Role of the Tribunal (925,-666)
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Keywords: Role of the Tribunal
Total judgments found: 66
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Judgment 4720
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2015.
Consideration 11
Extract:
Regarding the complainant’s challenge to the substance of his 2015 appraisal report, it is convenient for the Tribunal to recall the following statement which it made in Judgment 4564, consideration 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“[A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
In Judgment 4637, having recalled that statement, the Tribunal observed, in consideration 13, that:
“Since the Tribunal’s power of review does not extend to determining as such whether appraisals are well founded, the fact that the Appraisals Committee’s power of review is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.”
Reference(s)
ILOAT Judgment(s): 4564, 4637
Keywords:
discretion; rating; role of the tribunal;
Judgment 4719
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2015.
Consideration 11
Extract:
Regarding the complainant’s challenge to the substantive aspects of his 2015 appraisal report, it is convenient to recall the following statement which the Tribunal made in Judgment 4564, consideration 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“[A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
In Judgment 4637, having recalled that statement, the Tribunal observed, in consideration 13, that:
“Since the Tribunal’s power of review does not extend to determining as such whether appraisals are well founded, the fact that the Appraisals Committee’s power of review is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.”
Reference(s)
ILOAT Judgment(s): 4564, 4637
Keywords:
discretion; rating; role of the tribunal;
Judgment 4718
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2015.
Considerations 4 & 13
Extract:
As the complainant challenged the impugned decision on procedural and substantive grounds, the Tribunal recalls the following statement which it made in Judgment 4564, consideration 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“[A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
In Judgment 4637, having recalled that statement, the Tribunal observed, in consideration 13, that:
“Since the Tribunal’s power of review does not extend to determining as such whether appraisals are well founded, the fact that the Appraisals Committee’s power of review is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.”
[...]
[T]he Tribunal recalls its case law, stated, for example, in consideration 13 of Judgment 4637, referring to Judgment 4257, that its power to review appraisal reports is limited to considering, among other things, whether there was illegality in drawing up the contested report. Additionally, as the Tribunal’s power of review does not extend to determining whether the report was well founded, the fact that the Appraisals Committee’s mandate is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.
Reference(s)
ILOAT Judgment(s): 4257, 4564, 4637
Keywords:
discretion; rating; role of the tribunal;
Judgment 4716
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2014.
Considerations 6 & 14
Extract:
Settled case law has it that supervisors enjoy wide discretion when assessing the performance of staff members and that, where a performance report is contested, the Tribunal exercises only a limited power of review. It will determine whether the reporting process is
vitiated by a formal or procedural flaw, an error of law or fact; whether a material fact was overlooked; whether there was a misuse of authority or an obviously wrong inference was drawn from the evidence; whether a plainly wrong conclusion was drawn from the facts; or whether there was abuse of authority. The Tribunal has also stated that, as a performance assessment is a value judgement within the discretionary authority of the bodies mandated to conduct it in accordance with the relevant rules, it will not substitute its own opinion for assessments made by these bodies. The limitation on the Tribunal’s power of review naturally applies to both the mark given in a staff report and the comments accompanying that mark in the report. This is because a performance report serves no purpose unless a supervisor has full freedom to comment on performance. The supervisor’s independence and sense of fairness being presumed, it is for the complainant to provide evidence that the staff report is flawed (see, for example, Judgments 4564, consideration 3, 3268, consideration 9, 3252, consideration 6, 2400, consideration 3, 2318, consideration 4, 2064, consideration 4, and 880, consideration 4). Moreover, inasmuch as the complainant was a staff representative at the material time, it is convenient to recall the Tribunal’s statement, in consideration 19 of Judgment 3084, that an organisation must ensure that a staff member is not disadvantaged on the grounds of her or his participation in staff representation activities as the principle of freedom of association is infringed if a person is subject to a detriment or disability because of her or his activities within a staff association (see also Judgments 3414, consideration 4, and 2704, consideration 6).
