Misuse of authority (571, 572, 927,-666)
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Keywords: Misuse of authority
Total judgments found: 156
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Judgment 4840
138th Session, 2024
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to renew her fixed-term contract due to underperformance after placing her on a three-month Performance Improvement Plan.
Consideration 8
Extract:
With respect to decisions pertaining to the non-renewal of fixed-term contracts, the Tribunal has also emphasized the limited scope of the review it can exercise. In Judgment 4146, consideration 3, it stated, in particular, the following:
“The case law of the Tribunal states that an organisation enjoys wide discretion in deciding whether or not to renew a fixed-term appointment and, a fortiori, whether to convert it into an indefinite one. Although the exercise of such discretion is not unfettered, it is subject to only limited review, as the Tribunal will respect the organisation’s freedom to determine its own requirements. Accordingly, the Tribunal will only set aside such decisions if they were taken without authority or in breach of a rule of form or of procedure, or if they 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, for example, Judgment 3772, under 5).”
Reference(s)
ILOAT Judgment(s): 3772, 4146
Keywords:
fixed-term; judicial review; limits; mistake of fact; mistake of law; mistaken conclusion; misuse of authority; non-renewal of contract;
Consideration 7
Extract:
With respect to decisions relating to performance evaluation, the Tribunal has emphasized that it has a limited power of review. For instance, in Judgment 4666, consideration 4, it recalled the following:
“[T]he Tribunal recalls first of all that, under its settled case law, the assessment of an employee’s merit during a specified period involves a value judgement and it cannot substitute its own opinion for the assessment made by the competent bodies of the qualities, performance and conduct of the person concerned. The Tribunal 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 law or of fact, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgments 4543, consideration 4, 4169, consideration 7, 4010, consideration 5, 3268, consideration 9, and 3039, consideration 7).” (See also Judgments 4713, consideration 11, and 4564, consideration 3.)
Reference(s)
ILOAT Judgment(s): 3039, 3268, 4010, 4169, 4543, 4564, 4666, 4713
Keywords:
judicial review; limits; mistake of fact; mistake of law; mistaken conclusion; misuse of authority; performance; performance evaluation;
Judgment 4696
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 to recover supposed overpayments made to him by way of expatriation allowance.
Consideration 17
Extract:
[T]he Tribunal recalls that, according to its case law, misuse of authority may not be presumed. The burden of proof is on the official who pleads it, here being the complainant (see Judgments 4552, consideration 9, and 4437, consideration 23). The Tribunal considers that no misuse of authority has been established, especially given that, in seeking to recover the contested sums, the Organisation was simply applying the provisions of the Staff Regulations which it was entitled, or indeed required, to implement.
Reference(s)
ILOAT Judgment(s): 4437, 4552
Keywords:
abuse of power; misuse of authority;
Judgment 4654
136th Session, 2023
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks a redefinition of his employment relationship and the setting aside of the decision not to renew his employment contract.
Consideration 22
Extract:
[A]s the Tribunal has repeatedly stated, abuse of authority may not be presumed and the burden of proof is on the party that pleads it (see, for example, Judgments 4283, consideration 9, 4081, consideration 19, 3543, consideration 20, and 2116, consideration 4(a)).
Reference(s)
ILOAT Judgment(s): 2116, 3543, 4081, 4283
Keywords:
misuse of authority;
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 9
Extract:
The Tribunal points out that, under its case law, misuse of authority may not be presumed and the burden of proof is on the party that pleads it (see, for example, Judgment 4283, consideration 9, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 4283
Keywords:
misuse of authority;
Judgment 4485
133rd Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: Acting in his capacity as a staff representative, the complainant challenges the decision to assign different duties and responsibilities to a Principal Director without a competitive selection process.
Consideration 6
Extract:
[A]s the complainant provides no evidence, as required by the case law, to prove that the challenged decision was based on a misuse of authority (see, for example, Judgment 3193, consideration 9) or to prove that the President exercised his discretion unlawfully under any of the other proscribed heads referred to in consideration 5 of Judgment 4240, the complaint is unfounded and will be dismissed.
