Judgment No. 129

Complaint No. 202
José N. Zapata v. Secretary General of the Organization of American States

 

THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES,

Composed of José Ajuricaba da Costa e Silva, Esq., President, Carlos Balsa D'Agosto, Esq., Vice-President, and Alejandro Tinoco, Esq., Judge,

Has before it, for judgment the proceedings in the Complaint filed by Mr. José N. Zapata against the Secretary General of the Organization of American States.

The Complainant acted on his own behalf and was represented at the public hearing by attorney Marco Gerardo Monroy Rosas. The Secretary General was represented by attorney Louis G. Ferrand, of the Secretariat for Legal Affairs, all pursuant to the provisions of Article 22 of the Tribunal Rules of Procedure.

WHEREAS:

I. That on March 21, 1994, the Complainant, Mr. José N. Zapata, came forth to file a complaint against the Secretary General of the OAS as authorized by Article II of the Administrative Tribunal Statute. After meeting the requirements regarding his personal and official status Complainant stated, inter alia:

That he has replaced Mr. Tomás Fernández, Supervisor of the Statistics Sector with a grade M post, as of January 12, 1993, the date on which Mr. Fernández began to make use of his medical leave. That despite the death of Mr. Fernández, he has continued to perform his functions and so no one has been appointed to replace him.

That on August 31, 1993, he sent a memorandum to the Director of the Department of Economic and Social Affairs, Mr. Patricio Chellew, in which he requested reclassification of his post. Up to the date the Complaint was filed, however, he had not received any response, nor has the procedure provided for in Rule 102.3 of the Staff Rules been observed.

That on October 13, 1993, he requested a hearing with the Secretary General pursuant to Rule 112.1 of the Staff Rules to seek recognition of his right to an allowance for special duties and to seek reclassification of his post.

That on November 18, 1993, Mr. Luis M. Lizondo, hearing officer, recommended to the Secretary General that Complainant be paid an allowance for special duties until the date that he is instructed in writing that he should cease to perform the duties of the post that had been held by Mr. Tomás Fernández. As regards the request for reclassification, the hearing officer abstained from making any recommendation since, as he indicated, the hearing procedure established in Rule 112.1 of the Staff Rules was not applicable to this matter since "no recourse was had first to the mechanisms of Staff Rules 102.3(i) and 102.3(c)."

That on November 23, 1993, he reiterated his request for reclassification, but that no response was forthcoming.

That on December 1, 1993, the Director of the Department of Human Resources informed Complainant that the Secretary General had resolved to pay him the allowance for special duties up until the date on which he would be formally instructed in writing to cease performing the duties that had been assigned to the post held by Mr. Tomás Fernández. This decision did not take into account his request for reclassification of August 31, 1993.

That on December 15, 1993, Complainant requested reconsideration of this measure pursuant to Rule 112.2 of the Staff Rules. The purpose of that request was to win recognition of his right to have his post reclassified effective as of January 12, 1993. The Joint Advisory Committee on Reconsideration was not designated in timely fashion.

That on January 10, 1994, the Department of Human Resources communicated to him that as of that date he was to cease performing the special duties he had been carrying out, and therefore payment of the allowance for special duties was halted. That this communication has not had any practical effect, as he has continued to perform the same duties and responsibilities that had been entrusted to Mr. Fernández.

That on January 24, 1994, once again he requested a hearing with the Secretary General pursuant to Rule 112.1 of the Staff Rules to seek nullification of the above-mentioned measure and approval for reclassification of his post. The Secretary General did not respond to this request.

That on February 17, 1994, he requested that the Joint Advisory Committee on Reconsideration be convened pursuant to Staff Rule 112.2; it was not convened within the period established.

That at present, and since January 12, 1993, he is performing the work of several persons, putting in up to 12 hours daily. Even though he has often requested support, none has been forthcoming, which has led him to incur pain and suffering since he has had to neglect his family and personal matters.

That he has exhausted internal administrative procedures pursuant to Article 9(1)(c) of the Rules of Procedure of the Tribunal.

That he is filing this Complaint within 90 days of January 26, 1994, when the Secretary General had to make a final decision in this case. In effect, on December 15, 1993, he submitted his request for reconsideration; from that date the General Secretariat had 30 days to make its decision, which it did not do. Therefore, the requirements of Article VI(3) of the Statute of the Tribunal have been met.

That he bases this Complaint on Resolutions CP/RES. 370 (508/82) on General Principles of the Career Service; AG/RES. 123 (III-0/73), which contains the General Standards to Govern the Operations of the General Secretariat of the Organization of American States; Articles 1, 17, 18, 34, 36, 48, 58, 59, 60, 61, 63, 64, and 68 of said General Standards; Rules 102.1, 102.3, 103.5, and 103.7 of the Staff Rules; Judgment No. 59, Reeve v. Secretary General of the OAS (1981); Judgment No. 94, Kouyoumdjian v. Secretary General of the OAS (1986); and Judgment No. 99, Thomae-Forgues v. Secretary General of the OAS (1988). Similarly, his request for reclassification is based on the fundamental principles of labor law according to which there should be "equal pay for equal work"; "the employer should not enjoy unjust enrichment at the worker's expense"; and, "the replacement has the right to the remuneration of the person replaced," which have been recognized by the Administrative Tribunal repeatedly in its judgments.

