Kuwait Court of Cassation principle number 461

Summary: - Assessment of an employee’s efficiency in the annual report. Its elements. Their nature. The administrative authority may draw upon any information or data that may provide guidance in measuring that efficiency. What this includes. Information held by superiors concerning the employee by virtue of their connection with his work, provided that their assessments derive from sound elements that no evidence in the papers has disproved and are free from ulterior motives and personal bias. - Articles 14 and 15 of the Decree concerning the Civil Service Regulations before its amendment, under which the challenged report was prepared. Their purport is that the employee’s efficiency assessment is made in a report by his immediate superior, which is presented to the higher superior for his observations and then sent to the Personnel Affairs Committee for its opinion. The immediate superior must give reasons for his assessment. The rationale. To secure a fundamental safeguard for the employee, providing him with reassurance and enabling judicial review of the lawfulness of the administrative authority’s conduct. - The sequence of steps in preparing the report. Its prerequisite is the existence of the aforementioned hierarchical chain. Where that hierarchy does not exist, preparation of the report by the immediate superior alone suffices, followed by its submission to the Personnel Affairs Committee for approval within the legally prescribed time limits. Rule: It is established in the jurisprudence of this Court that the assessment of an employee’s efficiency in the annual report is derived from a set of considerations and several elements based on regularity at work, sound familiarity with its requirements, and the ability to undertake its responsibilities and discharge its burdens, together with the employee’s personal aptitudes, integrity, and good conduct. The administrative authority may draw its measurement of that efficiency from any information or data that may provide guidance. This includes information available to superiors concerning the employee by virtue of their connection with his work, provided that their assessments derive from sound elements that no evidence in the papers has disproved and are free from ulterior motives or personal bias. Where this is so, those assessments are not subject to judicial review, since they concern the core competence of the administrative authority, in whose place the judiciary may not substitute itself. The purport of Articles 15, 14 of the Decree concerning the Civil Service Regulations before its amendment, under which the challenged report was prepared, is that the legislature required, in assessing the efficiency of an employee in whom his immediate superior perceives manifestations of efficiency or signs of weakness, that the superior submit a report on him containing the reasons from which he concluded that his efficiency should be assessed as excellent or weak. This is by virtue of his connection with his subordinates and his supervision of them, making him better able than others to judge the extent of their efficiency. He then presents the report to the higher superior to express his opinion and state his observations, after which the report is sent to the Personnel Affairs Committee to express its opinion. In requiring the immediate superior to give reasons for assessing an employee’s efficiency as excellent or weak, the law sought to secure a fundamental safeguard for the employee, providing him with reassurance and enabling judicial review of the lawfulness of the administrative authority’s conduct, given the far-reaching legal effects of those reports on recreation, increments, and the continuation of service. It is also established that, although Article (14) of the aforementioned Decree concerning the Civil Service Regulations provides that the employee’s annual report is to be submitted by his immediate superior and then presented to the superior next in responsibility for his opinion and observations, the prerequisite for this sequence in the steps for preparing reports is the existence of the hierarchical chain referred to by the law. Where no such hierarchy exists, preparation of annual reports is confined to the superiors included in such a hierarchy within the service or department in which the employee who is the subject of the report works. The arrangement introduced by the law for preparing annual reports according to specified procedures is mandatory only where the employee is subject in his work to an immediate superior who is different from the higher superior. If, however, under the work system, not all links in this hierarchical chain exist, as where the immediate superior is himself the higher superior next in responsibility, the report satisfies its legal formalities, by necessity and implication, through the assessment of the immediate superior alone, and is then presented to the Personnel Affairs Committee for approval within the legally prescribed time limits.