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Judgment No. 1
Complaint No. 1 Jorge Almada Morrison v. Secretary General of the Organization of American States
THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES, Composed of Mozart Víctor Russomano, President; Juan Bautista Climent Beltrán, Vice President; and Carlos Giambruno, Judge, Has before it for judgment the proceedings on the complaint filed by Jorge Almada Morrison against the Secretary General of the Organization of American States. The Complainant acted on his own behalf and the Secretary General was represented, in accordance with Article 20 of the Rules of Procedure of the Tribunal, by Francisco V. García-Amador, Director of the Department of Legal Affairs of the General Secretariat. WHEREAS: On January 24, 1972, the date on which the Chairman of the Permanent Council of the Organization of American States installed the Administrative Tribunal, the Tribunal was informed by the Secretariat that, in accordance with its Statute, Jorge Almada Morrison had filed a complaint. After the Tribunal had adopted its Rules of Procedure, the President granted the Complainant an additional 30 days to adapt his complaint to the formalities called for in them. On February 28 of the same year, after complying with the formalities required by the President of the Tribunal, the Complainant again presented his complaint, in which, besides recounting the events that had given rise to it and setting forth the legal bases for it, he referred specifically to the decision of the Secretary General whereby his services were terminated on December 31, 1969. With regard to the administrative procedure followed by the Complainant to have this decision revoked, he asserts that this requirement was met when he was informed on July 22, 1971, that the Secretariat had not approved the request he made in May 1971 for the convocation of a Grievance Committee. In his petition, the Complainant prays the Tribunal to declare his complaint substantiated and to nullify the decisions challenged by restoring his right to his post and imposing the maximum indemnities on the General Secretariat, taking into account the rank of the Complainant's position and the material and moral injury caused. WHEREAS: On April 3, 1972, the Secretary General of the Organization presented his answer. Before referring to the substantive matter, he raised as previous questions the lack of competence of the Tribunal and the inadmissibility of the complaint. In referring to the substantive issue, the Secretary General mentions the facts presented by the Complainant and maintains that the termination of his services was a result of an administrative action that is within the unquestionable authority of the Secretary General of the Organization. After refuting the Complainant's arguments, the Secretary General prays the Tribunal, in accordance with Article II.6 of its Statute and "taking into account that the events that motivated the complaint presented by Jorge Almada Morrison took place prior to April 22, 1971, to declare itself incompetent to hear this complaint." In the event that the Tribunal should declare itself competent, the Secretary General prays that, "in the light of Article VI.1(a) of the Statute of the Tribunal," the Tribunal decide "that this complaint is inadmissible because Mr. Almada did not at the proper time --that is, while he was still employed-- exhaust the procedures called for in the applicable provisions." Finally, in the event that the Tribunal should declare itself competent and decide to admit the complaint, the Secretary General prays that the Tribunal dismiss it "because the termination of Mr. Almada's services was not due to the reasons he asserts in his brief but to the administrative reorganization ordered by the Secretary General, in the exercise of the unquestionable authority conferred upon him by the Charter of the Organization and other applicable provisions; because the recommendation of the Director of the Department of Legal Affairs affected the post held by Mr. Almada only for the reasons given in paragraph II(1) of this brief; and because Mr. Almada received absolutely all the benefits and payments due him." WHEREAS: On April 25, 1972, the Complainant presented his reply to the Secretary General's answer, in accordance with Article 13.3 of the Rules of Procedure of the Tribunal. Referring to the previous questions raised by the Secretary General, he contradicts the latter's arguments objecting to the complaint. With respect to the objection of incompetence, the Complainant asserts that some of the events that led to the complaint occurred before April 22, 1971, and others after that date. Specifically, he mentions the rejection of his request for the convocation of the Grievance Committee, which was communicated to him on July 22, 1971. He describes this as the key event in the entire process from the standpoint of the recognition or non-recognition of his rights. With respect to the inadmissibility of the complaint, the Complainant maintains that he did indeed exhaust the procedures referred to in Article VI.1(a) of the Statute of the Tribunal. Besides requesting the convocation of the Grievance Committee, he made every effort, both orally and in writing, to gain reconsideration of the decision that had injured him. He refers specifically to his letters of February 18 and August 5, 1971. This led the Complainant to conclude that the Secretary General's reply of April 1, 1971, was the final decision, and he therefore requested the convocation of the Grievance Committee. He adds that even if neither the Secretary General's