Discretion (547, 548, 549, 550, 551,-666)

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• Judgment 4897

  
  138th Session, 2024
  European Patent Organisation
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges her appraisal report for 2018.

  Consideration 16

  Extract:

  [L]a requérante fait valoir que l’échelle d’appréciation à quatre degrés ainsi mise en application ne permettrait pas d’évaluer les fonctionnaires avec autant de finesse que le barème de notation à huit niveaux utilisé dans le système d’évaluation antérieur […] la fixation de telles grilles d’évaluation procède de choix d’opportunité relevant du pouvoir discrétionnaire de l’Organisation, dont – mise à part l’hypothèse extrême, qui ne se rencontre pas ici, où il aurait été fait un usage manifestement abusif de ce pouvoir – il n’appartient pas au Tribunal de connaître.

  Keywords:

  discretion; performance report; rating;
  

  
  
  

• Judgment 4895

  
  138th Session, 2024
  European Patent Organisation
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the date of his promotion with retroactive effect and seeks promotion from an earlier date.

  Consideration 3

  Extract:

  It should be recalled that the Tribunal has consistently held that international organizations enjoy wide discretion in relation to the promotion of staff and that it therefore exercises only a limited power of review in this area. The Tribunal will not interfere unless the impugned decision was taken without authority; if it was based on an error of law or fact, some material fact was overlooked, or a plainly wrong conclusion was drawn from the facts; if it was taken in breach of a rule of form or of procedure; or if there was an abuse of authority (see, in particular, Judgments 4391, consideration 4, and 4290, consideration 8). Furthermore, the Tribunal has held that, since the assessment of a candidate for promotion involves a value judgement, it is not its role to interfere in this decision-making process unless it is seriously flawed (see, in particular, Judgments 4391, consideration 4, 4290, consideration 8, 4066, consideration 3, and 1827, consideration 6).

  Reference(s)

  ILOAT Judgment(s): 1827, 4066, 4290, 4391
  

  Keywords:

  discretion; judicial review; promotion; work appraisal;
  

  Judgment keywords

  Keywords:

  applicable law; competence of tribunal; complaint dismissed; discretion; internal appeal; internal appeals body; judicial review; oral proceedings; order; promotion; retroactivity; right to be heard; work appraisal;
  

  
  
  

• Judgment 4881

  
  138th Session, 2024
  United Nations Educational, Scientific and Cultural Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges his change of immediate supervisor.

  Considerations 3-5

  Extract:

  Article II of the Statute of the Tribunal provides, in paragraphs 1 and 5, that the Tribunal shall be competent to hear complaints alleging non-observance, in substance or in form, of the terms of an official’s appointment and of the provisions of the staff regulations of the organisation that employs her or him. As the Tribunal has repeatedly stated in its case law, it may be inferred from these provisions that, for a complaint to be receivable, among other requirements, the staff member must have a cause of action (see, for example, Judgments 4337, consideration 6, 4296, consideration 6, 4145, consideration 5, or 3426, consideration 16).
  A cause of action may be recognised only if the decision challenged by that official adversely affects her or him (see, in particular, Judgments 4322, considerations 8 and 9, 3198, consideration 13, 2952, consideration 3, and 1852, considerations 2 and 3).
  However, the Tribunal finds that the complainant has no such cause of action in the present case.
  It is well established in the case law that an international organisation has broad discretion over the organisation of its services and the Tribunal cannot judge the wisdom of measures that it deems necessary to adopt in this regard (see, for example, Judgments 3362, consideration 13, 2856, consideration 9, 2510, consideration 10, or 1131, consideration 5). As the Organization correctly points out, a decision which – like the decision challenged in the present case –determines the reporting line of staff members belonging to a given category or service is a measure of this type and therefore falls within the scope of that case law.
  It is also a general rule that an organisation’s staff members are, in the performance of their duties, placed in a position of hierarchical subordination to its executive head and the various supervisors to whom they report.[...]
  [S]taff members cannot ordinarily be allowed the opportunity to challenge measures determining their reporting lines or the choice of persons designated to exercise supervisory functions in their respect. It is the organisation’s prerogative to take such decisions and they cannot therefore be considered to adversely affect those staff members.
  Admittedly, under the Tribunal’s case law, as an exception to what has just been said, there are two particular situations in which a staff member may be considered to have a cause of action in challenging decisions of this type. The first is where the contested decision has a direct adverse impact on the rights conferred by that staff member’s terms of appointment (see in particular, for the use of this criterion in the similar context of criticism of a measure falling within an organisation’s management policy, Judgment 3376, consideration 3). The second is where the decision in question involves a manifest perversity that renders her or his challenge lawful (according to the criterion established by the Tribunal in Judgment 4322, consideration 9, in a situation that may be transposed to this area).
  However, neither of these situations arises in the present case.