Reference(s)
ILOAT Judgment(s): 3193, 4240
Keywords:
burden of proof; misuse of authority;
Judgment 4437
132nd Session, 2021
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the classification of her post following her transfer.
Consideration 23
Extract:
The Tribunal recalls that there is abuse of authority when an administration acts for reasons that are extraneous to the organisation’s best interests and seeks some objective other than those which the authority vested in it is intended to serve (see Judgments 1129, consideration 8, 2885, consideration 12, and 3902, consideration 9).
Reference(s)
ILOAT Judgment(s): 1129, 2885, 3902
Keywords:
abuse of power; misuse of authority;
Judgment 4434
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the refusal to organise a strike ballot under the new rules governing the exercise of the right to strike at the European Patent Office.
Consideration 18
Extract:
The complainants are entitled to moral damages for the decision of the President not to hold a ballot for a strike they and others called for in accordance with the provisions of Circular No. 347, which constituted an abuse of power in that the President purported to exercise a power which he did not have. The President’s conduct involved a significant and unilateral derogation of the complainants’ right to strike even as arising under the materially constraining scheme in Circular No. 347 and CA/D 5/13. These moral damages are assessed in the sum of 6,000 euros for each complainant.
Keywords:
abuse of power; misuse of authority; moral injury; right to strike; strike;
Judgment 4432
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to accept only part of the recommendations of the Appeals Committee on his appeal against the postponement of a strike ballot by the President of the European Patent Office.
Consideration 9
Extract:
[T]he complainant initially sought and still seeks moral damages. In his brief he seeks 10,000 euros moral damages “for depriving [him] of his fundamental human right to strike and taking away his fundamental right to freedom of association”. But he was not deprived of the right, at least in its entirety. There was only a delay in taking a procedural step which may have led to a strike in which the complainant would have been involved. At best for the complainant, the facts reveal the EPO failed to comply with paragraph 3 of Circular No. 347 notwithstanding that it was bound by the rules it had itself issued until it amended or repealed them (see, for example, Judgments 963, consideration 5, and 3883, consideration 20). Putting it this way is not to suggest that the non-observance was trivial. The Organisation had put in place highly contentious provisions concerning a matter of fundamental importance, namely the right to strike. It could be expected that all elements of those provisions would be followed to the letter unless there was some insuperable reason for not doing so. In this case, there was not. The President acted unilaterally and arbitrarily in breach of the scheme the Organisation had adopted and, in any event, his conduct involved an abuse of power in that he purported to exercise a power which he did not have. The complainant is entitled to moral damages which are assessed in the sum of 6,000 euros.
Reference(s)
ILOAT Judgment(s): 963, 3883
Keywords:
abuse of power; misuse of authority; moral injury; patere legem; right to strike; strike;
Judgment 4427
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to maintain his transfer to a patent examiner post.
Consideration 12
Extract:
[T]he complainant’s contention that the transfer decision was tainted by misuse of authority is unfounded. In consideration 10 of Judgment 4146, for example, the Tribunal recalled that the principle of good faith and the concomitant duty of care require international organisations to treat their staff with due consideration in order to avoid causing them undue injury. It also observed that in order for there to be misuse of authority, it must be established that the decision rested on considerations extraneous to the organisation’s interests and that the staff member alleging abuse of authority bears the burden of establishing the improper purpose for which the authority was exercised. Misuse of authority cannot be presumed. The complainant has not provided evidence, against conjecture, that shows that his transfer was based on improper purpose.
Reference(s)
ILOAT Judgment(s): 4146
Keywords:
abuse of power; burden of proof; duty of care; evidence; misuse of authority; organisation's duties;
Judgment 4382
131st Session, 2021
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the Secretary General’s decisions to set aside her 2016 performance appraisal only on the basis that it was procedurally flawed, and to insert in her personnel file the impugned decision and the report of the Appeals Commission.
Consideration 13
Extract:
The Tribunal has observed that in order for there to be misuse of authority, it must be established that the decision rested on considerations extraneous to the organisation’s interests and that the staff member alleging abuse of authority bears the burden of establishing the improper purpose for which the authority was exercised (see, for example, Judgment 4146, under 10).
