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Judgment No. 107
Complaint No. 175 Jorge F. Murgio v. Secretary General of the Organization of American States
THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES, Composed of Enrique Rojas Franco, President; Carlos Balsa D'Agosto, Vice President; and Alejandro Tinoco, Judge, Has before it for judgment the proceedings on the complaint filed by Jorge F. Murgio against the Secretary General of the Organization of American States. The Complainant was represented by Juan F. Bauta, attorney, and the Secretary General by José D. Acosta, attorney of the Secretariat for Legal Affairs, all in accordance with Article 22 of the Rules of Procedure of the Tribunal. WHEREAS: I. On July 5, 1989, the attorney for Jorge F. Murgio filed a complaint against the Secretary General of the Organization of American States, as authorized under Article II of the Statute of the Administrative Tribunal. After referring to the competence of the Tribunal to hear the present case and to its admissibility, and after complying with the requirements as to the Complainant's personal and official status, the attorney went on to explain the legal and factual grounds on which the complaint was based, and in this regard stated, inter alia: That he is filing the complaint because of the Secretary General's decision to terminate Mr. Murgio's services on March 31, 1989. That the Complainant was a member of the career service with the CICAP Project working in Buenos Aires, Argentina, in a grade M (P-4) professional post. His functions carried the title of senior specialist. That in a communication dated December 30, 1988, the Director of the Department of Human Resources informed the Complainant that his post had been abolished. He offered him the alternative of an ex gratia payment in lieu of his rights under Staff Rule 110.6 and gave him until January 13, 1989, to accept this alternative. That upon receiving this communication, the Complainant traveled to Washington, at his own expense, and visited Room 660-I on the sixth floor of the General Secretariat Building on January 4, 1989. There, Lesley Zark, the specialist designated to assist him in identifying posts that might be of interest to him, told that there were no vacant posts in the Regular Fund. She confirmed this information in writing by means of a "Statement" attached to a copy of the Personnel Register dated November 30, 1988. In the Register the Complainant identified the positions of direct services support officer, grade M (P-4), at the OAS Offices in Brazil, Chile, Colombia, Peru, and Argentina. The Complainant felt that he could perform those duties because he had satisfactorily held such a post in Argentina for nine years. That once the Complainant had identified those posts, he was found to have more seniority than the incumbents. Proof of this is in the Personnel Register. That between January 4 and January 11, 1989, the date on which he left Washington, the Complainant visited Room 660-I every working day. During those visits he obtained copies of the job descriptions for the posts in which he had an interest, he kept abreast of developments in the reduction-in-force process under way at the time, and he compiled all the information needed for a sensible decision on the proffered alternative of accepting an ex gratia payment in lieu of the benefits under Staff Rule 110.6. Throughout that period, he was repeatedly told that there were no vacancies that he could be offered. On the basis of this information he concluded that if he did not accept the ex gratia payment, he would have the right to bump one of his colleagues serving as direct services support officers in Brazil, Chile, Colombia, Peru, and Argentina. Since it was then and is now his desire to continue working, he decided not to accept the ex gratia payment and left Washington. Two days later, on Friday, January 13, 1989, the deadline for opting for the payment expired. That 13 days after the deadline, on January 26, 1989, telex MAN/DHR/07/89AR, signed by the Director of the Department of Human Resources, arrived at the OAS Office in Argentina. It offered him: . . . an approved post in the Regular Fund, at the same grade, with duty station at the headquarters of the General Secretariat. The basic salary in the same grade and step will be . . . That he was also informed that he had until January 30, 1989 to accept the offer; that there was no other approved post in the Regular Fund of the same category and grade that he could fill; and that if he did not accept the post being offered to him he would be terminated on March 31, 1989. Later, a telex received at the OAS Office in Buenos Aires at 7:36 p.m. on Friday, January 27, 1989, added the information that when he was terminated he would not be entitled to the ex gratia payment and that he had to say whether or not he accepted the offered post by 5:30 p.m. on January 30--during office hours on the very same day he was given a copy of the telex. That when the Complainant received the offer of the post in Washington, he had telex COOTEC/043/89, dated January 27, 1989, sent to the Director of the Department of Human