  Reference(s)

  ILOAT Judgment(s): 1131, 1852, 2510, 2856, 2952, 3198, 3362, 3376, 3426, 4145, 4296, 4322, 4337
  

  Keywords:

  cause of action; discretion; judicial review;
  

  
  
  

• Judgment 4877

  
  138th Session, 2024
  United Nations Educational, Scientific and Cultural Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the non-renewal of his temporary appointment.

  Consideration 2

  Extract:

  It must be recalled that the Tribunal has consistently held that the decision not to renew the appointment of a staff member of an international organisation lies within the discretion of its executive head and is therefore subject to only 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 was 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 abuse of authority (see, for example, Judgments 4654, consideration 16, 4172, consideration 5, 2148, consideration 23, or 1052, consideration 4). That is, a fortiori, the situation in a case such as this where the dispute concerns the non-renewal of a temporary appointment which expressly stated that the appointee was not guaranteed any renewal or conversion of his contract into any other type of contract with UNESCO.
  Nonetheless, under the Tribunal’s case law applicable to contractual relationships in general, a non-renewal decision must also be based on objective, valid reasons, and not on arbitrary or irrational ones (see, in particular, Judgments 4809, consideration 10, 4654, consideration 16, 4495, consideration 15, 3769, consideration 7, 3353, consideration 15, 2708, consideration 12, 1154, consideration 4, and 1128, consideration 2). Those reasons must also be communicated to the staff member concerned (see, in particular, Judgments 4809, consideration 10, 3914, consideration 14, and 3444, consideration 8), although they need not necessarily appear in the decision itself (see, to that effect, Judgments 4368, consideration 15, 3914, consideration 15, and 1750, consideration 6).

  Reference(s)

  ILOAT Judgment(s): 1052, 1128, 1154, 2148, 2708, 3353, 3444, 3769, 3914, 4172, 4368, 4495, 4654, 4809
  

  Keywords:

  discretion; non-renewal of contract; role of the tribunal;
  

  
  
  

• Judgment 4867

  
  138th Session, 2024
  World Health Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the determination of her leave status during her absence from work as well as the decision, taken as a result of her internal appeal, not to award her moral damages and to grant her up to 2,500 Swiss francs in legal costs.

  Consideration 7

  Extract:

  Decisions regarding special leave are discretionary and, thus, they are subject to only limited review and can be set aside only if they have been taken without authority or in breach of the rules of form or procedure, if they are based on an error of fact or law or have overlooked essential facts, if clearly mistaken conclusions have been drawn from the facts or if there is an abuse of authority (see Judgments 4750, consideration 9, and 4101, consideration 8).

  Reference(s)

  ILOAT Judgment(s): 4101, 4750
  

  Keywords:

  discretion; judicial review; special leave;
  

  
  
  

• Judgment 4856

  
  138th Session, 2024
  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 for misconduct.

  Consideration 19

  Extract:

  In his internal appeal, the complainant submitted that the measure of dismissal was harsh and disproportionate, primarily because in imposing it, WFP did not take into consideration his “long and distinguished service” with it. He also submitted that the measure had been imposed on an improper evidentiary basis, which he repeats before the Tribunal. The Appeals Committee concluded that the measure of dismissal was proportionate to the nature of the misconduct the complainant committed, with which conclusion the Director-General concurred in the impugned decision, noting that in imposing that measure, he had taken into account the complainant’s service but had decided that the imposition of a less severe measure was not warranted having regard to the totality of the circumstances, including the public nature of the complainant’s actions and his position. The Tribunal is satisfied that this determination was open to the Director-General in the circumstances of the case and discerns no manifest error in that determination. It therefore rejects the complainant’s claim that the disciplinary measure of dismissal was not proportionate.