That he also cites the settlement agreements that brought an end to litigation in the complaints brought by Ms. Mabel Mestre, Mr. Hugo Valverde, Mr. Luis Jiménez, and former staff member Terence J. Wood.

That Complainant has met the requirements of Rule 102.3 of the Staff Rules, as interpreted by the Administrative Tribunal in Judgment No. 94. In effect, on August 31, 1993, he submitted the request provided for in the Rules based on the fact that since January 12, 1993 he had been performing the higher-level duties that had been assigned to Mr. Tomás Fernández. That request was submitted to the Director of the Department of Economic and Social Affairs, who is the regular conduit since he is Complainant's immediate superior, along with a proposed job description.

That the Director of the Department of Economic and Social Affairs did not send Complainant's request to the Department of Human Resources as provided by Rule 102.3 of the Staff Rules, which constituted a breach of due process.

That eliminating the post that Mr. Fernández held until his death, on March 4, 1993, did not mean that the duties associated with it were also eliminated. As appears in the report submitted by the hearing officer: "the post held by Mr. Tomás Fernández was eliminated, redefined as grade N (P-5), transferred to another office, and occupied by another staff member." As a result, formally the duties of that post were eliminated, but in practice, and in effect, they subsisted and have been performed continuously by Complainant since January 12, 1993.

That the fact that he was paid the special duties allowance shows that the General Secretariat recognizes that Complainant performed said duties, which gives him the right to have his post reclassified as of January 12, 1993.

That upon submitting his request to his supervisor or immediate superior and attaching the proposed new job description, Complainant believed in good faith that it would be forwarded through appropriate channels and for this reason he did not submit another petition to the Director of the Department of Human Resources.

That pursuant to the mechanisms established in Rule 102.3 of the Staff Rules, and the interpretation of the Administrative Tribunal, it was not a sine qua non that Complainant submit the request to the Director of the Department of Human Resources, as said provision calls for tripartite participation, i.e. of the staff member, the supervisor, and the Department. Complainant did his part; the supervisor was to ensure that the proposed job description accurately reflected the duties and responsibilities of the post and to forward the request to the Director of the Department of Human Resources, to set the reclassification mechanism in motion.

That if there is an omission on the part of the General Secretariat, it cannot be prejudicial to him because labor laws standards are designed to protect employees. Labor law provisions should be interpreted in a manner favorable to the employee, not against him.

That the standard must be interpreted in light of its purpose, which is none other than to allow the staff member to set the reclassification mechanism in motion with a request, which is precisely what Complainant submitted on August 31, 1993.

That since 1989 the General Secretariat has discriminated against Complainant by not reclassifying him while classifying other professional staff at the same grade with less seniority, lesser or similar academic qualifications, and like or lesser responsibilities in the exercise of their duties.

That he specifically asks that: 1) the documentary evidence submitted and the request for evidence be admitted; 2) the testimony be admitted; 3) it be declared that he has a right to have his post reclassified to grade M (P-4) as of January 12, 1993, and as a result that he be paid the salary and benefits corresponding to said post from that date onwards; 4) he also be paid the consequential damages and lost profit caused by the delay in the classification, including interest not accrued in the Retirement and Pension Fund from January 12, 1993 until the Secretariat carries out the judgment, as well as the damage caused by the delay in receiving all other benefits applicable as a result of this classification; 5) he be awarded compensation of US$ 20,000 for the moral damage he has suffered as a result of the excess workload he has had to bear, which has led him to neglect his family and to experience a variety of personal difficulties; 6) that the General Secretariat be ordered to pay Complainant for procedural costs in the amount of US$ 10,000.

II. The attorney for the Secretary General submitted the Answer to the Complaint in timely fashion and proper form, and in this respect stated, inter alia, as follows:

That this case refers to the insubordination of Complainant who, challenging the authority of the Secretary General as established at Article 118 of the Charter of the OAS and at Article 12 of the General Standards to Govern the Operations of the General Secretariat, refused to abide by disregarding the written order handed down to him January 10, 1994 instructing him to cease performing higher-level duties.

That on January 12, 1993, Mr. Tomás Fernández, grade M (P-4) Senior Specialist in the Department of Economic and Social Affairs, began to make use of medical leave. Mr. Fernández, who held post No. 01-93-45R347-823-WS1, passed away March 4, 1993.

That on April 1, 1993, the Secretary General changed the classification of said post to N (P-5); appointed Mrs. Julia Gabel to hold Mr. Fernández's former post (No. 01-93-45R347-823-WS1) effective May 22, 1993, and transferred her and her post to the Department of Regional Development and Environment, effective June 14, 1993.

That on July 13, 1993, Complainant sent a memorandum to the Director of the Department of Human Resources, Mr. Mauricio Granillo, requesting an allowance for special duties at grade M (P-4), pursuant to Rule 103.7(a)(i) of the Staff Rules. In this respect he alleged, as grounds for the request, that he had been performing Mr. Fernández's functions since January 12, 1993.

That on August 31, 1993, Complainant sent a memorandum to the Director of the Department of Economic and Social Affairs, Mr. Patricio Chellew, in which he requested approval of a new job description, a draft of which he attached to the memorandum.

That on October 13, 1993, Complainant submitted a request for hearing with the Secretary General, pursuant to Rule 112.1, seeking an allowance for special duties as of August 12, 1993, and reclassification of his post to grade M. This was the first time Complainant requested the Department of Human Resources to reclassify his post, pursuant to Rule 102.3(i).