[...]
[S]upervisors enjoy wide discretion when assessing the performance of staff members and that, where a performance report is contested, the Tribunal exercises only a limited power of review.
Reference(s)
ILOAT Judgment(s): 880, 2064, 2318, 2400, 2704, 3084, 3252, 3268, 3414, 4564
Keywords:
discretion; rating; role of the tribunal;
Judgment 4715
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2014.
Consideration 11
Extract:
Regarding the complainant’s challenge to the substantive aspects of his 2014 staff report, the Tribunal finds it convenient to repeat the following statement which it made in Judgment 4564, consideration 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“[A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
In Judgment 4637, having recalled that statement, the Tribunal observed, in consideration 13, that:
“Since the Tribunal’s power of review does not extend to determining as such whether appraisals are well founded, the fact that the Appraisals Committee’s power of review is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.”
Reference(s)
ILOAT Judgment(s): 4564, 4637
Keywords:
discretion; rating; role of the tribunal;
Judgment 4714
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2014.
Consideration 11
Extract:
As a precursor to considering the merits of the assessment of the complainant’s 2014 staff report, the Tribunal finds it convenient to repeat the following statement which it made in Judgment 4564, consideration 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“[A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
In Judgment 4637, having recalled that statement, the Tribunal observed, in consideration 13, that:
“Since the Tribunal’s power of review does not extend to determining as such whether appraisals are well founded, the fact that the Appraisals Committee’s power of review is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.”
Reference(s)
ILOAT Judgment(s): 4564, 4637
Keywords:
discretion; rating; role of the tribunal;
Judgment 4713
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her staff report for 2014.
Consideration 11
Extract:
As a precursor to considering the merits of the assessment of the complainant’s 2014 staff report, the Tribunal finds it convenient to repeat the following statement which it made in Judgment 4564, consideration 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“[A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
In Judgment 4637, having recalled that statement, the Tribunal observed, in consideration 13, that:
“Since the Tribunal’s power of review does not extend to determining as such whether appraisals are well founded, the fact that the Appraisals Committee’s power of review is itself confined to assessing whether an appraisal report is arbitrary or discriminatory does not affect the Tribunal’s power of review, which continues to be exercised on the same terms as previously.”
Reference(s)
ILOAT Judgment(s): 4564, 4637
Keywords:
discretion; rating; role of the tribunal;
Judgment 4709
136th Session, 2023
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the refusal to recognise her illness as attributable to official duty.
Consideration 4
Extract:
[T]he Tribunal recalls that, according to consistent precedent, it may not replace the opinion of medical experts or a of committee dealing with medical cases, such as a compensation committee, with its own assessment. However, it does have full competence to say whether there was due process and to examine whether the opinion delivered by the committee in question shows any material mistake or inconsistency, overlooks some essential fact or plainly misreads the evidence (see, in particular, Judgments 4473, consideration 13, 3994, consideration 5, 2996, consideration 11, 2361, consideration 9, and 1284, consideration 4).
Reference(s)
ILOAT Judgment(s): 1284, 2361, 2996, 3994, 4473
Keywords:
illness; judicial review; medical board; role of the tribunal;
Judgment 4699
136th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decisions that found that his injuries had consolidated without permanent invalidity.
Consideration 6
Extract:
[I]t is not for the Tribunal, in medical matters, to replace the findings of medical experts with its own assessment (see, in particular, Judgments 4473, consideration 13, 4464, consideration 7, and 3361, consideration 8).
Reference(s)
ILOAT Judgment(s): 3361, 4464, 4473
Keywords:
medical opinion; role of the tribunal;
Judgment 4694
136th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision confirming his fitness for work and instructing him to resume his duties.