  Keywords:

  aggravating circumstances; disciplinary measure; discretion; misconduct; mitigating circumstances; proportionality;
  

  Consideration 18

  Extract:

  Regarding the disciplinary measure imposed on the complainant, the general principle in the Tribunal’s case law is that the severity of the sanction that is imposed on a staff member of an international organization whose misconduct has been established is in the discretion of the decision-making authority, who must however exercise it in observance of the rule of law, particularly the principle of proportionality (see, for example, Judgments 3953, consideration 14, and 3640, consideration 29).

  Reference(s)

  ILOAT Judgment(s): 3640, 3953
  

  Keywords:

  disciplinary measure; discretion; misconduct; proportionality;
  

  
  
  

• Judgment 4851

  
  138th Session, 2024
  Food and Agriculture Organization of the United Nations
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to terminate her appointment at the end of the probationary period.

  Considerations 4 and 9

  Extract:

  Turning to the merits of the complaint, it should be recalled that, according to the Tribunal’s well-settled case law, the purpose of probation is to permit an organization to assess the probationer’s suitability for a position, and, accordingly, an organization’s exercise of its discretion regarding decisions concerned with probationary matters, including the confirmation of appointment, the extensions of a probationary period, and the identification of its own interests and requirements, ought to be accorded a high degree of deference. However, a decision not to confirm a probationer’s appointment may be set aside if it was made in breach of the probationer’s contract, of the organization’s own regulations and rules, or of applicable general principles of law as enunciated by the Tribunal. The general principles are intended to ensure that an international organization acts in good faith and honours its duty of care towards probationers and respects their dignity (see, for example, Judgment 4481, considerations 3 and 4, citing Judgment 3440, consideration 2). The Tribunal has also stated that, in the course of making the assessment, an organization must establish clear objectives against which performance will be assessed, provide the necessary guidance for the performance of the duties, identify in a timely manner the unsatisfactory aspects of the performance so that remedial steps may be taken, and give a specific warning where continued employment is in jeopardy (see, for example, Judgments 4748, consideration 8, 4450, consideration 3, and 4282, consideration 3).
  […]
  The Tribunal is satisfied that the Organization’s decision not to confirm the complainant’s appointment, based on unsatisfactory performance at the end of the probationary period, is justified and in accordance with its own rules […]. The PIP and its content clearly indicated the concerns of the complainant’s supervisors and identified the unsatisfactory aspects of her performance in a timely manner so that remedial steps could be taken. The PIP also showed that the complainant was offered training opportunities, regular guidance and support to address the deficiencies. […]
  
  In any event, considering that the complainant had been informed, on several occasions, about not achieving the objectives, she must have been aware that the failure to make the necessary improvements regarding her performance at the level expected of her post by the PIP’s specified date of 20 February 2017 could likely result in her appointment not being confirmed at the end of the probationary period. Unfortunately, she did not make the requisite improvements.

  Reference(s)

  ILOAT Judgment(s): 3440, 4282, 4450, 4481, 4748
  

  Keywords:

  discretion; probationary period; role of the tribunal;
  

  
  
  

• Judgment 4849

  
  138th Session, 2024
  World Intellectual Property Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the decision not to convert his fixed-term appointment into a continuing or permanent appointment.

  Consideration 5

  Extract:

  The Organization is correct in taking the position that there was no right to have a fixed-term appointment as a WIPO staff member converted to either a continuing or permanent appointment. Staff Regulation 4.17, which concerns the grant of a fixed-term appointment, provides in paragraph (f) that: “A fixed term appointment does not carry any expectancy, legal or otherwise, of renewal or conversion, irrespective of the length of service.” This is fortified by the provisions of paragraph (b) of Staff Regulation 4.18, which provides that a continuing appointment “shall be granted at the discretion of the Director General”. Paragraph (b) of Staff Regulation 4.19 is to the same effect in relation to permanent appointments. The following comments of the Tribunal in Judgment 4008, consideration 11, are apt to apply in the present case:
  “There is plainly nothing in these provisions which would entitle the complainant to have her fixed-term contract redefined. Nor is there anything in the Tribunal’s case law establishing such a right. The complainant is therefore wrong to submit that her fixed-term contract should have been redefined [...]”