Resources, asking what the post and its duties were and in what department or office, so that he could decide. He also requested an extension of the four days he had been given to accept or refuse the post. That the Director of the Department of Human Resources answered that request via telex MAN/DHR/09/89AR, in which he said, among other things, that the Complainant's new job description and the office to which he would be assigned would be determined in due course. That on January 30, 1989, the Complainant had the OAS Office in Buenos Aires send a telex to the Department of Human Resources informing it of his decision not to accept the offer. In the telex he also requested a hearing to appeal the administrative measure of terminating him on March 31, 1989. That via a telex dated February 17, 1989, Getulio P. Carvalho, Director of the Department of Human Resources, informed the Complainant that the Secretary General had decided to confirm the measure. He added, among other things, that neither Staff Rule 110.6 nor administrative practice requires the duties to be spelled out and that it was sufficient if the Complainant met the requirements for it. That on March 2, 1989, the Complainant requested reconsideration. On March 22, he was informed that the Joint Advisory Committee on Reconsideration had been formed. On April 17, he sent the Committee a written statement in accordance with Staff Rule 112.5(e). That up to the date on which the present complaint was filed, the Complainant had not yet been notified that the Reconsideration Committee had delivered its report to the Secretary General. However, since more than three months had passed since the Committee was formed, he concluded that the deadlines provided for in Staff Rule 112.5(h), (i), and (j) had expired. That in offering the Complainant the two alternatives mentioned above, the General Secretariat took special care to make available to him all the pertinent information, so that he might come to a well-informed decision. It was on the basis of all this information furnished by the General Secretariat as part of a process that up to that point had been impeccable, that the Complainant chose the alternative of the procedures provided for in Staff Rule 110.6. That while the Complainant waited, trusting that he would be transferred to one of those five posts, the General Secretariat offered him a vacant post in Washington, D.C. If this vacancy came about between January 1, 1989 (when there were no vacant posts), and January 26 (the date on which the vacant post was offered to him), the change in the situation required the General Secretariat to tell him of its existence, so that he could see the job description and other pertinent information. Staff Rule 110.6(g)(iii) so stipulates. According to Staff Rule 110.6(h), it was only after this measure had been taken that the General Secretariat could offer him the post. That when the post offered to the Complainant was vacated, the General Secretariat was required to offer him the option of the ex gratia payment. In other words, when the situation changed and a post became vacant, the previous procedure of offering the two alternatives should have been repeated. That for a situation to be fair, with the parties acting in good faith, it is unacceptable to close off the period of time given to a staff member to choose between alternatives and then change the terms that led him to opt for one of them. That in Staff Rule 110.6(g)(iii) and (m) the lawmaker ascribed great importance to the need to provide the persons concerned, if their posts are eliminated, with detailed information on the duties and qualifications required for any posts that might be offered to them. This information becomes even more vital when, as in the present case, the post being offered is away from the staff member's duty station and outside his country. That the Complainant wanted to know what duties he would have to perform if he accepted the offer, because he was not willing to accept just any post even if it was at the same level as the post eliminated and he was qualified to fill it. That in view of all this, when the information he requested was denied him, he had no other choice but to reject the offer. In doing so, he knew that he would lose his job but that he could challenge the decision and receive the termination indemnity (US$35,307) provided for in Staff Rule 110.7(d)(ii). If he had accepted the offer and the post had been one he did want, he would have had to resign, thereby losing his right to the termination indemnity. That according to what the Complainant was told, both orally and in writing, there was no vacancy in the Regular Fund as of January 1, 1989. Consequently, the position he was being offered had to have become vacant in 1989 and therefore would have to be eliminated by the Secretary General in fulfillment of the General Assembly's mandate in resolution AG/RES. 954. If everything happened as it was supposed to happen, the offer made to the Complainant was of a nonexistent post. That, moreover, if the Secretary General, by way of the exception authorized under paragraph I-4 of resolution AG/RES. 954, decided to