That after receiving the request pursuant to Rule 102.3(i) of the Staff Rules, the Department of Human Resources has six months to complete its review of the post. As Complainant submitted said request on October 13, 1993, that office had until April 14, 1994 to complete its review of Complainant's duties.

That on October 22, 1993, the Director of the Department of Human Resources informed the Director of the Department of Economic and Social Affairs that, considering that the grade M vacant post no longer existed in that department, there were no funds in it to pay an allowance for special duties to Complainant; that as a result Complainant should cease performing higher-level duties, and that if he continued to perform them he would be doing so voluntarily. On October 28, 1993, Mr. Murúa of the Department of Economic and Social Affairs sent a copy of this memorandum to Complainant, which means that as of that date he was informed that his post would not be reclassified.

That on October 25, 1993, the Director of the Department of Human Resources designated Mr. Luis Lizondo as hearing officer.

That the hearing officer submitted his report November 18, 1993, and recommended that Complainant be paid an allowance for special duties at grade M until formally instructed to cease performing Mr. Fernández's duties. The hearing officer also concluded that he could not consider the request for reclassification since prior to October 13, 1993, when the hearing was requested, Complainant had not submitted the request for reclassification provided for in Staff Rules 102.3(c) and (i).

That on November 29, 1993, the Secretary General approved the hearing officer's recommendation, which was communicated to Complainant on December 1, 1993.

That on December 15, 1993, Complainant submitted a request for reconsideration and asked for reclassification of his post to grade M (P-4). Complainant did so even though not long before, on October 13, 1993, he had complied with the provision in Rule 102.3(i) of the Staff Rules, which gave the Department of Human Resources until April 14, 1994 to complete its review of his post.

That by memorandum of January 10, 1994, the Director of the Department of Human Resources referred to the memorandum that his office had sent the Director of Economic and Social Affairs on October 22, 1993, a copy of which Mr. Murúa had delivered to Complainant. In that memorandum it was indicated that Complainant should cease to perform the higher level duties and was ordered to cease performing any duty that might give rise to the payment of an allowance for special duties after January 10, 1994. On January 10, 1994, Complainant signed his name at the end of said memorandum, acknowledging that he had received it that day.

That on January 24, 1994, Complainant requested a hearing with the Secretary General and sought revocation of the above-noted measure and reclassification. On February 17, he submitted a request for reconsideration in relation to the same matter.

That on March 7, 1994, after speaking with Complainant, the Secretary General ratified his decision of January 10, 1994. Also on March 7, the Director of the Department of Human Resources informed Complainant that the Joint Advisory Committee on Reconsideration was being constituted. On March 14 Complainant asked Miss Esther Diamond, Secretary of the Committee, if Mrs. Pamela Mumuni could be replaced, because she did not speak Spanish and therefore would not be in a position to understand the case. Miss Diamond explained that Mrs. Mumuni had been designated by the Staff Association, that she spoke and understood Spanish very well, and that she had represented the Staff Association in several cases without language having posed any barrier. According to Miss Diamond, Complainant was not satisfied with the explanation.

That on March 15, 1994, Complainant sent a memorandum to the Director of the Department of Human Resources in which he stated that the Committee on Reconsideration had been convened after the period established and indicated that he could turn directly to the Administrative Tribunal. The Secretary General was in agreement and Complainant submitted his Complaint to the Tribunal on March 21, 1994.

That it is irrelevant whether Complainant performed Mr. Fernández's duties beginning in January 1993, since he received an allowance for special duties at grade M from July 13, 1993 until January 10, 1994, the date on which the Secretary General ordered him to cease performing those duties.

That both Article 118(b) of the Charter and Article 12 of the General Standards show that the Secretary General had the authority to order Complainant to cease to perform Mr. Fernández's duties. If Complainant continued performing said duties, he did so voluntarily, disregarding the authority of the Secretary General. As a result, his Complaint lacks merit.

That as of August 1987, when the Secretary General issued Executive Order 87-1, "Post Classification System," the requirement in old Staff Rule 102.3(c), which established that each staff member interested in having his or her post audited could do so by a request directed to the Department of Human Resources "through the regular channels," i.e., through one's supervisor. Under the new Rule 102.3(i), a staff member may submit his or her request directly to the Department of Human Resources, without going through the supervisor.

That the case law cited by Complainant is not applicable in this case. In Judgment No. 94, Kouyoumdjian v. Secretary General of the OAS (1986), the Tribunal applied Rule 102.3 prior to its amendment by Executive Order 87-1 of 1987. Unlike that rule, the current rule does not require tripartite participation in the reclassification process. Further, Judgments Nos. 59 Reeve v. Secretary General of the OAS (1981) and 99, Thomae-Forgues v. Secretary General of the OAS (1988) treated the issue of unjust enrichment, which is not present in this case since Complainant was paid a special duties allowance at grade M. That allowance was paid to Complainant from July 13, 1993 to January 10, 1994, when the Secretary General ordered him to cease performing any higher-level function that might give rise to the right to payment of said allowance, or to reclassification of Complainant's post.

That this case calls for a determination as to whether a staff member may disregard and violate a direct order of the Secretary General to cease to perform certain functions and later allege that one has a right to be reclassified or to be paid an allowance for special duties for having continued to perform those same duties.