  Reference(s)

  ILOAT Judgment(s): 4008
  

  Keywords:

  discretion; duration of appointment; extension of contract; fixed-term; permanent appointment; renewal of contrat;
  

  
  
  

• Judgment 4848

  
  138th Session, 2024
  World Intellectual Property Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests WIPO’s decisions (i) to advertise his post; (ii) to organise a selection process to fill his post; (iii) not to appoint him to the post without competition; (iv) to renew his fixed-term appointment for three months only; (v) to restructure his division; and (vi) to modify/redefine his post.

  Consideration 12

  Extract:

  The Tribunal is satisfied that there is no manifest error in the Appeal Board’s finding and conclusion that there was a material difference between the duties and responsibilities of the newly created position (Director of CMD) and those of the original position (Director of CID) as a result of the redefined organizational context, warranting advertising for the post of Director of CMD. Therefore, the Director General’s decision to extend the complainant’s contract by three months only in the soon to be abolished position of Director of CID was taken in proper exercise of his discretion.

  Keywords:

  abolition of post; difference; discretion; duration of appointment; extension of contract; manifest error; post description; renewal of contrat; reorganisation; title of post;
  

  Consideration 8

  Extract:

  The other and related decisions apparent from the letter of 31 January 2018 were the decisions to offer the complainant a three-month extension of his fixed-term appointment and to advertise the position of Director of the (about to be created) CMD. In his pleas, the complainant challenges the creation of this position contending, amongst other things, it was not materially different to the position he then formally occupied and was the product of a reorganisation which was illusory rather than substantial. It is unnecessary to repeat the various ways this is put by the complainant. However, mention should be made of a submission, which is tantamount to an allegation that the reorganisation was not a bona fide exercise of an undoubtedly wide discretionary power the executive head of an international organisation has to institute administrative and other structural changes within the organisation with consequential effects on existing posts, including their redefinition or abolition (see, for example, Judgments 4599, considerations 11 and 12, 4353, consideration 7, 3238, consideration 7, and 3169, consideration 7). This is, in substance, an allegation of bad faith. However, bad faith may not be presumed, and the burden of proof is on the party that pleads it (see Judgments 4682, consideration 3, 4353, consideration 12, and 2800, consideration 21). In the present case, there is not a scintilla of evidence that the reorganisation decision did not involve a bona fide exercise of the wide discretionary power of the executive head. This plea is unfounded.

  Reference(s)

  ILOAT Judgment(s): 2800, 3169, 3238, 4353, 4599, 4682
  

  Keywords:

  abolition of post; bad faith; burden of proof; difference; discretion; duration of appointment; extension of contract; fixed-term; post description; renewal of contrat; reorganisation; title of post;
  

  
  
  

• Judgment 4844

  
  138th Session, 2024
  International Criminal Police Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to suppress his post.

  Consideration 3

  Extract:

  The Tribunal has consistently held that a decision concerning the restructuring of an international organisation’s services, including one involving the abolition of a post, lies at the discretion of the executive head of the organisation and is therefore subject to only limited review. The Tribunal must verify whether this decision was taken in accordance with the rules on competence, form or procedure, whether it involves an error of fact or law, whether it constituted misuse of authority, whether it failed to take account of material facts or whether it draws clearly incorrect conclusions from the evidence (see, for example, Judgments 4139, consideration 2, 4099, consideration 3, 3582, consideration 6, 2933, consideration 10, 2510, consideration 10, and 1131, consideration 5).

  Reference(s)

  ILOAT Judgment(s): 1131, 2510, 2933, 3582, 4099, 4139
  

  Keywords:

  abolition of post; discretion; reorganisation; role of the tribunal;
  

  
  
  

• Judgment 4842

  
  138th Session, 2024
  International Criminal Police Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the application to her salary of the new salary scale for 2018.