reply nor the refusal to convoke the Grievance Committee constituted the final decision of the Secretary General, this complaint would still be admissible in accordance with Article VI.3 of the Statute of the Tribunal, which establishes that if the Secretary General fails to take a final decision within 30 days, the complaint shall be admissible as if he had done so. In referring to the substantive issue, the Complainant claims that the causes of the "administrative reorganization" alleged by the General Secretariat did not occur; the "administrative reorganization" resulted only in his own dismissal and that of another staff member, who has continued working on contract. The Complainant denies that any savings have been made at headquarters for the purpose of transferring funds to the field; he says that in 1970-71 the budget for headquarters was increased by several million dollars. Moreover, he adds, no justification has ever been given him for the abolition of his post, nor has it been explained to him why he was not later given one of the vacant posts, which were filled by other people notwithstanding his own right of preference. WHEREAS: On May 17, 1972, in accordance with Article 13.5 of the Rules of Procedure, the Secretary General presented his response to the Complainant's reply. Regarding the objection that the Tribunal is incompetent, the Secretary General emphasizes that the Complainant is seeking the restoration of his right to his permanent post, the one he was deprived of on December 31, 1969. Consequently, the Secretary General claims that the events that gave rise to the complaint cannot be those that occurred after April 22, 1971, since the complaint is directed against the decision to terminate his services on December 31, 1969. Regarding the second previous question, the inadmissibility of the complaint, the Secretary General says that the Complainant's statement in his reply that the letters of February 18 and August 5, 1971, served to exhaust the administrative procedures is not true. When Article VI.1(a) speaks of "procedures provided in the General Standards or in other existing provisions," it is referring to a specific procedure and not to action that, in the judgment of the Secretary General, was taken at the wrong time without following the procedures previously established by the pertinent rules and regulations. In responding to the Complainant's comments on the substantive issue, the Secretary General reaffirms everything stated in his answer to the complaint and refutes the Complainant's interpretation of the Secretary General's memorandum of May 28, 1969, in which, the Secretary General states, the establishment of five regional offices was not the only measure referred to but was just one aspect of the general plan for reorganizing and strengthening the offices in the member states. WHEREAS: On June 21, 1972, the Secretary General was notified that the President of the Tribunal was requesting additional information from him, in accordance with Article 14.1 of the Rules of Procedure. On August 3, 1972, the Secretariat of the Tribunal received from the Secretary General the information requested by the President of the Tribunal. In this connection, the Secretary General states that the total budget of the Organization in the fiscal year 1969-70 increased by only 8.2 percent over the budget of the previous year; that no appointments were made to other posts, either vacant or newly created, at the same level or in the same specialized field as the post held by the Complainant; that the abolition of the Complainant's post was not accompanied by the abolition of posts held by staff members on contract or on probation; and that no contract or probationary staff members who were performing functions identical or similar to those of the Complainant were retained in service. Finally, the Secretary General described the movements of posts within the Department of Legal Affairs between March 1969 and April 1, 1972. WHEREAS: On August 14, 1972, the Complainant presented a statement noting that, in accordance with Article 14.1 of the Rules of Procedure, "the parties shall be notified so that they may participate in the proceedings . . ." and commenting on the Secretary General's response dated the 3rd of that month. WHEREAS: On August 16, the case was placed on the list of matters pending consideration by the Tribunal and the pertinent steps were taken to form the Tribunal. In accordance with Article 8.2 of the Rules of Procedure of the Tribunal, Carlos Giambruno disqualified himself from hearing the case. After the disqualification was considered in accordance with the pertinent regulations, it was rejected, and the Tribunal was therefore composed of its three principal members. The President of the Tribunal set the opening date for the session corresponding to the fourth quarter of 1972. On October 19 the Secretary General presented a document offering, in his turn, observations and clarifications on the comments made by the Complainant in his statement of August 14. The Tribunal deliberated fully on the case sub judice and decided that no further action, as provided for in Article 17.1 of the Rules of Procedure, was necessary. At the request of both parties, it ordered oral proceedings, in accordance with Article 17.4, 5, and 6 of the Rules of Procedure. The oral proceedings were conducted on the afternoon of October 25, and during them the Complainant stated that the Secretariat had also failed to make the offer of reassignment called for by Staff Rules 109.5(h) and (i). When the proceedings were concluded, the President of the Tribunal was designated