Role of the Tribunal (925,-666)
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Keywords: Role of the Tribunal
Total judgments found: 66
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Judgment 4552
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to select him for the post of director of the Language Service.
Consideration 2
Extract:
[T]he Tribunal recalls its case law under which an organisation has wide discretion in appointing or promoting staff. Such a decision is therefore subject to only limited review by the Tribunal, which will interfere only if the decision was taken without authority, 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, if a rule of form or procedure was breached or if there was abuse of authority (see, in particular, Judgments 2060, consideration 4, 2457, consideration 6, 2834, consideration 7, and 4019, consideration 2).
Reference(s)
ILOAT Judgment(s): 2060, 2457, 2834, 4019
Keywords:
appointment; discretion; role of the tribunal; selection procedure;
Judgment 4543
134th Session, 2022
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her performance evaluation for 2016.
Consideration 4
Extract:
[T]he Tribunal recalls that under its settled case law, 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. The Tribunal will set aside a performance evaluation report only if there is a formal or procedural flaw, a mistake of fact or law, or neglect of some material fact, or misuse of authority or an obviously wrong inference drawn from the evidence (see, in particular, Judgments 3692, consideration 8, 3842, consideration 7, and 4010, consideration 5).
Reference(s)
ILOAT Judgment(s): 3692, 3842, 4010
Keywords:
discretion; performance; role of the tribunal;
Judgment 4529
134th Session, 2022
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests WHO’s decision to select Ms V. for the post of Proofreader (Spanish), at grade G-4, in WHO’s Headquarters’ Word Processing Centre.
Consideration 4
Extract:
According to the Tribunal’s well-established case law, in matters of appointment through competition the Tribunal has limited power to review a contested selection, as explained, for instance, in Judgment 3652, consideration 7 […].
Reference(s)
ILOAT Judgment(s): 3652
Keywords:
role of the tribunal; selection procedure;
Judgment 4524
134th Session, 2022
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to appoint, as a development reassignment, Ms V.M. to the post of Client Relationship Manager.
Consideration 8
Extract:
The Tribunal’s case law has it that a staff appointment by an international organisation is a decision that lies within the discretion of its executive head and is subject to only limited review. Such a decision 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. Nevertheless, anyone who applies for a post to be filled by some process of selection is entitled to have her or his application considered in good faith and in keeping with the basic rules of fair and open competition. That is a right which every applicant must enjoy, whatever her or his hope of success may be. An organisation must abide by the rules and the general precepts of the case law on selection, and, when the process proves to be flawed, the Tribunal can quash any resulting appointment, albeit on the understanding that the organisation must ensure that the successful candidate is shielded from any injury which may result from the cancellation of her or his appointment, which she or he accepted in good faith. A complainant must demonstrate that there was a serious defect in the selection process which impacted on the consideration and assessment of her or his candidature. It is not enough simply to assert that one is better qualified than the selected candidate (see, for example, Judgments 4023, consideration 2, and 3669, consideration 4).
Reference(s)
ILOAT Judgment(s): 3669, 4023
Keywords:
appointment; discretion; role of the tribunal; selection procedure;
Judgment 4519
134th Session, 2022
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to suspend her without pay.
Consideration 2
Extract:
According to the Tribunal’s case law, the suspension of a staff member is an interim measure which need not necessarily be followed by a substantive decision to impose a disciplinary sanction (see Judgments 1927, consideration 5, and 2365, consideration 4(a)). 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 organisation’s executive head. It is subject therefore to only limited review by the Tribunal and will not be set aside unless 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 aforementioned Judgment 2365, consideration 4(a),
and Judgments 2698, consideration 9, 3037, consideration 9, and 4452, consideration 7).
Reference(s)
ILOAT Judgment(s): 1927, 2365, 2698, 3037, 4452
Keywords:
proportionality; role of the tribunal; suspension;
Judgment 4515
134th Session, 2022
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the conversion of his suspension with pay into a suspension without pay pending an investigation for harassment undertaken against him.