That Article 18 of the Charter of the OAS and Article 12 of the General Standards confer on the Secretary General the power to regulate the authorities and duties of staff members, which means that the Secretary General had the authority to order Complainant to cease to perform Mr. Fernández's duties. Therefore, Complainant cannot ignore that order and then request that his post be reclassified and that he be paid an allowance for special duties, alleging that he continued to perform higher-level duties, while violating disregarding an express order of the Secretary General. If Complainant disregarded that order and continued performing those duties, it means that he did so voluntarily and that he should not receive any of the forms of compensation he has requested. Moreover, he already received a special duties allowance from July 13, 1993, which marked six months from the date when, he stated, he began to perform those duties, to January 10, 1994, the date he was given the order to cease performing them.

That Complainant relies mistakenly on Staff Rule 102.3 as in force prior to August 1987 to state that he met the requirements of this provision by sending the request for audit of his post to his supervisor, so that he might then forward it to the Department of Human Resources. Nonetheless, unlike the previous Rule 102.3, the current rule authorizes the staff member to send the request directly to the Department of Human Resources. If instead of doing this the staff member opts to send it to his supervisor, the supervisor is not obligated to pass it on to the Department of Human Resources. As a result, Mr. Chellew was under no obligation to forward the job description proposed by Complainant to the Department of Human Resources.

That Complainant has deliberately ignored the provisions of Rules 102.3(i) and 103.7(f), which establish that the Department of Human Resources has six months from receipt of the request for reclassification provided for in the rules to complete the audit and the decision-making process. As a result, even if Complainant's interpretation of these provisions were accepted as correct, and it were determined that he was not working voluntarily, it must be noted that the Department of Human Resources had six months to complete the audit and the decision-making process. If this term is counted from August 31, 1993, when Complainant sent his draft job description to Mr. Chellew, the approximate date for completing the audit and the decision-making process would have been March 1, 1994. If the term of six months is counted from October 13, 1993, the date Complainant submitted his request for hearing, the audit and decision-making process should have been completed by April 14, 1994. Using either of these two dates, Complainant would not have been able to set in motion the hearing procedure provided for in Staff Rule 112.1 until on or about the date his Complaint was submitted to the Tribunal, March 21, 1994.

That for the reasons set forth he requests that: a) the evidence submitted by Respondent be admitted; b) all Complainant's allegations and claims be declared inadmissable; c) all compensation sought by Complainant be denied; d) Complaint be declared inadmissible in all parts; and, e) a reasonable sum be ordered paid to the General Secretariat for attorney's fees.

III. Complainant submitted his Observations brief in timely fashion and proper form, and after reiterating its contents stated, inter alia, as follows:

That the Department of Statistics provides a public service that cannot be broken up into parts, and that therefore Complainant could not carry out just some functions and not others, since this would impede the regular operation of this service.

That the Director of the Department of Economic and Social Affairs did not give him express instructions on the duties he should continue to carry out and those which he should cease to perform, and that Complainant abided by his job description, which reads as follows: "To replace the senior specialist, chief of the statistics sector, in case of his absence."

That the Director of the Department of Economic and Social Affairs has continued assigning him duties just as the chief of the statistics sector had done, and that as a subordinate he must follow his orders so as not to violate Rules 110.4(c) and 110.5(i) of the Staff Rules.

That in 1960, the Department of Statistics had 60 staff, in 1988 the number was reduced to four, and at this time Complainant is the sole staff member. Consequently, there has been an accumulation of functions that he has had to assume in order to ensure continuing operation of the service.

That contrary to the statement by Respondent's attorney that he does not have a level of competence equal to that of Mr. Fernández, he states that he has a professional degree in Economics from the Universidad Nacional of Colombia, more than 20 years of experience at the service of the Organization, has founded two statistical bulletins, and has prepared a model bulletin on general and socioeconomic profiles.

That the change in the grade of Mr. Fernández's post and the designation of Mrs. Julia Gabel do not limit Complainant's right to obtain reclassification, because these are administrative situations that cannot limit Complainant's acquired right to reclassification.

That Complainant requested his reclassification in a memorandum sent August 31, 1993 to Mr. Chellew, and that his memorandum of October 13, 1993 merely reiterated that request.

That Rule 102.3(i) is not applicable in this case given that the six months are counted from the date the Department of Human Resources receives the request for reclassification, since the Department did not receive his request, as Mr. Chellew did not send it on.

That the Director of the Department of Economic and Social Affairs breached Rule 102.3(b), which reads: "immediate supervisors are responsible for ensuring that the post description adequately reflects the duties and responsibilities assigned to their subordinates." Mr. Chellew should have sent his request for reclassification to the Director of the Department of Human Resources so that the duties of the post he is performing reflect its classification.

That the fact that there are no funds or that the post's classification has been changed do not constitute a legal impediment that affects the request for reclassification by Complainant on August 31, 1993.

That he asks the Tribunal to apply the general principle of law that says that "no one shall be heard alleging his own guilt" (Nemo auditur propriam turpitudinem alegans).

That contrary to Respondent's allegations, Judgments Nos. 59 and 99 on unjust enrichment are applicable, since the General Secretariat is becoming unjustly enriched by not recognizing the reclassification, and depriving him of the salary to which he has a right for performing duties of a higher level than the post he holds.

IV. The attorney for Respondent submitted his Comments brief in timely fashion and proper form, and after reiterating its contents he stated, inter alia, the following

That the Director of the Department of Economic and Social Affairs, Mr. Chellew, did not send the draft job description prepared by Complainant to the Department of Human Resources because it did not faithfully reflect the duties Complainant was actually carrying out.