  Considerations 10-11

  Extract:

  [T]he Tribunal recalls that the principles governing the limits on the discretion of international organizations to set adjustments in staff pay are clearly established in its case law. The following has been stated in Judgment 1821, consideration 7:
  “Those principles may be concisely stated as follows:
  (a) An international organisation is free to choose a methodology, system or standard of reference for determining salary adjustments for its staff provided that it meets all other principles of international civil service law: Judgment 1682 [...] in 6.
  (b) The chosen methodology must ensure that the results are ‘stable, foreseeable and clearly understood’: Judgments 1265 [...] in 27 and 1419 [...] in 30.
  (c) Where the methodology refers to an external standard but grants discretion to the governing body to depart from that standard, the organisation has a duty to state proper reasons for such departure: Judgment 1682, again in 6.
  (d) While the necessity of saving money may be one valid factor to be considered in adjusting salaries provided the method adopted is objective, stable and foreseeable (Judgment 1329 [...] in 21), the mere desire to save money at the staff's expense is not by itself a valid reason for departing from an established standard of reference: Judgments 1682 in 7 and 990 [...] in 6.”
  [...]
  The decision in this respect to apply the inflation rate observed in France at the same time can, further, be viewed as enabling the achievement of stable, predictable and transparent results.

  Reference(s)

  ILOAT Judgment(s): 990, 1265, 1329, 1419, 1682, 1821
  

  Keywords:

  adjustment; discretion; methodology; reckoning; salary; scale;
  

  
  
  

• Judgment 4841

  
  138th Session, 2024
  International Organization for Migration
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decisions to abolish the post she used to hold and not to renew her contract beyond 31 December 2020.

  Consideration 4

  Extract:

  [T]he Tribunal does not rule on the appropriateness of a restructuring process, unless and until it negatively affects a staff member in breach of staff rules and regulations. A line must be drawn between restructuring directions and decisions, which fall within the discretion of an organization, and individual decisions adopted as a consequence of a restructuring process. The Tribunal will assess whether such individual decisions comply with staff rules and regulations and the Organization’s duty of care. In the present case, there is no evidence that the Organization did not comply with rules and principles concerning the duty of care towards staff in case of restructuring exercises.

  Keywords:

  discretion; duty of care; judicial review; reorganisation;
  

  
  
  

• Judgment 4835

  
  138th Session, 2024
  International Federation of Red Cross and Red Crescent Societies
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to rescind an offer of employment that had been extended to him, on the basis that he had been disciplined for sexual misconduct.

  Considerations 8-10

  Extract:

  At the time when the […] rescission decision was made, the complainant had been sanctioned twice for breaches of the Code of Conduct and Anti-Harassment Guidelines. Before the 1 May 2020 final letter of warning which was eventually set aside, the complainant had received, on 29 July 2019, a first warning letter, following a preliminary assessment which concluded that he “had failed to accept a female subordinate’s repeated requests to end their personal relationship and had continued to make unwanted contact attempts of a personal or intimate nature, which appeared to have made the female subordinate in question uncomfortable and to have created an offensive working environment.” Therefore, the mention of “reference checks [...] [which] revealed that [the complainant] ha[d] been sanctioned for sexual misconduct” in the […] rescission decision can be regarded as covering the 29 July 2019 warning letter issued to the complainant, which alone provided a sufficient legal basis for IFRC to decide to rescind the conditional employment offer that had been extended to him on 26 June 2020. […] The complainant’s argument […] that a warning letter cannot be used to rescind an employment offer since it is “the second least serious disciplinary sanction open to the Secretary General” is also unfounded. The Tribunal considers that the complainant’s conduct underlying the 29 July 2019 warning letter is likely to have compromised the trust between him and the Federation, regardless of the type of disciplinary measure which was ultimately imposed […] [T]he Federation withdrew the conditional offer of employment based on a reference check revealing that the complainant had been sanctioned for sexual misconduct, which it was entitled to do as part of the exercise of its discretionary power.

  Keywords:

  appointment; conduct; disciplinary measure; discretion; offer withdrawn; sexual harassment;
  

  Consideration 2

  Extract:

  [T]he Tribunal has consistently stated, in consideration 7 of Judgment 4412, for example, that the appointment by an international organization of a candidate to a position is a decision that lies within the discretion of its executive head. It is subject to limited review and may be set aside only if it was taken without authority, or in breach of a rule of form or 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.

