Kuwait Court of Cassation principle number 462

Summary: - Assessment of the rating an employee deserves for each element included in the efficiency report. A matter for his immediate superior, the superiors next in responsibility, and the Personnel Affairs Committee, each within the limits of its competence. The condition therefor. These assessments must not be tainted by deviation or abuse of power. - A difference between the assessment of an employee’s performance and his assessment in previous years. No effect on the validity and soundness of the report. The reason: the principle of annual assessment, whereby performance efficiency in all its elements is measured annually; the employee does not carry forward his previous ratings, whether excellent or otherwise, because that would run counter to the nature of things and the changes in an individual’s conduct, achievements and efficiency from year to year. Rule: It is established in this Court’s case law that assessment of the rating an employee deserves for each element included in the efficiency report is a matter within the discretion of the immediate superior, the superiors next in responsibility, and the Personnel Affairs Committee, each within the limits of its competence, provided that these assessments are not tainted by deviation or the defect of abuse of power. It is also established that the validity and soundness of an efficiency report are not affected by an assessment of the employee’s performance differing from his assessment in previous years, because the principle in this regard is annual assessment, meaning that performance efficiency in all its elements must be measured annually. Had the employee always carried forward his efficiency report, the legislature would not have required performance efficiency to be measured annually, and had every employee carried forward his previous ratings, whether excellent or otherwise, which runs counter to the nature of things and the change occurring in an individual’s conduct, achievements and efficiency from one year to another. Accordingly, an efficiency report is valid when it satisfies its prescribed conditions, completes all the stages and procedures laid down by law, is derived from elements reasonably extracted from the employee’s service file, and no evidence establishes that it was tainted by deviation or abuse of power. It is known that the defect of abuse of power in an administrative decision is an intentional defect, evidence of which must be adduced by the person invoking it.