That Mr. Fernández's job description required "university-level studies in statistics (Master's degree or equivalent) or related fields, with completion of specialized courses in statistical methods." Complainant eliminated this requirement from the draft job description he submitted.

That the principal publication of the statistics area in the Department of Economic and Social Affairs is the "Boletín Estadístico de la OEA," whose publication had been the work of Mr. Fernández. After his death the 1992 Bulletin was unfinished. Mr. Chellew assigned the supervision and coordination of its production to Mr. Juan Carlos Jordán, while Complainant continued performing his grade L (P-3) functions in the Bulletin with the support of Mr. Ubirajara Machado. The work of both staff members was coordinated by Mr. Jordán.

That on or about October 28, 1993, Mr. Chellew met with Complainant for the purpose of addressing the memorandum from the Director of the Department of Human Resources. In that meeting Mr. Chellew told Complainant that he had never assigned him Mr. Fernández's duties, and that he definitely was not performing them.

That on January 14, 1994, Mr. Chellew met once again with Complainant to take up the memorandum from the Director of the Department of Human Resources of January 10, 1994, by which Complainant was ordered to cease performing any and all of the duties that had been assigned to Mr. Fernández. On that occasion, Mr. Chellew told Complainant that it was improper to request an allowance for special duties because he had never been assigned those duties; Complainant had not performed them, and in any event, he had been ordered not to do so.

V. On May 30, 1995, through a Note from the President's office, the President of the Administrative Tribunal, Chief Judge José Ajuricaba da Costa e Silva, designated Mr. Edward Freeman as expert witness to examine Complainant's post. In the notice the parties were asked to put questions to him through the Tribunal Secretariat.

On August 4, 1995, the Secretariat of this Tribunal forwarded to the attorneys for Complainant and the attorney for Respondent a copy of Mr. Edward Freeman's report.

Mr. Freeman submitted two reports on Complainant's case, based on different job descriptions, both on the same date in July 1995.

He based the first report on a job description from July 1992, signed by the Director of the Department of Economic and Social Affairs but not by the Director of Human Resources. In his conclusions and recommendations Mr. Freeman notes that the post entails technical tasks and procedures that contribute to the work of collecting and presenting statistical data: recovery, extraction, verification, accumulation, and processing of numerical data; performance of various tests to determine the uniformity, routine computations, and preparation of representations of the data in the form of tables and graphs. He further indicates that assigning numerical values to the various classification factors suggests that it should be a grade K (P-2) post.

The second report was based on an undated job description that is not signed by the Director of the office or by the Director of Human Resources and which is attached to the docket submitted by Complainant. In the conclusions and recommendations of this second report, Mr. Freeman indicates that the work requires planning and creating data banks, the drawing up of questionnaires, organizing data gathering, storage, and processing; evaluation of rough data to determine whether they are complete, reliable, and relevant; advisory services on methodology and practical application of statistical models, including advisory services for government and national statistics offices to improve their statistics and capacity. He indicated that this work justifies a grade L (P-3) post classification.

VI. On July 31, 1995, pursuant to Article 14(2) of the Rules of Procedure of the Tribunal, this Complaint was placed on the list of cases pending consideration. Once the President indicated the date the Fortieth Regular Session would begin, appropriate measures were taken and the Tribunal was constituted by José Ajuricaba Costa e Silva, Esq., President, Carlos Balsa D'Agosto, Esq., Vice-President, and Alejandro Tinoco, Judge. The Tribunal inaugurated its session on October 30, 1995, deliberated on the case sub judice, and pursuant to Articles 17 and 18 of the Tribunal Rules of Procedure, by Resolution No. 289 set October 31, 1995 as the date for taking testimony and holding the oral proceeding.

Once the oral proceeding had concluded, the Tribunal determined that it was not necessary to take additional evidence.

Having examined the record, the Tribunal shall now

CONSIDER:

I. JURISDICTION OF THE TRIBUNAL

The Tribunal has jurisdiction to hear this Complaint under Article II, Statute of the OAS Administrative Tribunal.

II. EXHAUSTION OF ADMINISTRATIVE PROCEDURES

1. The act challenged that is the subject of this Complaint is the Secretary General's decision by which he did not consider Complainant's request for reclassification of the career service post at which has been serving at grade L (P-3) to grade M (P-4) based on having replaced his supervisor, Mr. Tomás Fernández.

2. After the Complainant, on October 13, 1993, formally filed the request for allowance for special duties (Staff Rule 103.7(a)) as of August 12, 1993, which marked six months of his continuous exercise of higher-level duties, the General Secretariat responded on December 1, 1993 with an act authorizing the special duties allowance with a time limit defined "until the date on which he is formally instructed in writing that he should cease to perform the duties that had been assigned to Mr. Tomás Fernández's post." The Resolution says nothing as to Complainant's claim for reclassification of the post, and the designated hearing officer reported that "the hearing provided for in Staff Rule 112.1 on reclassification is should not be held since no recourse was had to the mechanisms of Staff Rules 102.3(i) and 102.3(c)" since "while petitioner sent the Director of the Department of Economic and Social Affairs a memorandum on the matter and a proposed job description on August 31, 1993, there is no evidence that said request was formally submitted to the Department of Human Resources by Mr. Zapata and/or his supervisor...."