Consideration 11
Extract:
In Judgment 4580, consideration 19, the Tribunal recalled that, when decisions have been taken on the basis of expert evidence, it is not the Tribunal’s role to substitute its assessment for that of an expert, unless that assessment is affected by a blatant error (see also Judgments 4464, consideration 7, 4277, consideration 20, and 4278, consideration 16). However, far from establishing the existence of a blatant error, the arguments set up by the complainant against the Organisation’s medical evidence amount instead to a request for the Tribunal to substitute its assessment for that of the Organisation in relation to a medical matter.
Reference(s)
ILOAT Judgment(s): 4277, 4278, 4464, 4580
Keywords:
expert inquiry; medical opinion; role of the tribunal;
Judgment 4685
136th Session, 2023
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the implied rejection of her requests concerning the effective date of her promotion and the within-grade salary increment.
Consideration 4
Extract:
As the Tribunal recalled in Judgment 4186, consideration 6:
“It is well established in the Tribunal’s case law that the grounds for reviewing the classification of a post are limited and ordinarily a classification decision would only be set aside if it was taken without authority, was made in breach of the rules of form or procedure, was based on an error of fact or law, overlooked an essential fact, was tainted with abuse of authority or if a truly mistaken conclusion was drawn from the facts (see, for example, Judgments 1647, consideration 7, and 1067, consideration 2). Indeed, the classification of posts involves the exercise of value judgements as to the nature and extent of the duties and responsibilities of the posts, and it is not the Tribunal’s role to undertake this process of evaluation (see, for example, Judgment 3294, consideration 8). The grading of posts is a matter within the discretion of the executive head of an international organisation (or of the person acting on his behalf) (see, for example, Judgment 3082, consideration 20).”
These principles apply to both the decision to reclassify (with possible promotion) or to refuse to reclassify as well as to the date from which the reclassification should take place.
Reference(s)
ILOAT Judgment(s): 1067, 1647, 3082, 3294, 4186
Keywords:
effective date; post classification; promotion; role of the tribunal;
Judgment 4678
136th Session, 2023
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decisions not to extend his fixed-term contract due to unsatisfactory performance and to withhold his within-grade salary increment.
Consideration 4
Extract:
[T]he Tribunal recalls its well-established case law regarding decisions concerning staff performance appraisals and renewal of fixed-term appointments. Organizations have wide discretion in taking such decisions, which are therefore subject to only limited review by the Tribunal, which will interfere only if a decision was taken in breach of applicable rules on competence, form or procedure, if it was based on a mistake of fact or of law, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority (see Judgment 4170, consideration 9, and the case law cited therein). Where the reason for not renewing a contract is the unsatisfactory nature of the performance of a staff member, who is entitled to be informed in a timely manner as to the unsatisfactory aspects of her or his service, the organization can base its decision only on an assessment carried out in compliance with established rules (see, in particular, Judgment 2991, consideration 13, and the case law cited therein). This presupposes that the person in question has been informed in advance of what is expected of her or him, in particular by the communication of a precise description of the objectives set (see Judgment 3148, consideration 25).
Reference(s)
ILOAT Judgment(s): 2991, 3148, 4170
Keywords:
fixed-term; non-renewal of contract; performance; role of the tribunal; unsatisfactory service;
Judgment 4638
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2015.
Consideration 12
Extract:
[T]he exercise which the complainant invites the Tribunal to carry out with regard to his productivity targets, overall rating, certain allegedly wrong or incorrect figures and, in his view, inappropriate applications of the new method for processing patent applications known as “BEST” (Bringing Examination and Search Together) and the PAX calculation rules is essentially a fresh appraisal of his performance for 2015. However, that misconstrues the Tribunal’s role in this area in view of its limited power of review under its settled case law (see, for example, Judgments 4564, consideration 3, and 3252, consideration 6, also cited in [...] Judgment 4637, consideration 13).
Reference(s)
ILOAT Judgment(s): 3252, 4564, 4637
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4625
135th Session, 2023
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant disputes the lawfulness and outcome of a competition procedure in which she participated.