Reference(s)
ILOAT Judgment(s): 4146
Keywords:
abuse of power; misuse of authority;
Judgment 4370
131st Session, 2021
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to retire him at the end of the month in which he reached the age of 62, even though he had not completed the five years of contributions required for the payment of a retirement pension by the United Nations Joint Staff Pension Fund.
Consideration 12
Extract:
[I]nsofar as the impugned decision merely applies the normal rule of mandatory retirement for staff members who have reached the age limit, it cannot be considered that such a decision involves a misuse of authority or that it constitutes a measure which discriminates against the complainant.
Keywords:
abuse of power; discrimination; misuse of authority; retirement age;
Judgment 4345
131st Session, 2021
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to extend his temporary reassignment.
Consideration 6
Extract:
The complainant contends that the impugned decision is vitiated by abuse of authority[...]. This contention is unsubstantiated and the Tribunal’s consistent case law holds that bad faith cannot be assumed; it must be proven (see, for example, Judgments 4261, under 10, 4161, under 9, 3154, under 7, 3902, under 11, and 2800, under 21).
Reference(s)
ILOAT Judgment(s): 2800, 3154, 3902, 4161, 4261
Keywords:
abuse of power; bad faith; misuse of authority;
Judgment 4332
131st Session, 2021
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the lawfulness of a selection procedure in which he participated and the resulting appointment.
Consideration 10
Extract:
Under the case law, misuse of authority may not be presumed and the burden of proof is on the party that pleads it (see Judgment 4081, under 19).
Reference(s)
ILOAT Judgment(s): 4081
Keywords:
abuse of power; misuse of authority;
Judgment 4283
130th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to cancel a competition in which he was a candidate.
Consideration 9
Extract:
The complainant submits that the cancellation of the first competition and the subsequent organisation of the second involved a misuse of authority.
According to him, the initial competition was in fact “cancelled for reasons of partiality, with the sole purpose of appointing officials who were to the Agency’s liking”, and the selection board’s abovementioned observation concerning the candidates’ shortcomings in terms of soft skills was merely a “pretext” used by the Organisation “to prevent the candidates being appointed”.
However, as the Tribunal has repeatedly stated, misuse of authority may not be presumed, and the burden of proof is on the party that pleads it (see, for example, Judgments 2116, under 4(a), 2885, under 12, 3543, under 20, 3939, under 10, or aforementioned 4081, under 19).
It must be noted that the complainant has not produced any evidence to corroborate his allegations. The circumstance, put forward by the complainant, that he was unsuccessful in the second competition even though he had been placed on the list of suitable candidates in the first one and that the same was true of other candidates plainly cannot, in itself, constitute such evidence.
Reference(s)
ILOAT Judgment(s): 2116, 2885, 3543, 3939, 4081
Keywords:
abuse of power; competition cancelled; misuse of authority;
Judgment 4281
130th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to promote him in the 2015 promotion exercise.
Considerations 8-9
Extract:
[T]he complainant submits that he was deprived of an opportunity to be promoted for the sole reason that he exercised a part-time staff union mandate. The grievance he thereby expresses should, in the Tribunal’s view, be regarded as an allegation of misuse of authority.
In Judgment 3357, under 16, the Tribunal found that “the existence of [...] bias, which would constitute a misuse of authority, may not be presumed. It is incumbent upon the official who intends to rely on a plea of this nature to furnish at least some prima facie evidence in support thereof; mere allegations which are moreover purely speculative are immaterial here (see, for example, Judgments 1775, under 7, 2019, under 24, 2927, under 16, or 3182, under 9)”.
Reference(s)
ILOAT Judgment(s): 1775, 2019, 2927, 3182, 3357
Keywords:
abuse of power; misuse of authority; personal prejudice; staff union activity;
Judgment 4221
129th Session, 2020
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of her request for reclassification of her post.
Consideration 10
Extract:
The Tribunal sees no circumstances on which to hold that, in breach of its duty of care to the complainant, the Administration attempted (as the Tribunal severely sanctions consistent with Judgment 2282, consideration 11) to keep her from exercising her right to appeal[.]