3. In the face of this situation, on December 15, 1993, Complainant began the procedure for reconsideration provided for in Staff Rule 112.2, based on the argument that he continues performing the grade M (P-4) post since the job description for the grade L (P-3) post he holds has included "replacing the Senior Specialist, Chief of the Statistical Section, in case of his absence," and in which he understands that it is not his fault that the Director of the Department of Economic and Social Affairs did not properly forward the memorandum that Complainant submitted to him on August 31, 1993 to the appropriate channels.

4. In response, on January 10, 1994, the General Secretariat instructed the Complainant: "You should cease to perform any and all duties and responsibilities which might give rise to a special duties allowance after January 10, 1994" "as the vacant M level post formerly occupied by Mr. Fernández no longer existed in the Department of Economic and Social Affairs."

5. Since Complainant understood that this measure affected his interests as a member of the career service, as it disregards his right to perform duties of a higher level than corresponds to his post, on January 24, 1994, he submitted a request for hearing based on Rule 112.1 of the Staff Rules. He specifically asked that the decision contained in the January 10, 1994 memorandum from the Department of Human Resources be nullified and that his request of December 15, 1993 to the Joint Advisory Committee on Reconsideration seeking reclassification of the duties and responsibilities of his post, pursuant to the General Standards, the Staff Rules, and the Classification Standards be approved.

6. After the hearing and the subsequent reconsideration, which Complainant requested on February 17, 1994, and without the General Secretariat adopting a definitive decision, it deemed that the administrative procedures proposed, based on Article VI(3) of the Tribunal Statute, have been exhausted.

II. THE ISSUE IN THIS PROCEEDING

A. The first issue: The right to the allowance.

1. First, Complainant asks that the General Secretariat's decision of January 10, 1994, which limits his right to continue collecting the special duties allowance he had been receiving for performing higher-level duties than his post, be nullified. The issue is whether Complainant, after January 10, 1994, continued to perform all or some of the duties of his previous supervisor until the Director of the Department of Economic and Social Affairs specifically reassigned several of his tasks among personnel other than Complainant. And if this was the case, whether the order issued through the Director of the Department of Human Resources released Complainant from his contractual obligation to replace his superior, which is included in his current job description.

2. This first issue it is not in dispute; to the contrary, it is admitted by both parties that prior to January 10, 1994 Complainant performed some tasks corresponding to a post higher than his own, the supervisory post that Mr. Fernández had held, such that he gained the right to the special duties allowance authorized by Staff Rule 103.7. In these proceedings only the statement of one witness, Mr. Patricio Chellew, during the evidentiary hearing expressed a different opinion to the effect that not even before January 1994 did Mr. Zapata perform duties of the post that Mr. Fernández held. Nonetheless, the decision of the General Secretariat to pay him the allowance suggests that it concluded that Complainant performed special duties--at least some of those that his supervisor had carried out--that merited recognition and payment of the allowance. In this respect, the decision of the General Secretariat notes that the allowance was paid to him "without entering into the issue of whether you were performing all or some of the duties and responsibilities of a higher level than that of the post you occupied."

3. It goes without saying that the express reassignment of the main tasks originally carried out by Mr. Fernández, in particular project coordination, by the Director of the Department of Economic and Social Affairs, dated March 23, 1995, is a formal limitation to the application of Staff Rule 103.7, given that as said duties and responsibilities had been expressly performed by staff members other than Complainant, it is by definition impossible to consider an allowance for special duties. Hence the point called into question is whether Complainant had a right to continue collecting the special duties allowance from January 10, 1994 to March 23, 1995, if it is shown that he performed the special duties of the post of supervisor, and in addition that he did so justly.

4. Acknowledgement that Complainant performed supervisory tasks inherent to a higher-level post is not disputed by the parties to this proceeding, with respect to the period prior to January 10, 1994. According to the statements by the Director of the Department of Economic and Social Affairs, Mr. Patricio Chellew, such tasks were never carried out by Complainant. This assertion is disputed by Complainant, who offers abundant evidence to show that he carried out some tasks, including supervision, as well as considerable professional work, and that said activities were viewed by the General Secretariat as deserving of an allowance for special duties prior to January 10, 1994; he claims that it should have continued beyond that date.

5. Respondent states that as of January 10, 1994, those activities undertaken by Complainant would have no lawful basis so as to authorize an allowance for special duties, insofar as their performance would violate an express order of the General Secretariat. In light of this circumstance, such activities performed as special duties--and respondent agrees with this characterization--in voluntary action not deserving of compensation at best. In this respect, Respondent stated that the order was ambiguous; at the same time, his own Department chief did not specifically instruct him as to what activities he had to cease carrying out under his express obligation to replace his superior in case of absence, tending to refute the characterization of his conduct as insubordination. In this regard, the Tribunal considers that the General Secretariat had two different versions in this case, which were expressed in the hearing for receiving evidence from then-Director of Human Resources, Mr. Mauricio Granillo, and in the hearing with then-Director of the Department of Economic and Social Affairs, Mr. Patricio Chellew. Nor was it said that Respondent's accusation of insubordination was more than argumentative, since in response to questions put directly to the Complainant's superior in the hearing for taking testimony, he declared that he was convinced that Mr. Zapata was not performing any of the duties that Mr. Fernández had performed.