Consideration 3
Extract:
[T]he Tribunal recalls its settled case law under which, in matters of appointment, the choice of the candidate to be appointed lies within the discretion of the authority competent to make the appointment within the organisation concerned. Such a decision is therefore subject to only limited review and 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 (see, in particular, Judgments 3652, consideration 7, and 3372, consideration 12). As a result, a person who has applied for a post that an organisation has decided to fill by a competition and whose application is ultimately unsuccessful must prove that the selection procedure was tainted by a serious defect (see, in particular, Judgments 4001, consideration 4, and 1827, consideration 6).
Reference(s)
ILOAT Judgment(s): 1827, 3372, 3652, 4001
Keywords:
appointment; competition; judicial review; role of the tribunal; selection procedure;
Judgment 4612
135th Session, 2023
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to suspend her from duties with immediate effect.
Consideration 3
Extract:
[I]t is convenient to set out the legal principles applied by the Tribunal when considering a challenge to a suspension decision. The grounds for reviewing the exercise of the discretionary power to suspend are limited to questions of whether the decision was taken without authority, in breach of a rule of form or procedure, was based on an error of fact or law, involved an essential fact being overlooked or constituted an abuse of authority or if a clearly mistaken conclusion was drawn from the evidence (see, for example, Judgments 4452, consideration 7, 3037, consideration 9, 2698, consideration 9, and 2365, consideration 4(a)). According to the Tribunal’s case law, the suspension of an official is a provisional measure which in no way prejudges the decision on the substance of any disciplinary measure against her or him (see Judgments 2365, consideration 4(a) and 1927, consideration 5). However, as a restrictive measure on the staff member concerned, the suspension must have a legal basis, be justified by the needs of the organisation and be taken with due regard to the principle of proportionality. A staff member does not have a general right to be heard before a decision to suspend is made (see, for example, Judgment 4361, consideration 12).
Reference(s)
ILOAT Judgment(s): 1927, 2365, 2698, 3037, 4361, 4452
Keywords:
discretion; judicial review; role of the tribunal; suspension;
Judgment 4609
135th Session, 2023
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the new decision taken by UNESCO pursuant to Judgment 3936 in the context of her appeal against the decision to transfer her to Paris.
Consideration 4
Extract:
It is well established in the case law of the Tribunal that a decision to transfer an employee of an international organisation, which, as with any appointment decision, lies within the discretion of the executive head of the organisation concerned, is, for that reason, subject to only limited review. Therefore, such a decision may be set aside only if it was taken ultra vires, if it shows formal or procedural flaws or a mistake of fact or law, if some material fact was overlooked, if there was abuse of authority or if a clearly wrong conclusion was drawn from the evidence (see, for example, Judgments 4451, consideration 6, 3488, consideration 3, 2635, consideration 5, 1556, consideration 5, and 883, consideration 5).
Reference(s)
ILOAT Judgment(s): 883, 1556, 2635, 3488, 4451
Keywords:
discretion; role of the tribunal; transfer;
Judgment 4594
135th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks the cancellation of a competition in which she took part.
Consideration 8
Extract:
The Tribunal recalls that, in relation to competitions, it is not its role to replace the assessment made by the competent selection bodies with its own assessment.
Keywords:
competition; role of the tribunal; selection procedure;
Judgment 4584
135th Session, 2023
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks the cancellation of the competition organised to fill the grade P.4 post of programme coordinator that he had held in the ITU Regional Office for Africa until his retirement.