  Reference(s)

  ILOAT Judgment(s): 4412
  

  Keywords:

  appointment; discretion; judicial review; offer withdrawn;
  

  
  
  

• Judgment 4834

  
  138th Session, 2024
  International Federation of Red Cross and Red Crescent Societies
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the non-extension of his fixed-term appointment.

  Consideration 9

  Extract:

  The Tribunal notes that in its report, the Commission correctly referred, among other things, to Judgment 3163, in which the Tribunal considered a contention that alleged lack of funding for the position of the complainant in that case was due to the diversion of funds for that position, and although funds could have been available, the organization chose for a dubious reason not to use them. In consideration 8, the Tribunal stated the following, and that reasoning can be applied to the present case: “[…] It is unnecessary to descend into greater detail about whether funds were or were not available to fund the complainant’s position beyond the beginning of 2010. That is because this Tribunal has set its face against assessing the exercise of a discretionary power, such as the power not to renew a fixed-term contract, unless it is demonstrated that the competent body acted on some wrong principle, breached procedural rules, overlooked some material fact or reached a clearly wrong conclusion (see, for example, Judgments 1044, under 3, 1262, under 4, and 2975, under 15). The substance of the complainant’s case on this issue is that other decisions could have been made which would have resulted in funding being available for the position. The error of fact identified in the complainant’s submissions does not involve the identification of a material fact assumed by the decision-maker to exist, which did not exist. Rather, she identifies facts which would sustain a decision other than the decision actually made. To impugn the exercise of a discretionary decision-making power by reference to, and based on, the factual matrix in which the decision was made, a complainant must demonstrate something more than that other decisions might reasonably have been made on the known facts. It is necessary to establish that the exercise of the discretionary power miscarried because the decision-maker was led into error by proceeding on a misunderstanding about what the material facts were. As the complainant has failed to do so, this plea must be rejected.”

  Reference(s)

  ILOAT Judgment(s): 1044, 1262, 2975, 3163
  

  Keywords:

  budgetary reasons; discretion; fixed-term; judicial review; non-renewal of contract;
  

  
  
  

• Judgment 4833

  
  138th Session, 2024
  International Federation of Red Cross and Red Crescent Societies
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the decision setting aside the disciplinary measure that had been imposed on him due to a procedural flaw, reopening the investigation by providing him with all the evidence gathered as part of the investigation and allowing him to comment on it, and declining to award him moral damages.

  Consideration 3

  Extract:

  The Secretary General accepted all relief the Appeals Commission recommended the complainant be awarded, except moral damages. Thus, this complaint raises a cause of action only in relation to that issue. In this respect, the Secretary General was entitled to exercise his discretionary power to refuse to accept the recommendation to award moral damages. […] His decision in this respect was not unlawful. Accordingly, there is no basis for the Tribunal to award moral damages.

  Keywords:

  cause of action; discretion; moral damages;
  

  
  
  

• Judgment 4832

  
  138th Session, 2024
  International Telecommunication Union
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to impose on her the disciplinary sanction of demotion by two grades.

  Considerations 3-4

  Extract:

  To start with, it is convenient to recall the Tribunal’s well-settled case law on disciplinary decisions. In Judgment 4745, consideration 5, the Tribunal aptly wrote the following in this regard:
  “[Disciplinary] decisions fall within the discretionary authority of an international organization and are subject to limited review. The Tribunal must determine whether or not 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 whether conclusions which are clearly false had been drawn from the documents in the file, or finally, whether there was a misuse of authority. Additionally, the Tribunal shall not interfere with the findings of an investigative body in disciplinary proceedings unless there was a manifest error (see, for example, Judgment 4579, consideration 4, and the case law cited therein).”
  (See also Judgment 4764, consideration 8.)
  Among the many pleas entered by the complainant in support of her complaint, there are four which, since they relate to procedural errors or errors of law, fall within the limited scope of the Tribunal’s power of review defined above and are decisive for the outcome of this dispute. These pleas pertain to the breach of the complainant’s due process rights, to the lack of sufficient motivation of the impugned decision, to an error of law in the assessment of the alleged serious misconduct and gross negligence findings, and to a lack of proportionality of the sanction imposed.”

