organization rules reference: UNESCO STAFF RULE 110.2(D)
Keywords:
advisory body; burden of proof; composition of the internal appeals body; disciplinary procedure; duty station; injury; lack of injury; safeguard;
Judgment 1422
79th Session, 1995
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
The Tribunal has ruled in Judgment 988 "that Regulation 4.9 allows the Secretary-General to promote someone even against the Appointment and Promotion Board's advice and is intended as a safeguard to ensure compliance with the rules on appointment and promotion. The intent is not to enable the Secretary-General to prefer a weaker candidate on compassionate or indeed any other grounds."
Reference(s)
Organization rules reference: ITU STAFF REGULATION 4.9
ILOAT Judgment(s): 988
Keywords:
advisory body; advisory opinion; appointment; case law; discretion; due process; enforcement; executive head; interpretation; promotion; promotion board; safeguard; selection board; staff regulations and rules;
Judgment 1401
78th Session, 1995
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
Article VII(3) of the Tribunal's Statute "cannot apply to the Appeals Committee, which does not make administrative decisions but is an advisory body, with representatives of both management and staff, which submits mere recommendations. It is the Director-General who takes the final decision on the Committee's recommendation."
Reference(s)
ILOAT reference: ARTICLE VII(3) OF THE STATUTE
Keywords:
absence of final decision; advisory body; decision; effect; executive head; iloat statute; internal appeals body; recommendation;
Judgment 1398
78th Session, 1995
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"The President has wide discretion over the organisation of work and he is not bound to consult the advisory bodies set up under the Service Regulations before introducing new means of improving staff efficiency. In any event the impugned decision made no change in the rules on work arrangements that required such consultation under Article 38."
Reference(s)
Organization rules reference: ARTICLE 38 EPO SERVICE REGULATIONS
Keywords:
advisory body; advisory opinion; discretion; executive head; organisation's interest; reorganisation; staff regulations and rules;
Judgment 1371
77th Session, 1994
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
The ad hoc reduction-in-force committee has discretion to consider a candidate well-suited for work in a particular group "on the strength of his actual qualifications and experience. In this case the committee failed to exercise such discretion and so the reduction-in-force procedure has not been duly completed. It must therefore be restarted."
Keywords:
advisory body; candidate; discretion; due process; flaw; procedure before the tribunal; professional category; staff reduction;
Judgment 1363
77th Session, 1994
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 22
Extract:
"Even if disciplinary proceedings have begun there can be no 'act adversely affecting' an employee within the meaning of Article 107 [of the Service Regulations] until the proceedings are over and there is a final decision by the competent authority. So the complainant's internal appeals were premature insofar as he lodged them before the President had taken his decision [...] on the Disciplinary Committee's report."
Reference(s)
Organization rules reference: ARTICLE 107 OF THE EPO SERVICE REGULATIONS
Keywords:
absence of final decision; advisory body; cause of action; disciplinary procedure; executive head; internal appeal; procedure before the tribunal; receivability of the complaint; report; staff regulations and rules;
Judgment 1355
77th Session, 1994
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"According to the case law - especially Judgment 1235 [...] - the Director-General is not bound by the appointment and Promotion Committee's recommendations and in particular need not appoint the candidate the Committee has put first. In the exercise of discretion, he must ensure that his choice is not tainted with any mistake of law or fact and, to allow the tribunal to exercise its power of review, he must state the reasons for his decision."
Reference(s)
ILOAT Judgment(s): 1235
Keywords:
advisory body; advisory opinion; appointment; candidate; case law; competition; discretion; duty to substantiate decision; executive head; judicial review; limits; mistake of fact; promotion board;
Consideration 10
Extract:
The Tribunal rejects his plea "that the Director-General erred in law by assuming that he was empowered to disregard the Appointment and Promotion Committee's 'decisions'. What the Committee does is advise, not decide, and the Director-General simply exercised his discretion in choosing between the candidates on its short-list. Although [...] he must exercise such discretion lawfully he is not bound by the Committee's ranking of candidates."
Keywords:
advisory body; advisory opinion; appointment; candidate; competition; condition; decision; discretion; executive head; promotion board;
Judgment 1350
77th Session, 1994
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
The complainant may not seek "the quashing of what he calls the 'decision' of the appeals board: according to the Staff Regulations the Board merely gives an opinion that is not binding on the Director-General".
Keywords:
advisory body; application for quashing; decision; decision quashed; internal appeals body; receivability of the complaint; report;
Judgment 1346
77th Session, 1994
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
The complainant was dismissed on grounds of serious misconduct. He submits that "the punishment is out of proportion to any offence he may have committed. [...] He is wrong. As the Joint Disciplinary Committee unanimously held, he was guilty of 'wilful and repeated insubordination', had never since shown 'the slightest contrition or change of mind' and had offered 'unacceptable explanations for his behaviour'. The conclusion is that in the circumstances there was nothing disproportionate about the sanction."
Keywords:
advisory body; advisory opinion; disciplinary measure; disciplinary procedure; insubordination; misconduct; proportionality; staff member's duties;
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 1177
73rd Session, 1992
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"When the Director-General's decision is not based on the results of an examination marked by an independent body, he has a wide degree of discretion in making an appointment and granting promotion. Though he is not bound by any recommendation from an advisory body, his authority does not make referral to such a body pointless. A selection body relieves him of the burden of carrying out an assessment himself. It ensures that all applications for appointment or promotion, whatever their source, shall be examined impartially and on the merits. And its report enables the Tribunal to appraise the background to the impugned decision and determine whether it shows any flaw."
Keywords:
advisory body; appointment; competition; discretion; further submissions; impartiality; interlocutory order; judicial review; promotion; promotion board; recommendation; report;
Judgment 1138
72nd Session, 1992
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
The complainant "is mistaken in thinking that the Director-General was bound to accept the Board's recommendations. What it offered was advice that there should be further assessment of him [...] but that advice was not accepted: the Director-General decided instead to abide by the decision not to renew his contract. That cannot be construed as the overlooking of any essential fact."
Keywords:
advisory body; advisory opinion; binding character; recommendation;
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 1127
71st Session, 1991
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
The complainant suggests that the Reports Committee which recommended against confirming her appointment following probation was biased. "The burden is on the complainant to show that the members of the Committee duly appointed by the Director General were not impartial, and she has failed to offer any evidence to suggest that they were not."
Keywords:
advisory body; bias; burden of proof; complainant; composition of the internal appeals body; discretion; evidence; executive head;
Consideration 8
Extract:
"The Tribunal will not ordinarily question the competence and qualifications of those whom the Director General appoints in the exercise of his discretion to the Reports Committee, provided that the rules are complied with and the members' independence and impartiality are not in doubt."
Keywords:
advisory body; bias; competence; composition of the internal appeals body; discretion; executive head; judicial review; procedure before the tribunal;
Consideration 10
Extract:
The Reports Committee, which was called on to advise on whether the complainant's appointment should be confirmed, is free, as is the Tribunal, to turn down a complainant's request for hearings in the absence of any procedural rule to the contrary. "There was no breach of due process: provided that both parties were given the opportunity to state their views - and they were - the Reports Committee was free to conduct its inquiry as it thought fit."
Keywords:
adversarial proceedings; advisory body; due process; oral proceedings; procedure before the tribunal;
Consideration 14
Extract:
"There is no requirement in the Rules that [the report of an advisory body] should be communicated to the official before the Director General takes his decision. In any event the complainant has had the opportunity of addressing the contents of the report in her pleadings to the Tribunal."
Keywords:
advisory body; advisory opinion; disclosure of evidence; lack of injury; report; right to reply; tribunal;