Consideration 4
Extract:
The power to suspend a staff member under Staff Rule 10.1.3 is within the discretion of the Secretary-General. 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 (see, for example, Judgments 2365, consideration 4(a), 2698, consideration 9, 3037, consideration 9, and 4452, consideration 7). 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 him (see Judgments 1927, consideration 5, and 2365, consideration 4(a)). 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. In order for a suspension measure to be taken, the official must be accused of serious misconduct.
Reference(s)
ILOAT Judgment(s): 1927, 2365, 2365, 2698, 3037, 4452
Keywords:
discretion; proportionality; role of the tribunal; suspension;
Judgment 4507
134th Session, 2022
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision not to renew his fixed-term appointment.
Consideration 5
Extract:
It is well settled in the Tribunal’s case law that an organisation enjoys wide discretion in deciding whether or not to renew a fixed-term appointment. The exercise of such discretion is subject to only limited review as the Tribunal will respect the organisation’s freedom to determine its own requirements and the career prospects of staff. However, the exercise of such discretion is not unfettered and the Tribunal will set the decision aside if it was taken without authority, or in breach of a rule of form or of procedure, or if it rested on an error of fact or of law, or if some essential fact was overlooked, or if there was abuse of authority, or if clearly mistaken conclusions were drawn from the evidence (see Judgments 3948, consideration 2, 4062, consideration 6, 4146, consideration 3, 4231, consideration 3, and 4363, consideration 10).
These grounds of review are applicable notwithstanding that the Tribunal has consistently stated that an employee who is in the service of an international organisation on a fixed-term contract does not have a right to the renewal of the contract when it expires and the complainant’s terms of appointment contain a similar provision (see Judgments 3444, consideration 3, 3586, consideration 6, and 4218, consideration 2).
Reference(s)
ILOAT Judgment(s): 3444, 3586, 3948, 4062, 4146, 4218, 4231, 4363
Keywords:
discretion; fixed-term; non-renewal of contract; role of the tribunal;
Judgment 4505
134th Session, 2022
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the Director General’s decision to terminate his appointment at the end of his probationary period.
Consideration 3
Extract:
In its case law, the Tribunal has held that “the purpose of probation is to permit an organization to assess the probationer’s suitability for a position” (see Judgment 4212, consideration 4). The Tribunal has also pointed out that an organisation enjoys wide discretion with regard to probation and that, for this reason, decisions taken in this context are subject to only limited review (see, for example, Judgment 4481, consideration 3). Thus, under the Tribunal’s settled case law, a decision of this kind will only be set aside if it is taken without authority or in breach of a rule of form or of procedure, or if it is based on a mistake of fact or of law, or if some essential fact was overlooked, or if clearly mistaken conclusions were drawn from the facts, or if there was an abuse of authority. Moreover, where the reason given for refusal of confirmation is unsatisfactory performance, the Tribunal will not replace the organisation’s assessment with its own (see, in particular, Judgments 1418, consideration 6, 2646, consideration 5, 3913, consideration 2, and aforementioned 4212, consideration 4). In its case law, the Tribunal has also determined the principles applicable to an organisation’s obligations in respect of the probationary period. In particular, “an organisation must establish clear objectives against which performance will be assessed, provide the necessary guidance for the performance of the duties, identify in a timely fashion the unsatisfactory aspects of the performance so that remedial steps may be taken, and give a specific warning that the continued employment is in jeopardy” (see Judgments 2788, consideration 1, and aforementioned 4212, consideration 5).
Reference(s)
ILOAT Judgment(s): 1418, 2646, 2788, 3913, 4212, 4481
Keywords:
discretion; probationary period; role of the tribunal;
Judgment 4504
134th Session, 2022
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to demote her from grade P4 to grade P3 for a period of two years.
Consideration 6
Extract:
Consistent precedent has it that decisions which are made in disciplinary cases 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 decision taken by virtue of a discretionary authority was taken with authority, is in regular form, whether the correct procedure has been followed and, as regards its legality under the organisation’s own rules, whether the Administration’s decision was based on an error of law or fact, or whether essential facts have not been taken into consideration, or again, whether conclusions which are clearly false have been drawn from the documents in the file, or finally, whether there has been a misuse of authority. Additionally, the Tribunal will not interfere with the findings of an investigative body in disciplinary proceedings unless there is manifest error (see, for example, Judgment 4444, consideration 5).
