Kuwait Court of Cassation principle number 523

Summary: - Assessment of an employee’s efficiency in the annual report. Its elements. What they are. The administrative authority may draw, in measuring such efficiency, upon any information or data that may provide guidance. What this includes. Information held by superiors about the employee by virtue of their contact with his work, provided that their assessments are derived from sound elements that no evidence in the papers has disproved and are free from ulterior motives and inclinations of caprice. - Articles 14 and 15 of the Decree concerning the Civil Service System before its amendment, under which the challenged report was prepared. Their import is that the employee’s efficiency is assessed by a report from his immediate superior, which is presented to the higher superior to express his observations thereon and then sent to the Personnel Affairs Committee to express its opinion thereon. The immediate superior must give reasons for his assessment. Rationale. Achieving an essential safeguard for the employee, providing him with reassurance and enabling the judiciary to review the legality 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 this hierarchical gradation does not exist, it suffices for the immediate superior alone to prepare the report, followed by presentation 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 knowledge of its requirements, and the ability to assume its responsibilities and discharge its burdens, together with the employee’s personal aptitudes and the integrity and good conduct characterizing him. The administrative authority may draw its measurement of such efficiency from any information or data that may provide guidance. This includes information available to superiors about the employee by virtue of their contact with his work, provided that their assessments are derived from sound elements that no evidence in the papers has disproved and are free from ulterior motives or inclinations of caprice. When they are such, they are not subject to judicial review, as they concern the very essence of the administrative authority’s competence, in whose place the judiciary may not substitute itself. The import of Articles 15, 14 of the Decree concerning the Civil Service System before its amendment, under which the challenged report was prepared, is that the legislature required, in evaluating the efficiency of an employee in whom his immediate superior perceives manifestations of efficiency or sees signs of weakness, that the superior submit a report on him containing the reasons from which he concluded that his efficiency should be rated excellent or poor. This is by virtue of his contact with and supervision of his subordinates, making him more capable than others of judging the extent of their efficiency. He then presents the report to the higher superior to express his opinion and state his observations thereon, after which the report is sent to the Personnel Affairs Committee to express its opinion thereon. By requiring the immediate superior to give reasons for his assessment of the efficiency of an employee whom he rates excellent or poor, the law sought to achieve an essential safeguard for the employee, providing him with reassurance and enabling the judiciary to review the legality of the administrative authority’s conduct, because of 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 System provides that the annual report on the employee shall be submitted by his immediate superior and then presented to the superior next in responsibility to express 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 hierarchical gradation exists, preparation of annual reports is confined to the superiors included in such gradation within the service or department in which the employee who is the subject of the report works. The organization 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 other than the higher superior. But if, 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 exigency, 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.