fill the post that had been vacated, he had to be perfectly well aware of its duties, since he could only avoid eliminating it if those duties were "essential." It is obvious that to determine whether or not they were essential he had to know what they were and analyze them. The conclusion from all this is that neither the offer of a nonexistent vacant post nor the offer of a vacant post whose job description was known but withheld from the person concerned was a bona fide offer. That the breach of Staff Rule 110.6 was a violation of due process. This, combined with an offer that was vitiated because it was not a bona fide offer of a vacant post, is sufficient for the Tribunal to uphold the present complaint. That, specifically, he prays the Tribunal (1) to rule that the Secretary General must (a) reinstate the Complainant in the career service of the General Secretariat, in a post of the same grade and step as the one he had at the time of his separation, and (b) pay him salary and other benefits from the date of his separation to the date of his reinstatement; and (2) in the event that the Secretary General exercises his option under Article VII.2 of the Statute of the Tribunal, to order that the amount of the indemnity be set at the equivalent of two years of the basic salary the Complainant was receiving at the time of his separation. II. The attorney for the Secretary General answered the complaint and stated, inter alia: That the complaint brief was filed on July 5, 1989, and does not offer any evidence that the Complainant falls into any of the three situations contemplated in Article VI of the Statute. That on October 19, 1960, the Complainant presented an application for employment at what was then called the Pan American Union. On that application he listed addresses in New York City and Washington, D.C. He also said in the application that he had pursued secondary studies in statistics and accounting from 1945 to 1950 and undergraduate university studies from 1951 to 1954, for a total of 17 hours a week, at the University of Economic Sciences in Buenos Aires. That effective February 12, 1962, the Complainant accepted an employment contract, set to expire on June 30, 1962, as a research assistant in the former Department of Statistics of the Pan American Union, at the I-1 level, the equivalent of a P-1. On March 1, 1962, the Complainant was transferred to another area in the same Department. That on December 11, 1968, the Complainant presented a new job application, in which he stated that he had taken courses in accounting, statistics, and business administration at the School of Economic Sciences of the National University of La Plata, for an annual total of 37 hours a week, and 18 credits of courses in accounting, financial analysis, and statistics at George Washington University in Washington, D.C. That on that basis of that application, the Complainant was promoted to a vacant post as a budget specialist, grade P-3, "in training," on August 16, 1969. That on December 1, 1969, the training period ended and the Complainant received grade P-4 as a budget specialist. That on January 1, 1978, the Complainant was transferred to the Office of the General Secretariat in Buenos Aires. His title of budget specialist was changed to acting deputy director under a temporary assignment of duties effective June 11, 1979. That pursuant to the guidelines developed by the Preparatory Committee of the General Assembly in October-November 1981, the Complainant's post of deputy director of the Buenos Aires Office was eliminated. The Advisory Committee on Reduction in Force studied the case and made a recommendation, which the Secretary General approved. A document signed by the Complainant said that he was a graduate accountant and a certified public accountant and that he had taken courses in accounting and statistics at George Washington University. However, there are no copies or any other documentary evidence of any diplomas or degrees in his file. That in April 1982, the Complainant's approved post in Buenos Aires under Object of Expenditure 1 in the Regular Fund, which he had held since January of that year, was identified for elimination in compliance with resolution AG/RES. 561 (XI-O/81), on the reorganization of the General Secretariat. He was so informed and his case was referred to the Advisory Committee on Reduction in Force for study. The Committee recommended that he be transferred to Washington, D.C., a recommendation that the Secretary General did not approve. On June 4, 1982, the Secretary General decided to keep him in Buenos Aires as an administrative officer, grade P-2, until December 31, 1982. That on that occasion the Complainant was asked to document his professional university degrees, because there were no copies of the diplomas in his file. On June 14, 1982, the Complainant sent in the documents he had and offered to send other documents, but has not yet done so. The Complainant is thus admitting that he does not have a degree as a certified public accountant, for which he can have passed only eight courses, with practical exercises. Nor is there any record of his studies at George Washington