to draft the judgment, in accordance with Article 25 of the Rules of Procedure. Having examined the proceedings, the Tribunal now CONSIDERS: 1. The first previous question raised by the Respondent involves the objection of incompetence on the basis of the provision establishing the temporal scope of the Tribunal's jurisdiction. When the Permanent Council of the Organization of American States approved the Statute of this Tribunal, by delegation from the General Assembly, it made two intentions very clear: In the first place, it permitted extensions of the jurisdiction of the Tribunal by providing for agreements to be concluded by the Secretary General that would give it competence to judge complaints originating in Inter-American Specialized Organizations (Article II.4). That intention was made even clearer and more explicit in an amendment of the Statute approved by the General Assembly on April 21, 1972, which expanded this provision to cover any American intergovernmental organization. However, with regard to the competence of the Tribunal in relation to the OAS, the restriction was established that it would not be competent to hear complaints concerning actions that occurred before April 22, 1971 (Article II.6). In a sense, therefore, it may be said that the Permanent Council had two objects in view in determining the competence of the Tribunal: (a) a progressive extension of spatial competence; and (b) a restriction of temporal competence to prevent it from hearing complaints arising from actions that occurred prior to April 22, 1971. It is obvious that the purpose of the first measure is to give other organizations and their staffs access to the Tribunal. But it is no less evident that the purpose of the second provision is to prevent the establishment of the Tribunal from giving rise to a re-examination of events that occurred before it was created. It is possible that the approach taken by the Permanent Council was not the best. If, for example, the criterion adopted had referred to complaints against administrative decisions issued after the establishment of the Tribunal, the question of its competence in pending cases would be easily settled. But that criterion, the date of the decision being appealed, was never under consideration during the period when the Statute was being drafted. The preferred criterion, the one finally adopted, was always the date of the action that motivated the complaint, which follows the orientation suggested by the texts governing the Administrative Tribunal of the United Nations. Within this orientation, it was necessary to adopt (arbitrarily, to some extent) a time limit. The date finally set was April 21, 1971, because it was on the 22nd of that month that the Tribunal was established, by resolution AG/RES. 35 (I-O/71) of the General Assembly. The history of the rule under review confirms this assertion. At first the idea was to establish as a cut-off the date on which the Tribunal was installed. But in response to a request from the Staff Committee that the temporal competence of the new organ be extended, the date selected was the one on which it was established by the General Assembly. In preparing its proposed amendment on that occasion, the Staff Committee made direct mention of the fact that there were cases pending at lower administrative levels and that its proposal would therefore enable them to be examined as appeals to the Tribunal. However, in the documents on the subject nothing is found to justify the conclusion that the change of the cut-off date for the competence of the Tribunal was intended to enable the Tribunal to hear pending cases, that is, cases originating in events antedating its establishment on which no administrative decision had yet been taken. On the contrary, in a quick discussion of the text of the draft during the first session of the General Assembly in 1971, it was indicated that the spirit of the Statute was to prevent the Tribunal from examining any incident that occurred before it was established (CP/doc.126/71, rev. 1, p. 50). The jurisdictional system adopted by the OAS, which was inspired by the example and experience of the United Nations, thus provides that the Tribunal may hear only complaints based on actions subsequent to its establishment in April 1971. When the Complainant states that the actions that gave rise to the complaint occurred before April 22, 1971, he is in fact raising the objection of incompetence in the exact sense of a defect of procedure. 2. Starting on the first page of his complaint, the Complainant asserts that on November 4, 1969, he learned that his post of specialist, grade P-4, in the Department of Legal Affairs would be abolished as of December of that same year. Although the post was abolished in December 1969, the Complainant and the Respondent concluded successive contracts for periods of four months each, which means that the Complainant actually continued working (even though his post had been abolished) until February 18, 1971, when the last contract ended. In the first place, the 1969 date on which the post was abolished is far removed from the time limit that determines the competence of the Tribunal. But, in the second place, it can be acknowledged that after the Complainant's actual post had been abolished, the employment relationship continued, since he remained associated with the OAS not only de facto, but also de jure, by virtue of successive contracts that lasted until February 1971. It must be stressed above all that it was not these successive fixed-term contracts that led to this complaint, but the termination of the previous legal relationship