Reference(s)
ILOAT Judgment(s): 4444
Keywords:
disciplinary measure; discretion; role of the tribunal;
Judgment 4503
134th Session, 2022
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to extend her fixed-term appointment upon its expiry.
Consideration 7
Extract:
It is well settled in the Tribunal’s case law that an organization enjoys wide discretion in deciding whether or not to renew a fixed-term appointment. The exercise of such discretion is subject to only limited review as the Tribunal respects the organization’s freedom to determine its own requirements and the career prospects of staff. However, the discretion is not unfettered and the Tribunal will set aside the decision if it was taken without authority or in breach of a rule of form or of procedure, or if it rested on an error of fact or of law, or if some essential fact was overlooked, or if there was abuse of authority, or if clearly mistaken conclusions were drawn from the evidence (see Judgments 3948, consideration 2, 4062, consideration 6, 4146, consideration 3, 4231, consideration 3, 4363, consideration 10).
These grounds of review are applicable notwithstanding that the Tribunal has consistently stated, in Judgment 3444, consideration 3, for example, that an employee who is in the service of an international organization on a fixed-term contract does not have a right to the renewal of the contract when it expires and the complainant’s terms of appointment contain a similar provision (see Judgments 3586, consideration 6, and 4218, consideration 2).
Even though an organization is generally under no obligation to extend a fixed-term contract or to reassign someone whose fixed-term contract is expiring, unless it is specifically provided by a provision in the staff rules or regulations, the reason for the non-renewal must be valid (and not an excuse to get rid of a staff member) and be notified within a reasonable time (see Judgments 1128, consideration 2, 1154, consideration 4, 1983, consideration 6, 2406, consideration 14, 3353, consideration 15, 3582, consideration 9, 3586, consideration 10, 3626, consideration 12, and 3769, consideration 7).
An international organization is under an obligation to consider whether or not it is in its interests to renew a contract and to make a decision accordingly: though such a decision is discretionary, it cannot be arbitrary or irrational; there must be a good reason for it and the reason must be given (see Judgment 1128, consideration 2).
Reference(s)
ILOAT Judgment(s): 1128, 1154, 1983, 2406, 3353, 3444, 3582, 3586, 3626, 3769, 3948, 4062, 4146, 4218, 4231, 4363
Keywords:
discretion; fixed-term; non-renewal of contract; role of the tribunal;
Consideration 11
Extract:
[T]he restructuring of the [Senior Management Team] and the consequent non-renewal of the complainant’s appointment was a discretionary decision, as part of a policy to reform and restructure the management of the Organization, lawfully taken by the Director-General, within her authority. It is well settled in the Tribunal’s case law that decisions concerning restructuring within an international organization may be taken at the discretion of the executive head of the organization and are consequently subject to only limited review. Accordingly, the Tribunal will ascertain whether such decisions are taken in accordance with the relevant rules on competence, form or procedure, whether they rest upon a mistake of fact or of law or whether they constitute abuse of authority. The Tribunal will not rule on the appropriateness of a restructuring or of decisions relating to it and it will not substitute the organization’s view with its own (see, for example, Judgments 4004, consideration 2, 4139, consideration 2, 4180, consideration 3, 4405, consideration 2).
Reference(s)
ILOAT Judgment(s): 4004, 4139, 4180, 4405
Keywords:
discretion; fixed-term; non-renewal of contract; reorganisation; role of the tribunal; senior official;
Judgment 4502
134th Session, 2022
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to reclassify her post.
Consideration 7
Extract:
[T]he Tribunal will not substitute its own evaluation of the complainant’s post for the audit conducted by an expert who had the necessary training and experience to do so (see, for example, Judgments 929, consideration 5, and 2706, consideration 14). In her submissions, the complainant mainly repeats the arguments that she put forward at each step in the procedure regarding the increase and changes in the duties and responsibilities involved in her post and ultimately criticises the Organization for not accepting her version of the facts. However, the mistakes that she identifies, which tend to support the re-evaluation of the classification of her post, are insufficient to warrant a finding that the impugned decision was unlawful. As has already been stated in consideration 6,[...] it is settled case law that the Tribunal’s role is not to substitute its assessment for that of the Organization concerning the classification of a post.