University in Washington, D.C. That on the death of the incumbent of the P-2 post of administrative officer whose duties the Complainant had been performing in 1982, the Secretary General reclassified the P-2 post thus vacated and transferred the Complainant to it on January 1, 1983, with the title of direct services support officer. The Secretary General took this action in exercise of his powers, not on the advice of the Advisory Committee on Reduction in Force, and without conforming to the procedure called for under Staff Rule 110.6. That on October 1, 1986, the Complainant was transferred with his post under Object of Expenditure 1 in the Regular Fund to the Inter-American Center for Training in Public Administration (CICAP), also headquartered in Buenos Aires. That in compliance with resolutions AG/RES. 954 (XVIII-O/88) and CP/RES. 514 (760/88), the General Secretariat issued Directive SG-126/88, dated December 28, 1988, whereby 168 approved posts under Object of Expenditure 1 in the Regular Fund were eliminated. Because of an express mandate in the first of these two resolutions, one of the posts eliminated was the one the Complainant had held since 1986. The Complainant was notified of this via a communication dated December 30, 1988, which was accompanied by copies of Staff Rule 110.6, of Directive SG/125/88 on the conditions for the ex gratia payments that had been authorized by resolution CP/RES. 514 (760/88), and of the waiver of the procedures provided for under Staff Rule 110.6, which was to be signed as one of the conditions for the ex gratia payment. That the last of these documents was to be submitted no later than January 13, 1989. However, the Complainant allowed the deadline to pass without exercising the option. From this the General Secretariat concluded that he preferred to remain in service. Therefore, on January 26, 1989, an approved post under Object of Expenditure 1 in the Regular Fund was offered to him. That the request for a hearing that the Complainant presented via a telex dated January 30, 1989, was examined by the Secretary General, who on February 15, 1989, decided that there were no grounds for it. That on March 3, 1989, the Department of Human Resources received the Complainant's request for reconsideration dated March 2. That on January 31, 1989, in compliance with the mandates of the General Assembly and the Permanent Council, the Complainant was transferred to the suspense account for the 60-day period of advance notice, and on March 31 he was terminated. That on June 2, 1989, the Joint Advisory Committee on Reconsideration delivered two reports to the Department of Human Resources, because there was a dissenting vote. That the Secretary General expressed his agreement with the Committee's unanimous conclusion that there were no legal grounds for Mr. Murgio's complaint and requested a study of the suggestion made by the majority of its members that he be paid the ex gratia benefit. His final decision was sent to the OAS Office in Argentina on June 30, 1989, via a telex of which the Complainant was informed on July 4. That the Complainant claims to have an absolute right to the procedure governed by Staff Rule 110.6. However, the Complainant's substantive right is to continue in the employ of the General Secretariat with a permanent appointment. The purpose of Staff Rule 110.6 is to guarantee the right of preference to remain in service in the event of a reduction in force. Therefore, that right is being observed if the staff member affected by the reduction in force is offered (1) another approved post in the Regular Fund, in accordance with articles 84 and 67 of the General Standards, that is (2) at the same grade and step as the post he previously occupied, as provided in Staff Rule 110.6(i)(ii), and (3) is one for which he meets the minimum requirements. That, in fact, the General Secretariat accorded the Complainant more rights than would have followed from the application of Staff Rule 110.6(i)(ii). According to that provision, for bumping to occur, the Complainant would have had to prove that he met the basic conditions of efficiency, competence, and probity as well as or better than the incumbents of the posts he identified. However, with respect to one of those basic conditions the Complainant is at a total disadvantage, since he has never proved that he has any university degree. Conversely, all the incumbents of the posts of direct services support officer have proved that they have university degrees. That in conclusion, from the standpoint of competence, the Complainant would not have been able to bump those members of the career service. That the procedure provided for in Staff Rule 110.6(h) would have resulted in an endless succession of bumping, at enormous financial, human, and administrative cost. That what the Secretary General did was to offer any member of the career service affected by the reduction in force who opted to remain in service an approved post under Object of Expenditure l in the Regular Fund at the same grade, with a job description appropriate to his qualifications and experience. This offer was made possible through cross transfers