An international organization's discretionary power (or discretionary authority) is not unlimited. Its "freedom to act" when taking decisions concerning staff is subject to five important limitations.
Nothing in this article is legal advice. When in doubt review the relevant rules of your international organization, as rules vary, and seek legal advice.
The Limits of Discretionary Authority
The discretionary power (or discretionary authority) of an international organization like the United Nations, World Health Organization, International Federation of the Red Cross or World Trade Organization is not unlimited.
Discretionary authority refers to an organization’s power to make a choice among a range of acceptable possibilities. In simpler words, this refers to an organization’s “freedom to act” when taking decisions about its staff.
Discretionary Powers are Wide-Ranging
The caselaw of the ILO Administrative Tribunal (and UN Appeals Tribunal) recognizes that organizations have discretionary authority over a wide range of decisions.
Discretionary authority covers wide-ranging topics such as:
- suspensions and disciplining of staff,
- extensions beyond the age of retirement,
- carrying on outside activities,
- the non-renewal of fixed-term contracts,
- the opening of investigations for misconduct,
- the transfer of staff to other positions,
- changes to salary structures and grading systems,
- the classification of positions,
- decisions on restructuring,
- promotion and selection exercises and
- the waiver of deadlines to lodge internal appeals.
Discretionary Authority is not Absolute
The existence of a “discretionary power” does not mean that an organization has absolute power to act in its own interest. On the contrary, an organization’s freedom to act is subject to constraints.
The 5 Limits on Discretionary Powers
Limitation #1: An Organization’s Rules
The first and most important constraint on discretionary power are the organization’s own rules.
Because an organization is empowered to establish its rules, it must follow them.
In interpreting this limitation, a Tribunal will examine a decision to determine whether the organization correctly applied its own procedures and whether a decision was in “regular form”.
A Tribunal can overturn a discretionary decision when the organization has not followed its own rules, but this breach must be shown to have caused injury.
For example, in one judgment, the ILOAT acknowledged that the World Intellectual Property Organization (WIPO) was obliged to remove and rectify a staff member’s performance appraisal because of irregularities in procedure (mainly, the complainant’s supervisor failure to engage in continuous dialogue, which was central to the evaluation procedure). By failing to do so, the decision was unlawful.
Limitation #2: A Decision Must Be Based on Correct FactsA decision must also be based on correct facts.
This means that a decision based on erroneous information will be deemed unlawful if this error played an important role in the decision-making process.
For example, where a decision-maker refuses to appoint a staff member to a position because he or she considers that the selection panel did not unanimously recommended the candidate, an error of fact will have been committed if the selection panel did in fact make a unanimous recommendation in favor of the candidate.
For reasons of fairness, if the incorrect information on which a decision was based was due instead to the errors or negligence of the staff member who challenged the decision, a Tribunal may be hesitant to overturn the discretionary decision.
Limitation #3: Essential Facts Must Be Considered
In addition to the requirement that a decision must be based on correct facts, a decision-maker must also properly consider the “essential facts”.
In other words, if a decision-maker ignores important facts that clearly should have been considered when the decision was made, a Tribunal may find that the decision is unlawful.
For instance, in Judgment 4062, the ILOAT found that the UNESCO Director-General overlooked essential facts when deciding not to renew a staff member’s contract for unsatisfactory service. In that case, the decision-maker overlooked the extraordinary pressure on the section in which the employee worked, the serious lack of communication between the employee and her supervisor, and the employee’s long and satisfactory work performance.
Ultimately, the devil is in the details.
A Tribunal will have to determine whether a fact is indeed essential.
Limitation #4: Clearly False Conclusions
A decision will also be found unlawful if it was based on a clearly mistaken conclusion.
When considering this limitation, one must view the decision through the lens of an organization’s “freedom to act”.
When taking discretionary decisions, a mere claim that an organization’s specialist committee or expert (such as a post reclassifier or global reassignment committee) made an incorrect assessment will not be enough for a Tribunal to overturn the decision. Tribunals consider that organizations are entitled to deference when they employ experts to advise on topics such as reassignment, classification or grading of positions.Decisions requiring such expertise are considered to involve the exercise of value judgments, and a judge will not redo the work of the specialist and conduct its own assessment. However, if a Tribunal considers that a decision-maker’s conclusion is “totally implausible or involved an obvious mathematical error”, it will be found unlawful.
This is a very high standard.
However, the ILOAT found in one case that qualifying an incident as serious misconduct warranting summary dismissal could in some circumstances amount to a clearly mistaken conclusion to draw from the facts. In that case, a staff member was summarily dismissed for serious misconduct for having accused a supervisor of being a “fascist” and “a Nazi” in the organization’s office, after he halted a publication on which she worked.
Given several factors, including the staff member’s immediate apology to the individual concerned, the Tribunal found that the disciplinary measure was so disproportionate to the unacceptable behavior that it amounted to a mistake of law.
Limitation #5: Misuse of Authority
A discretionary decision may also be deemed unlawful if it involved a misuse (or abuse) of authority.
This means that the decision was extraneous (or not related) to an organization’s interests.
However, a misuse of authority may not be presumed. A staff member must substantiate the accusation with evidence and not speculation (or conjecture). For example, if in a selection process a candidate alleges that he was not selected due to the selection panel’s bias against him, he must present evidence supporting this claim.
As a recent example, the ILOAT found in a case that the Global Fund had abused its authority by threatening to place a staff member on a performance improvement plan because it considered that he did not meet the requirements of his new position after a restructuring.
The Tribunal noted that the organization had unlawfully sought to use a tool designed to correct identified underperformance to address his potential future underperformance in a new role.
Internal Appeal Bodies May Conduct a Broader Review of DecisionsWhile a Tribunal will apply the above five principles when conducting a “limited review” of a discretionary decision, an organization’s internal appeal body may conduct a broader review.
In Judgment 3184, the ILOAT noted that internal appeal bodies are an organization’s primary trier of fact, and “an important safeguard of staff rights and social harmony in an international organization”.
In cases concerning decision on misconduct, an appeal body is required to “weigh the evidence”, and not merely examine whether there were procedural flaws in the process.
For that reason, internal appeal bodies are empowered to fully examine the circumstances of an appeal and make recommendations to address illegality and unfairness.
Ultimately, internal appeal boards only make recommendations, which may (or may not) be accepted by an organization’s executive head.
Legal Advice is Often Needed When Challenging Discretionary Decisions
While the discussion above is intended to provide general information about an international organization's discretionary powers, staff members who wish to challenge a discretionary decision should consult an attorney with experience in international civil service law.
Legal advice can help a staff member determine the strongest arguments in their favor, ensure that sufficient evidence is presented and ultimately assert their rights.