The position would only be different if the file showed that the Organization had committed an obvious error of judgement when assessing the duties attached to the complainant’s post, [...]. The position would likewise be different if the file showed that an essential fact was overlooked when the decision was taken.
Reference(s)
ILOAT Judgment(s): 929, 2706
Keywords:
desk audit; post classification; role of the tribunal;
Consideration 6
Extract:
The Tribunal outlined the fundamental principles that apply in the context of post classification in Judgment 4221, consideration 11, which refers to Judgments 4000, considerations 7, 8 and 9, 3589, consideration 4, and 3764, consideration 6 [...].
Reference(s)
ILOAT Judgment(s): 3589, 3764, 4000, 4221
Keywords:
post classification; role of the tribunal;
Judgment 4496
134th Session, 2022
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant alleges that he suffered moral harassment, in particular when his end-of-service certificate was drawn up.
Consideration 12
Extract:
[I]n his submissions the complainant essentially asks the Tribunal to repeat the Advisory Board’s analysis and to substitute its own assessment of the facts for that of the Board. This misconstrues the role of the Tribunal, which, in Judgment 4344, consideration 8, pointed out:
“[...] that it is not its role to reweigh the evidence before an investigative body which, as the primary trier of facts, has had the benefit of actually seeing and hearing the persons involved, and of assessing the reliability of what they have said. For that reason, such a body is entitled to considerable deference.”
Reference(s)
ILOAT Judgment(s): 4344
Keywords:
harassment; role of the tribunal;
Judgment 4495
134th Session, 2022
Green Climate Fund
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to renew her fixed-term appointment upon its expiry.
Consideration 10
Extract:
The circumstances of this case are somewhat unusual. It is not a case in which the question of whether a senior official’s contract should be renewed or extended was being addressed against a background of stability in the most senior ranks of the organisation with settled policies including HR policies. In the present case there was a new Executive Director appointed shortly before a decision had to be made about the extension of the complainant’s contract. He was plainly focused on, amongst other things, the functioning of the HR Unit and its Head as part of his vision for the future of the organisation informed by external advice. In this respect, the answer to the question of whether the complainant’s contract should be renewed could reasonably be influenced by that vision and the views of the new Executive Director about how it might best be achieved, including his assessment of the suitability of the complainant informed by advice he had received. A substantial part of the complainant’s case is, in substance, that she was qualified to continue in the role as Head of HR even in the face of the new vision (while challenging whether in truth it was new) including demonstrating that she had the qualifications, skills and experience required of the position as set out in a vacancy notice […]. But this line of argument and analysis effectively invites the Tribunal to enter the territory which it has eschewed, namely substituting its own assessment for that of the organisation.
Keywords:
non-renewal of contract; role of the tribunal; senior official;
Consideration 15
Extract:
The obligation to give reasons for a non-renewal have been variously described as providing “valid reasons” (see Judgment 3769, consideration 7), and not “arbitrary or irrational” reasons (see Judgment 1128, consideration 2). While the reasons given in this case may be contestable, they were not of a character to sustain a conclusion they were, for example, not valid or arbitrary or irrational. As the Tribunal observed in Judgment 3586, consideration 6: “the Tribunal’s scope of review in a case such as this is limited. Firm and consistent precedent has it that an organization enjoys wide discretion in deciding whether or not to extend a fixed-term appointment. The exercise of such discretion is subject to limited review because the Tribunal respects an organization’s freedom to determine its own requirements and the career prospects of staff (see, for example, Judgment 1349, under 11). The Tribunal will not substitute its own assessment for that of the organization. A decision in the exercise of this discretion may only be quashed or set aside for unlawfulness or illegality in the sense that it was taken in breach of a rule of form or procedure; or if it is based on an error of fact or of law, if some essential fact was overlooked; or if there was an abuse or misuse of authority; or if clearly mistaken conclusions were drawn from the evidence (see, for example, Judgments 3299, under 6, 2861, under 83, and 2850, under 6).”
Reference(s)
ILOAT Judgment(s): 1128, 1349, 2850, 2861, 3299, 3586, 3769
Keywords:
discretion; fixed-term; motivation; motivation of final decision; non-renewal of contract; role of the tribunal;
Judgment 4491
133rd Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her with immediate effect for serious misconduct.
