Role of the Tribunal (925,-666)

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Keywords: Role of the Tribunal
Total judgments found: 66

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• Judgment 4455

  
  133rd Session, 2022
  World Tourism Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to suspend her pending disciplinary proceedings.

  Considerations 6-8

  Extract:

  The power to suspend is enlivened when the Secretary-General considers, in the specified circumstances, that continuation in service of the official may prejudice the service. The power is founded on the opinion of the Secretary-General on the question of prejudice.
  When the complainant was suspended with pay by memorandum dated 4 May 2018, the approach of the Secretary-General was, on its face, orthodox and in conformity with Staff Rule 29. First the Secretary-General said that a sanction was being considered and identified it as summary dismissal. Secondly the Secretary-General addressed the question of prejudice and gave a rational, albeit brief, explanation why the interests of the service may be prejudiced if the complainant continued in service.
  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, Judgment 2365, consideration 4(a)).

  Reference(s)

  ILOAT Judgment(s): 2365
  

  Keywords:

  discretion; role of the tribunal; suspension;
  

  
  
  

• Judgment 4451

  
  133rd Session, 2022
  International Fund for Agricultural Development
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant impugns the decision concerning her management-driven transfer.

  Consideration 6

  Extract:

  In respect of its consideration of the various pleas, the Tribunal wishes to begin by pointing out that, with regard to decisions to transfer, appoint, reassign or promote an international civil servant or to refuse to select her or him for a vacant post, it considers, in accordance with established case law, that such decisions lie within the discretion of the competent authority of the organisation concerned and are subject to only limited review by the Tribunal. Thus, 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. Moreover, the Tribunal will be especially wary in reviewing a transfer since it may not replace the employer’s rating of the official with its own (see, inter alia, Judgments 1556, consideration 5, and 4408, consideration 2).

  Reference(s)

  ILOAT Judgment(s): 1556, 4408
  

  Keywords:

  discretion; role of the tribunal; transfer;
  

  
  
  

• Judgment 4450

  
  133rd Session, 2022
  Pan American Health Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to terminate her appointment at the end of her probationary period for unsatisfactory performance.

  Consideration 3

  Extract:

  According to the Tribunal’s case law, international organizations have wide discretion in taking decisions concerning staff performance appraisals. Therefore, such decisions are subject to only limited review by the Tribunal, which will intervene 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 Judgments 4010, consideration 5, 4062, consideration 6, 4170, consideration 9, and 4276, consideration 7). With specific regard to probationary periods, the Tribunal has said that the purpose of probation is to permit an organization to assess the probationer’s suitability for a position, and, accordingly, a high degree of deference ought to be accorded to an organization’s exercise of its discretion regarding decisions concerned with probationary matters. In the course of making this assessment, an organization must establish clear objectives, provide the necessary guidance for the performance of the duties, identify the unsatisfactory aspects of the performance in a timely manner, so that remedial steps may be taken, and give a specific warning where continued employment is in jeopardy. Moreover, a probationer is entitled to have objectives set in advance (see Judgment 4282, considerations 2 and 3).

  Reference(s)

  ILOAT Judgment(s): 4010, 4062, 4170, 4276, 4282
  

  Keywords:

  discretion; performance evaluation; probationary period; role of the tribunal;
  

  Consideration 9

  Extract:

  The complainant contends that the objectives were fully achieved, but this is her personal opinion and it cannot substitute the one expressed by her supervisors, who are expressly qualified to make such assessments. Nor shall the Tribunal substitute its own opinion to a discretionary decision, unless it reveals flaws in fact or law that in the present case are not demonstrated.

  Keywords:

  discretion; performance report; role of the tribunal;
  

  
  
  

• Judgment 4444

  
  133rd Session, 2022
  Food and Agriculture Organization of the United Nations
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant impugns the decision to dismiss him on disciplinary grounds.

  Consideration 5

  Extract:

  [I]t is recalled that consistent precedent has it that such 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 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 Judgment 3297, consideration 8).
  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 4065, consideration 5).

  Reference(s)

  ILOAT Judgment(s): 3297, 4065
  

  Keywords:

  disciplinary measure; discretion; role of the tribunal;
  

  
  
  

• Judgment 4364

  
  131st Session, 2021
  European Patent Organisation
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the decision to impose on him the disciplinary measure of dismissal for misconduct.

  Consideration 10

  Extract:

  In Judgment 4227, consideration 6, the Tribunal said: “The role of the Tribunal in a case such as the present, in relation to the question of whether the alleged conduct took place, was summarised in Judgment 3862, consideration 20. According to the well-settled case law of the Tribunal, the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14). 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 a reasonable doubt could properly have been made by the primary trier of fact’ (see Judgment 2699, consideration 9).” Also, in Judgment 4247, consideration 12, in response to a similar argument made by the complainant in that case, the Tribunal said: “It is clear that the facts underlying the charge of misconduct are uncontroverted. The reference by the Director General to the ‘clear and convincing evidence standard’ does not detract from the fact that, in substance, the standard of beyond a reasonable doubt was met. As the assertion that [the Organization] failed to prove the complainant’s misconduct beyond a reasonable doubt is unfounded, it is rejected.” In the present case, even though the Disciplinary Committee did not expressly use the term “beyond a reasonable doubt”, the Tribunal finds that the complainant’s misconduct was in fact proven to that standard.

  Reference(s)

  ILOAT Judgment(s): 2699, 3649, 3862, 4227, 4247
  

  Keywords:

  beyond reasonable doubt; misconduct; role of the tribunal;
  

  
  
  

• Judgment 2097

  
  92nd Session, 2002
  World Health Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Considerations 10-11

  Extract:

  In respect of each short-term appointment taken up by them, [the complainants] entered into a written contract specifying the duration, remuneration, grade, step and other pertinent conditions applicable to them. They do not deny that they were paid exactly as stated in the contract documents. If the contracts are valid and enforceable and not in breach of any applicable staff rule or principle of international civil service law, the Tribunal has no power to reform them or to remake the bargain which the parties themselves have chosen to make.
  Furthermore, the complainants, having taken the benefit of the short-term appointments offered to them, have a heavy burden to overcome if they are to argue successfully that the Tribunal should now treat the contracts as being null, for it is now impossible to replace the parties in the position they were in at the time the bargain was struck. They must show either that their short-term appointments violated some fundamental and overriding principle of law or that their apparent consent thereto was vitiated.

  Keywords:

  role of the tribunal; short-term; terms of appointment;
  

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