  Reference(s)

  ILOAT Judgment(s): 4579, 4745, 4764
  

  Keywords:

  disciplinary procedure; discretion; role of the tribunal;
  

  
  
  

• Judgment 4831

  
  138th Session, 2024
  International Telecommunication Union
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the rejection of his claim for compensation for service-incurred illness.

  Consideration 4

  Extract:

  Consistent precedent, contained, for example, in consideration 8 of Judgment 3361, states that the Tribunal cannot substitute its own views for the medical opinions on which an administrative decision, such as the present one, is based. The Tribunal is, however, fully competent to assess whether the procedure that has been followed was correctly carried out, especially as regards respect for the adversarial principle or the right to be heard, and to examine whether the reports used as the basis for that administrative decision contain any substantive error or inconsistency, overlook essential facts or draw erroneous conclusions from the evidence (see also Judgments 3994, consideration 5, 3689, consideration 3, 2361, consideration 9, and 1284, consideration 4).

  Reference(s)

  ILOAT Judgment(s): 2361, 3361, 3689, 3994
  

  Keywords:

  discretion; medical opinion; role of the tribunal;
  

  
  
  

• Judgment 4825

  
  138th Session, 2024
  International Criminal Court
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to reject his request for post classification.

  Judgment keywords

  Keywords:

  complaint dismissed; discretion; reclassification;
  

  
  
  

• Judgment 4819

  
  138th Session, 2024
  European Organisation for the Safety of Air Navigation
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to place him on “administrative leave” as a consequence of the structural reorganization of the Eurocontrol Agency, the Organisation’s secretariat, which led to the abolition of his functions and the launch of a reassignment procedure, as well as the decision to reject his allegations of moral harassment.

  Consideration 6

  Extract:

  À titre liminaire, il convient de rappeler qu’il est de jurisprudence constante que les décisions relatives à la restructuration d’une organisation internationale, y compris en matière de suppression de poste, relèvent du pouvoir d’appréciation du chef exécutif de celle-ci et ne peuvent faire l’objet, en conséquence, que d’un contrôle restreint. Ainsi, le Tribunal vérifiera si ces décisions sont prises dans le respect des règles de compétence, de forme ou de procédure, si elles ne reposent pas sur une erreur de droit ou de fait, ou si elles ne sont pas entachées de détournement de pouvoir. Le Tribunal ne se prononcera donc pas sur le bien-fondé d’une restructuration ou des décisions y relatives, tout comme il ne substituera pas sa propre appréciation à celle de l’organisation (voir, par exemple, les jugements 4608, au considérant 7, 4405, au considérant 2, 4180, au considérant 3, ou 4004, au considérant 2, et la jurisprudence citée). Le Tribunal a cependant considéré que toute suppression de poste doit être justifiée par des raisons objectives et ne saurait avoir pour but dissimulé d’éloigner du service un fonctionnaire considéré comme indésirable, ce qui constituerait un détournement de pouvoir (voir les jugements 4599, au considérant 11, 4353, au considérant 6, 2830, au considérant 6 b), et 1231, au considérant 26).

  Reference(s)

  ILOAT Judgment(s): 1231, 2830, 4004, 4180, 4353, 4405, 4599, 4608
  

  Keywords:

  abolition of post; discretion; reorganisation;
  

  
  
  

• Judgment 4817

  
  138th Session, 2024
  World Trade Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant impugns a decision ordering a new investigation into her alleged misconduct and suspending the disciplinary measures pending the new investigation and a new decision in the matter. She contests this decision to the extent it maintained the finding that she committed misconduct.

  Consideration 9

  Extract:

  The complainant […] requests that the Tribunal order that the new disciplinary measure to be imposed, if any, be limited to a lesser one than that which the Director-General imposed in his original decision of 8 May 2018, pursuant to the principle of double jeopardy. The Tribunal does not have the power to make orders of this kind, nor can it limit in such a way the discretion of the Director-General to determine the appropriate disciplinary measures, if any, to be imposed, in the event that misconduct is established.

  Keywords:

  competence of tribunal; disciplinary measure; discretion; executive head; order; proportionality;
  

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