Kuwait Court of Cassation principle number 524

Summary: - Assessment of the grade an employee deserves for each element included in the efficiency report. It is for his immediate superior, the superiors next in responsibility, and the Personnel Affairs Committee, each within its competence. The condition: these assessments must not be tainted by deviation or abuse of power. - A difference between the assessment of the employee’s performance and his assessment in previous years. It has 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, so that the employee does not carry forward his previous assessments, whether excellent or otherwise, as this would be contrary 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 the jurisprudence of this Court that assessment of the grade 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 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 the efficiency report are not affected by the assessment of the employee’s performance differing from his assessment in previous years, because the principle in this regard is annual assessment, meaning the necessity of measuring performance efficiency in all its elements annually. If the employee were always to carry forward his efficiency report, the legislature would not have required performance efficiency to be measured annually; and if every employee were to carry forward his previous assessments, whether excellent or otherwise, which is contrary to the nature of things and the change occurring in an individual’s conduct, achievements and efficiency from one year to another. Based on the foregoing, the efficiency report is valid whenever it fulfils its prescribed conditions, completes all the stages and procedures laid down by law, and 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 established by the person relying upon it.