Consideration 5
Extract:
[I]t must be reiterated that, under the Tribunal’s settled case law, a staff appointment by an international organisation is a decision that lies within the discretion of its executive head and, for that reason, is subject only to 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 (see, in particular, Judgments 4408, consideration 2, 4153, consideration 2, 3188, consideration 8, or 2040, consideration 5). The Tribunal will not replace the organisation’s assessment with its own in this matter (see, in particular, Judgments 4100, consideration 5, 3537, consideration 10, 2833, consideration 10(b), or 2762, consideration 17). Furthermore, where an appointment is made on the basis of a selection among candidates for a post, a complainant seeking to have the appointment set aside must demonstrate that there was a serious defect in the selection process which impacted on the outcome of the competition (see, for example, Judgments 4524, consideration 8, 4208, consideration 3, 4147, consideration 9, or 4023, consideration 2). In particular, it is not enough simply to assert that one is better qualified for the post in question than the selected candidate (see, for example, Judgments 4467, consideration 2, 4001, consideration 4, 3669, consideration 4, or 1827, consideration 6).
Reference(s)
ILOAT Judgment(s): 1827, 2040, 2762, 2833, 3188, 3537, 3669, 4001, 4023, 4100, 4147, 4153, 4208, 4408, 4467, 4524
Keywords:
appointment; competition; role of the tribunal; selection procedure;
Judgment 4579
135th Session, 2023
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to discharge him.
Consideration 4
Extract:
The Tribunal’s case law has it that disciplinary decisions are within the discretionary authority of the executive head of an international organization and are subject to limited review. The Tribunal must determine whether a discretionary decision was taken with authority, was in regular form, whether the correct procedure was followed and, as regards its legality under the organization’s own rules, whether the organization’s decision was based on an error of law or fact, or whether essential facts had not been taken into consideration, or again, whether conclusions which are clearly false had been drawn from the documents in the dossier, or finally, whether there was a misuse of authority (see Judgment 3297, consideration 8, quoting Judgment 191). Additionally, the Tribunal shall not interfere with the findings of an investigative body in disciplinary proceedings unless there was a manifest error (see Judgments 4444, consideration 5, and 4065, consideration 5).
Reference(s)
ILOAT Judgment(s): 191, 3297, 4065, 4444
Keywords:
disciplinary procedure; discretion; role of the tribunal;
Judgment 4564
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for the 2008-2009 exercise.
Consideration 2
Extract:
[T]he Tribunal observes that, in requesting that the Tribunal should itself determine the new ratings to be awarded under the various headings of the staff report concerned, the complainant plainly misunderstands the nature of the review with which the Tribunal is tasked. It is not for the Tribunal, whose role is not to supplant the administrative authorities of an international organisation, to conduct an assessment of an employee’s merits instead of the competent reporting officer or the various supervisors and appeals bodies which may be called upon to revise that assessment. Consequently, as it is framed, the request for the staff report concerned to be amended can only be dismissed (see, to that effect, Judgment 4258, considerations 2 and 3, and the case law cited therein).
The Tribunal may only set aside that staff report at the same time as the impugned decision and remit to the EPO the task of reviewing the assessment concerned in light of the grounds of its judgment, if it considers it necessary to make such an order within the limits of the restricted power of review which the Tribunal may exercise in this area [...].
Reference(s)
ILOAT Judgment(s): 4258
Keywords:
rating; role of the tribunal;
Considerations 3 and 8
Extract:
As the Tribunal has repeatedly held, assessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority. Regarding the rating of EPO employees, those criteria are the more stringent because the Office has a procedure for conciliation on staff reports and the Service Regulations entitle officials to appeal to a joint body whose members are directly familiar with the workings of the Office (see, for example, Judgments 1688, consideration 5, 3062, consideration 3, 3228, consideration 3, 3268, consideration 9, 3692, consideration 8, and 4258, consideration 2).
[T]he authors of the contested staff report cannot be said to have drawn clearly mistaken conclusions from the facts or failed to take account of a material fact – bearing in mind that, under the [...] case law, it is not for the Tribunal to further review the assessment of the complainant’s merits made by the authorities of the Office.
Reference(s)
ILOAT Judgment(s): 1688, 3062, 3228, 3268, 3692, 4258
Keywords:
conciliation; discretion; rating; role of the tribunal;
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