Consideration 19
Extract:
The case law of the Tribunal in a situation such as the present is clear. A staff member accused of wrongdoing is presumed to be innocent and is to be given the benefit of the doubt (see, for example, Judgment 2913, consideration 9). The burden of proof of allegations of misconduct falls on the organisation and it must be proved beyond reasonable doubt (see, for example, Judgment 4364, consideration 10). In reviewing a decision to sanction a staff member for misconduct, the Tribunal will not ordinarily engage in the determination of whether the burden of proof has been met but rather will assess whether a finding of guilt beyond reasonable doubt could properly have been made (see, for example, Judgment 4362, considerations 7 to 10).
Reference(s)
ILOAT Judgment(s): 2913, 4362, 4364
Keywords:
benefit of doubt; beyond reasonable doubt; disciplinary measure; presumption of innocence; role of the tribunal; standard of proof;
Judgment 4473
133rd Session, 2022
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to recognise his son’s condition as a “serious illness” within the meaning of the provisions governing reimbursement of medical expenses.
Consideration 13
Extract:
[I]t should be pointed out that, in Judgment 3994, the Tribunal recalls that, according to consistent precedent, it may not replace the medical findings of medical experts with its own assessment. In that judgment, the Tribunal clarifies that, although it does have full competence to say whether there was due process and to examine the medical reports on which an administrative decision is based, its role concerns situations in which a material mistake or inconsistency, a failure to consider some essential fact or a plain misreading of the evidence can be demonstrated. Moreover, in consideration 6, the Tribunal states:
“The complainant has produced no evidence in support of her claims that challenges either the lawfulness of the procedure followed during that expert assessment or the soundness of the expert’s conclusions.”
Reference(s)
ILOAT Judgment(s): 3994
Keywords:
medical opinion; role of the tribunal;
Judgment 4467
133rd Session, 2022
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the lawfulness of the recruitment process and the resulting appointment for the post of Client Relationship Manager, for which he had applied.
Consideration 2
Extract:
The Tribunal’s case law has it that a staff appointment by an international organisation is a decision that lies within the discretion of its executive head and is subject to only limited review. Such a decision 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. Nevertheless, anyone who applies for a post to be filled by some process of selection is entitled to have her or his application considered in good faith and in keeping with the basic rules of fair and open competition. That is a right which every applicant must enjoy, whatever her or his hope of success may be. An organisation must abide by the rules and the general precepts of law on selection, and, when the process proves to be flawed, the Tribunal can quash any resulting appointment, albeit on the understanding that the organisation must ensure that the successful candidate is shielded from any injury which may result from the cancellation of her or his appointment, which she or he accepted in good faith. However, as the selection of candidates is necessarily based on merit and requires a high degree of judgement on the part of those involved in the selection process, a complainant must demonstrate that there was a serious defect in the selection process which impacted on the consideration and assessment of her or his candidature. It is not enough simply to assert that one is better qualified than the selected candidate (see, for example, Judgments 4023, consideration 2, and 4001, consideration 4).
Reference(s)
ILOAT Judgment(s): 4001, 4023
Keywords:
discretion; role of the tribunal; selection procedure;
Judgment 4464
133rd Session, 2022
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the WTO’s refusal to recognise the illness from which he states he suffers as service-incurred.
Consideration 7
Extract:
[T]he Tribunal reiterates that according to consistent precedent, it may not replace the medical findings of medical experts with its own assessment, but it is required to say whether there was due process (see, for example, Judgment 3994, consideration 5). It must therefore satisfy itself that a medical board was properly constituted and followed due process.
Reference(s)
ILOAT Judgment(s): 3994
Keywords:
medical board; medical opinion; role of the tribunal;
Judgment 4462
133rd Session, 2022
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the Director-General’s decision of 2 May 2019 not to modify his performance evaluation report for 2017 and not to renew his fixed-term contract.