6. The General Secretariat has the authority to have a staff member replace his or her supervisor; this authority derives from the expression "may" in Staff Rule 103.7(a). Management may or may not require it. But it should also be borne in mind that this rule has a time restriction, since (a) says "to assume temporarily," and Rule 103.7(b) speaks of "on a temporary basis." This means that Management has the authority to limit the time for which it grants this power to exercise the duties and responsibilities of one's superior. This decision to limit in time the charge of temporarily assuming a higher-level function requires that express measures be adopted to make the interruption effective. In this case, the order given by the General Secretariat is conclusive. (See section II.4. of this Judgment). Based on that express order, and there being no dispute as to whether Complainant received notice of it, Mr. Zapata was relieved of his contractual obligation to continue performing the duties of his absent supervisor, Mr. Fernández; claiming not to have received specific instructions from the Director of the Department as to which duties of the higher-level post he should cease to perform is not justifiable in light of the conclusive manner in which he was to "cease to perform each and every activity and responsibility" that may give him the right to collect a special duties allowance after January 10, 1994.

7. The analysis of the evidence submitted leads to the conclusion that some of the tasks that had been the supervisor's continued to be carried out by Complainant after January 10, 1994, despite the express instruction from the competent authority not to do so. The Department Director's silence on this matter and the subsequent holding of the hearing to the effect that he had not deemed it necessary to hinder Complainant from carrying out the tasks in question, presumably of the higher-level post, tend to refute the notion that Complainant was engaged in an act of insubordination with respect to the order, as Respondent tries to argue. In conclusion, from January 10, 1994 to March 23, 1995, the date when the principal special duties of supervisor Fernández's post were expressly reassigned to staff members other than Complainant, while there may be at least some doubt as to the possibility of performing some duties of the higher-level post, this does not make a case of insubordination nor for the right to collect a special duties allowance, since it is essential, if they are to be exercised and paid for, that there be prior authorization, which may or may not be given by Management. In effect, Staff Rule 103.7(a) states textually: "Any staff member may be instructed...." Consequently, the express order noted above is an indication of the unequivocal will of Management not to entrust all or even any of the duties performed by Mr. Fernández as of January 10, 1994.

B. The second issue: Analysis of Complainant's right to be reclassified to the higher-level post

1. The second issue raised by Complainant before the Tribunal is his request that the Tribunal determine that his post is of grade M (P-4) rather than grade L (P-3), which appears in his job description.

2. The terms requested are clear, as set forth in Complainant's memorandum of January 24, 1994, number 2 on the list of claims: Complainant claims his right to be reclassified to grade M (P-4).

3. Nonetheless, the warning by Mr. Lizondo in his capacity as hearing officer should be borne in mind. He noted that the Department of Human Resources never received the request for reclassification from Complainant or his supervisor, and on this basis he questions whether the mechanisms established in Rules 102.3(c) and (i) of the Staff Rules, thus he calls into question Complainant's explanation that "the Director of the Department of Economic and Social Affairs should have sent my request since I requested that it be forwarded through appropriate channels." In his warning the hearing he casts light on an error in judgment on the part of Complainant as to how his request for reclassification should be forward to the Department of Human Resources, and he persists in this error in his statements in this proceeding. In effect, Staff Rule 102.3(c), which entered into force on November 25, 1985, authorized each staff member to submit a reasoned request to the Department of Human Resources so that it might analyze and evaluate the post. In this regard it says: "... may present to the Department of Human Resources, through appropriate channels, a documented request...." In contrast, the Staff Rule in force when Complainant made his proposal is 102.3(e) of the Chapter on the Classification of Posts, which entered into force by Executive Order 87-1 of August 25, 1987, which establishes the obligation of the Department of Human Resources to undertake a periodic review of each post. In particular, it says that "said Department may re-examine the reclassification of the posts at its own initiative or at the request of the respective incumbents or their supervisors...." This means that in the case at hand, in order for the Department of Human Resources to be obliged to analyze the reclassification, the request should have been submitted by Complainant to that Department.

4. The Tribunal agrees with the conclusions of the hearing officer, Mr. Lizondo, that formally, in this case, the reclassification procedure authorized by the Staff Rules as in force was not initiated.

5. On another matter, in both his Observations and final argument Complainant claims that the supervisor was under an obligation to process the reclassification, as he had done on a prior occasion. In effect, when Complainant requested reclassification of his post from K (P-2) to L (P-3) prior to this case, he had turned directly to his supervisor, who had considered the request reasonable and had forwarded it to the Department of Human Resources. He understood that the precedent obliged the supervisor to do the same when receiving the request that had been submitted for reclassification of his post from grade L (P-3) to M (P-4). On August 31, 1993, Complainant went to the Director of the Department of Economic and Social Affairs and attached a job description that included those which Complainant felt he exercised of those that had been exercised by Mr. Fernández, his supervisor.

6. During the testimony of Mr. Chellew in the evidentiary hearing, the Tribunal noted that there was a difference between the previous request for reclassification and this one, which was that the Director of the Department held the firm and absolute conviction that Complainant was not actually performing any of the duties attached to the post of his then-supervisor, Mr. Fernández, and he did not share the view that he should advocate the reclassification requested by Complainant with the Department of Human Resources. In this respect, the failure to forward the request for reclassification is justified by the fact that the Director has the right, as Complainant's supervisor, not to forward the request if he does not share the views, and he had the honesty to personally convey to Complainant his position in this regard. In conclusion, the Director of the Department of Economic and Social Affairs was under no obligation to forward Complainant's request for reclassification and precedent did not require him to do so on this occasion.