Reference(s)
ILOAT Judgment(s): 2282
Keywords:
abuse of power; duty of care; misuse of authority; organisation's duties;
Consideration 15
Extract:
[T]he complainant’s contention that the decision to classify her post at grade P-3 is tainted with abuse of authority is also unfounded. In any event, she provides no evidence to support that contention (for such a requirement see, for example, Judgment 3939, consideration 10, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 3939
Keywords:
abuse of power; burden of proof; misuse of authority;
Judgment 4161
128th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the validity of a settlement agreement.
Consideration 9
Extract:
It is well established in the case law that “bad faith cannot be presumed, it must be proven. Additionally, bad faith requires an element of malice, ill will, improper motive, fraud or similar dishonest purpose” (see Judgment 2800, consideration 21, cited in Judgment 3154, consideration 7; see also Judgment 3902, consideration 11). What is more, “misuse of authority may not be presumed and the burden of proof is on the party that pleads it” (see Judgment 3939, consideration 10).
Reference(s)
ILOAT Judgment(s): 2800, 3154, 3902, 3939
Keywords:
abuse of power; bad faith; misuse of authority;
Judgment 4155
128th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decision to allow all staff to vote when members of the Staff Council are elected.
Considerations 7-8
Extract:
In November 2014, the Director General sent a message to the staff effectively declaring that Staff Regulation 8.1 required all staff to be able to vote in an election for the Staff Council. Thereafter the Administration, guided by an opinion of the JAG, took steps to alter the status quo ante and bring about the election of members of the Staff Council by all staff rather than only those who are members of the Staff Association. [...]
The circumstances prevailing immediately before November 2014 were that the body described in Staff Regulation 8.1 was constituted by members of the Staff Association who had been elected to the Association’s Staff Council under the rules of the Association. This involved, at least implicitly, an acceptance by the Administration that Staff Regulation 8.1 permitted or authorised the constitution of the Staff Council in this way. What, in effect, WIPO has done, is adopt and assert an interpretation of Staff Regulation 8.1 which is partisan in the sense that it is an interpretation which was obviously aimed at disadvantaging the Staff Association and its members, having regard to the long-standing practice concerning the constitution of the Staff Council, and favouring the Administration in the sense that it does not have to deal with individuals, as members of the Staff Council, with, necessarily, what is almost certainly significant authority deriving from the membership of the Staff Association and their election by that membership. This constitutes an abuse of power.
Keywords:
abuse of power; freedom of association; misuse of authority; practice;
Judgment 4146
128th Session, 2019
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decisions not to grant him a contract of indefinite duration and not to extend his fixed-term contract beyond nine years of service.
Consideration 10
Extract:
The Tribunal recalled, in Judgment 3861, under 9, that the principle of good faith and the concomitant duty of care require international organisations to treat their staff with due consideration in order to avoid causing them undue injury, and that an employer must consequently inform officials in advance of any action that may imperil their rights or harm their rightful interests. The Tribunal has also observed that in order for there to be misuse of authority, it must be established that the decision rested on considerations extraneous to the organisation’s interests and that the staff member alleging abuse of authority bears the burden of establishing the improper purpose for which the authority was exercised (see, for example, Judgment 3193, under 9).
Reference(s)
ILOAT Judgment(s): 3193, 3861
Keywords:
abuse of power; burden of proof; good faith; misuse of authority;
Judgment 4099
127th Session, 2019
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to abolish her position.
Consideration 11
Extract:
The complainant raises numerous grievances against WHO, claiming that she was a victim of collusion between certain officials, unfavourable bias, misuse of authority, discrimination and reprisals.
However, as the Tribunal has stated on many occasions, allegations of this kind can only be accepted if there is sufficient evidence to substantiate them (see, for example, Judgments 1775, consideration 7, 2116, consideration 4(a), 2885, consideration 12, 3380, consideration 9, 3543, consideration 20, or 3914, consideration 7).
Reference(s)
ILOAT Judgment(s): 1775, 2116, 2885, 3380, 3543, 3914
Keywords:
abuse of power; burden of proof; misuse of authority;
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