by the abolition of the post in 1969. The Complainant asks for nothing in connection with the subsequent contracts; the basis of his appeal is his right to the permanent position that was abolished. The complaint, therefore, is motivated by actions that occurred much earlier than April 22, 1971. Even if it takes as a point of departure the principle of unity and continuity in the employment relationship and thus concludes that the date on which the permanent post was abolished would be irrelevant because it was followed by successive fixed-term contracts, the Tribunal is faced with the fact that the last contract expired on February 18, 1971, and after that date all legal relations of a contractual nature between the parties ceased to exist. In other words, the contractual legal relationship between the parties that existed in one form or another before or after the permanent post was abolished ended before this Tribunal was established. 3. The Complainant shrewdly points out that although the essential actions occurred in December 1969, their consequences continued throughout his repeated representations, claims, protests, and complaint. The definitive ending of the legal relationship would thus be a long process, culminating only in the outcome of the litigation. The Complainant therefore calls attention to the fact that on the very day that the third contract expired, he presented a written petition. The reply he received to his petition led him to request the convocation of the Grievance Committee. The refusal to convoke the Committee, which put an end to the "administrative cycle" of the dispute and was communicated to the Complainant on July 22, 1971, that is, after the establishment of the Administrative Tribunal, occurred within the time limit on the competence of this Tribunal. More accurately, the Respondent repeatedly says that the real object of the complaint is to challenge the abolition of the permanent position held by the Complainant; in fact, it is the only reason for the complaint. Under the best of assumptions, it might be added, the actions that motivated the complaint occurred up to the end of the last contract, in February of 1971. The question, therefore, is whether the competence of this Tribunal is determined by the time of the events related to the violation of the Complainant's substantive rights or by the period during which he took procedural and formal steps before the competent authorities, after April 22, 1971, but concerning events before that date. This is a question of intertemporal law, and the Administrative Tribunal of the OAS finds nothing in the jurisprudence of the Administrative Tribunal of the United Nations to indicate any identity or even similarity between the rules on this adopted by the OAS and by the UN. 4. Article II.6 of the Statute of this Tribunal expressly limits its competence to complaints arising from actions that occurred after April 21, 1971. In the present case, the violation of the Complainant's substantive or material rights was perpetrated, according to his allegations, in 1969 (by the abolition of his permanent post) or, on the assumption more favorable to him, in February 1971 (by the expiration of the last of the fixed-term contracts between the parties). Under both assumptions, the actions took place before the establishment of the Tribunal. With regard to the Complainant's allegation, expressly made during the oral proceedings, that he did not receive the offer of reassignment called for in Staff Rule 109.5(h) and (i), it so happens, since the offer must be made before a termination for reduction in force, that the actions related to this possible right of the Complainant also occurred prior to April 22, 1971. What happened later was merely procedural measures taken by the Complainant to defend his claims, such as his request for the convocation of the Grievance Committee. Moreover, these measures, by their very nature, are not a suitable reason for the Tribunal to re-examine actions that occurred before April 22, 1971. The case here is not a matter of nullifying a procedural action taken against the Complainant after April 21, 1971; in alleging that he was denied means of defense, the Complainant is asking the Tribunal to review actions prior to that date. The Tribunal expresses no opinion on the criterion in the Statute, but a literal, historical, and systematic interpretation compels it to apply Article II.6 as meaning that its competence is limited to the examination of events involving a violation of subjective rights that occurred prior to April 22, 1971. 5. By his complaint, the Complainant is trying to obtain recognition of his right to the permanent post that was abolished in 1969, with a consequent obligation upon the Secretary General to pay the maximum indemnity. After the permanent post was abolished, the employment relationship that existed under successive fixed-term contracts ceased on February 18, 1971. All the actions related to the alleged violation of the Complainant's subjective rights took place before April 22, 1971. Article II.6 of the Statute expressly and categorically restricts the competence of this Tribunal to complaints arising from actions that occurred after April 21 of that year. By virtue of the foregoing, the Tribunal unanimously RESOLVES: To declare itself incompetent to hear this complaint.
Let notification be given. Washington, D.C., October 31, 1972
Mozart Víctor Russomano, Esq. / President Juan Bautista Climent Beltrán, Esq. / Vice President Carlos Giambruno, Esq. / Judge Jorge L. Zelaya, Esq. / Secretary OEA/Ser.R TRIBAD/4 31 October 1972 Original: Spanish |