7. Beyond that, and as Respondent admits that the Tribunal has jurisdiction over the matter, the Tribunal assumes its jurisdiction and considers the second issue, whether Complainant has the right to be reclassified grade M (P-4).

8. The Tribunal agrees with Respondent's interpretation of Article 118(b) of the Charter, as well as of Article 12 of the General Standards, as regards the competence of the General Secretariat to regulate the authority and duties of the members of the career service.
9. The scope of the various posts is determined through objective regulations, the "General Standards of Classification." These standards contain the definition of a grade L (P-3) post and a grade M (P-4) post.

10. The fact that Complainant has performed some of the special duties of the grade M (P-4) supervisor, which has been set forth in the record, does not necessarily mean that his post should be reclassified to another grade level. The rule requiring a staff member to carry out the special duties of his or her superior is provided for in order to ensure continuity in the service. It presupposes that the circumstances for which the supervisor may be absent, and the effective performance of the duties attached to his post, must come to a conclusion, so that the service is not interrupted, suspended, or not performed. But the rule, as was seen (see section III.A.6. of the Considerations of this Judgment), is strictly time-bound, since it is designed and conceived of for situations in which temporary absences of the supervisor occur, or until Management fills the post, in the case of a definitive vacancy. Once the emergency has passed, Management will have to cover the service by regular channels, or even decide not to continue covering it, as happened in this case in which after Mr. Fernández died, it was decided to transfer the post to another Department. In this context, having paid an allowance for special duties that Management itself understands should no longer be performed by the Department does not suffice for granting a reclassification.

11. The evidence collected in the documentation submitted and through the evidentiary hearing, with respect to the activities effectively performed by Complainant and how they compare with the duties and responsibilities inherent in the description of his own grade L (P-3) post that he formally holds, is highly dispersed given the differences in activities in his performance over more than three years, which makes it more difficult to identify the post in precise terms. Further, an accumulation of the volume of work of the same category, in terms of level and responsibility, obviously entails an increase in tasks; but this is not grounds for concluding that there was an obligation to reclassify such a staff member so long as he is not found to make out a case for the higher-level category.

12. The complexity of the facts in dispute and the specific nature of the job description for determining the grade led the Tribunal to designate an independent expert, to whom it entrusted the responsibility of issuing an opinion, as a professional auditor of the classification of job posts, regarding the category of Complainant pursuant to the Classification Standards of the OAS. The Tribunal shares and endorses the view of its President, in Note of August 21, 1995, in which he established that the opinion sought is not a determination as to whether Complainant has a right to be reclassified at grade L (P-3) or M (P-4); it only determines whether pursuant to generally accepted rules and procedures of independent auditing, in his professional judgment it fits in one or the other category of posts, pursuant to the Classification Standards of the OAS.

13. During the evidentiary hearing it was established by attorney for Complainant that if the challenge he formulated regarding the designation of the expert by the Tribunal had been known to him in timely fashion, it would have led Complainant to accept attending the interview to which he was invited by the President of the Tribunal on occasion of the expert investigation and to answer the questions he was invited to ask in the Note of the President dated May 30, 1995. The Tribunal agrees with the views stated by its President in said Note to the effect that the expert opinion, which Mr. Freeman submitted in timely fashion, is evidence taken pursuant to Article 17(2) of the Tribunal Rules of Procedure, to assist the Tribunal in making its decision, which the Tribunal now considers. In this regard, it is considered that the expert opinion ordered by the Tribunal is legally adequate evidence taken pursuant to the standards of due process. Complainant's position, stated repeatedly, of not attending the interview with the expert nor putting any questions to him are voluntary decisions in the exercise of his procedural freedom that do not affect due process. To the contrary, due process has been strengthened insofar as the Tribunal decided to provide the expert with two job descriptions, one drawn up by the Complainant himself and included in the record; and similarly, it decided to hear from the expert in public hearing, even though the parties did not so request, as they could have under Article 17(2) of the Rules of Procedure of the Tribunal, just as the Tribunal, in the presence of the expert, asked the parties to make any observations or comments, or ask any questions, that might help cast additional light on the expert opinion and possibly alter his conclusions. From the formal record of the evidentiary hearing no information was brought out which, in the judgment of the expert, would change the conclusions of his report. To the contrary, his independence was reaffirmed. The expert opinion concludes that neither of the two job descriptions, including that submitted by the Complainant, are technically sufficient so as to justify a reclassification to grade M (P-4).

IV. OTHER CLAIMS

1. The claims for indemnification were not identified among the acts for which compensation is sought, nor in the evidence, therefore they are not to be entertained.

2. Finally, as regards attorney's fees and procedural costs, it is not thought that the action is reckless; rather, the Tribunal understands that both parties, in reasonable fashion, have set forth their points of view, thus it is appropriate to take them in the order they occurred, and each party shall cover its own expenses and procedural costs.

In view of the foregoing, based on Article VII of its Statute, the Tribunal unanimously

RESOLVES:

1. To declare that Complainant does not have a right to have his post reclassified to grade M (P-4).

2. To declare unfounded all other claims that Complainant has brought on submitting his complaint.

3. To declare that expenses and procedural costs shall be assumed by each of the parties.

Let notification be given.

Washington, D.C., November 13, 1995.


José Ajuricaba da Costa e Silva, Esq.
President

Carlos Balsa D'Agosto, Esq.
Vice-President

Alejandro Tinoco, Esq.
Judge

Noemi Cohen, Esq.
Secretary