Consideration 18
Extract:
[T]he Tribunal reiterates that, under its case law, an employee who is in the service of an international organisation on a fixed-term contract does not have a right to the renewal of the contract when it expires (see, for example, Judgment 3444, consideration 3). It is likewise well settled in the Tribunal’s case law that “an organisation has a wide discretion in deciding whether to renew a fixed-term appointment and its right to refuse to renew can be based on unsatisfactory performance”. It follows that “such a discretionary decision can be successfully impugned [only] if it is fatally flawed by, for example, procedural defects, a failure to take account of some essential fact, abuse or misuse of authority, or if it was based on an error of fact or of law” (see Judgments 1262, consideration 4, 3586, consideration 6, 3679, consideration 10, 3743, consideration 2, and 3932, consideration 21).
The Tribunal has also consistently held that “an organisation cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules established to evaluate that performance” (see Judgment 3252, consideration 8, and the case law cited therein, Judgment 3932, consideration 21, and the case law cited therein, and Judgment 4289, consideration 7).
Reference(s)
ILOAT Judgment(s): 1262, 3252, 3444, 3586, 3679, 3743, 3932, 3932, 4289
Keywords:
discretion; fixed-term; non-renewal of contract; role of the tribunal; unsatisfactory service;
Consideration 9
Extract:
[T]he Tribunal recalls its case law in this area: “The principles governing the Tribunal’s consideration of challenges to staff performance appraisal reports are well settled. Indeed, they are discussed in Judgment 3378, consideration 6. The Tribunal recognises that such reports are discretionary and will set aside or amend a report only if there is a formal or procedural flaw, a mistake of fact or law, or neglect of some material fact, or misuse of authority, or an obviously wrong inference drawn from the evidence” (see Judgment 3842, consideration 7). The Tribunal has also held that as a rule “he who approves [a staff member’s appraisal report] will grant the reporting officer great freedom of expression. The official’s observations on the report may in some cases serve to correct any error of judgment that may have been made. It will be right not to approve a report only if the reporting officer made an obvious mistake over some important point, if he neglected some essential fact, if he was grossly inconsistent or can be shown to have been prejudiced. And he need not be deemed prejudiced just because his assessment for one period is not the same as another reporting officer’s opinion of the same official for an earlier or later period” (see Judgment 724, consideration 3; see also Judgment 2318, consideration 4).
Reference(s)
ILOAT Judgment(s): 724, 2318, 3842
Keywords:
discretion; performance evaluation; rating; role of the tribunal;
Judgment 4461
133rd Session, 2022
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the Director General’s decision to summarily dismiss him.
Consideration 5
Extract:
According to the consistent case law of the Tribunal, the burden of proof rests on an organisation to prove the allegations of misconduct beyond reasonable doubt before a disciplinary sanction can be imposed. It is equally well settled that the Tribunal will not engage in a determination as to whether the burden of proof has been met, instead, the Tribunal will review the evidence to determine whether a finding of guilt beyond reasonable doubt could properly have been made by the primary trier of fact (see, for example, Judgments 2699, consideration 9, 3882, consideration 14, 3649, consideration 14, and 4227, consideration 6). Also, a staff member accused of misconduct is presumed to be innocent (see Judgment 2879, consideration 11) and is to be given the benefit of the doubt (see Judgment 2849, consideration 16).
Reference(s)
ILOAT Judgment(s): 2699, 2849, 2879, 3649, 3882, 4227
Keywords:
disciplinary measure; presumption of innocence; role of the tribunal; standard of proof;
Judgment 4460
133rd Session, 2022
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to impose upon her the disciplinary measure of discharge after due notice.
Consideration 8
Extract:
Inasmuch as the complainant challenges a disciplinary decision, it is recalled that consistent precedent has it that such decisions are within the discretionary authority of the executive head of an international organisation and are subject to limited review. The Tribunal must determine whether a decision taken by virtue of a discretionary authority was taken with authority, is in regular form, whether the correct procedure has been followed and, as regards its legality under the organisation’s own rules, whether the Administration’s decision was based on an error of law or fact, or whether essential facts have not been taken into consideration, or again, whether conclusions which are clearly false have been drawn from the documents in the dossier, or finally, whether there has been a misuse of authority (see, for example, Judgment 3297, consideration 8).
Reference(s)
ILOAT Judgment(s): 3297
Keywords:
disciplinary measure; discretion; role of the tribunal;
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