with career-service incumbents who had expressed an interest in accepting involuntary termination and receiving in return, in addition to the ex gratia payment, the indemnities and entitlements, approved under the regulations. That in this way the terms of Directive SG-125/88 were observed and the preferential right of the Complainant, as a member of the career service, to remain in service in the event of a reduction in force, in accordance with articles 17 and 40 of the General Standards and Staff Rule 110.6(d) and (e), was honored. That as is shown by the August 30, 1989, affidavit of Luis F. Gómez, in charge of the Department of Human Resources, the 22 members of the career service whose posts were eliminated but who opted to remain in service were offered approved posts in the Regular Fund. The offer was made possible by means of cross transfers with other members of the career service who opted to waive the procedures of Staff Rule 110.6. That offer could only be made after the desires of the people in each group were determined. That all 22 members of the career service have remained on the job, performing duties suited to their personal qualifications, except the Complainant, who rejected the offer. That under Staff Rule 105.5, the Secretary General can change the official duty station of a professional staff member. The duty station of the post offered to the Complainant was Washington, D.C., where he was originally recruited; where he served for 16 years (February 12, 1962, to January 31, 1977); where he married; where two of his three children were born; where he claims to have studied; where two of his three children are studying; where he has received medical treatment, purchased real estate, and incurred debts. Hence, this is not a duty station in a country so different and a culture so alien as the Complainant claims. That under Staff Rule 105.2, the Secretary General may transfer a staff member from one post to another at the same grade and salary provided that the staff member has the qualifications for the new post. Moreover, a professional staff member's refusal to accept a transfer without justified cause means his resignation, even when that transfer occurs as a consequence of the elimination of his post. That in spite of this, the General Secretariat paid the Complainant the indemnity provided for in Staff Rule 110.7. What it could not do, however, was give him the ex gratia payment, because he did not opt to accept separation; instead, he chose to remain in service. That the weakness of the Complainant's case is obvious from the fact that his demand is to be reinstated in the career service of the General Secretariat, in a post of the same grade and step as the one he formerly held. This is precisely the offer he rejected on January 30, 1989. That the General Secretariat has no approved post to offer the Complainant in Buenos Aires, which is what he requested of the Secretary General in his letter of January 26, 1989. The number of career staff members posted to that duty station was cut by virtue of General Assembly resolution AG/RES. 954 (XVIII-O/88). That the Secretary General's Directive SG-125/88, dated December 28, 1988, which is consistent with the mandates from the General Assembly and the Permanent Council, allowed all members of the career service to opt for the ex gratia payment in a case of involuntary separation. The reduction-in-force procedure, which would have been much more costly from both the human and the financial standpoint, was thus avoided. The entire staffing readjustment was completed by March 31, 1989. The cross transfers, furthermore, were applied alike to all those affected. That a transfer to a post of the same grade, which is one way of recognizing the right to remain in service in a case of reduction in force, does not require that the job description be seen beforehand. That the temerity and frivolity of his claim are patently evident given the Complainant's experience in budget-related matters and the fact that in 1982 his right to remain in service was recognized by means of a transfer without the Advisory Committee on Reduction in Force. That the principal petition made in the complaint is precisely the one that the Complainant rejected on January 30, 1989. That, for all these reasons, he prays the Tribunal to dismiss the complaint in all its parts and order the Complainant to pay costs. III. The attorney for the Complainant presented his reply and, after reiterating his previous pleadings, stated, inter alia: That is not fair for the attorney for the Respondent to attack, as he does, the professional reputation of the Complainant, a staff member with more than 26 years of uninterrupted service in the General Secretariat, during which time he has never received an unsatisfactory performance evaluation. That the Respondent contends that the present complaint is inadmissible because none of the conditions provided for in Article VI.1(a), (b), and (c) of the Statute of the Tribunal existed at the time it was filed. But he states in his answer that the Secretary General's decision was made on June 28, 1989, and announced on July 4 of that year. Since the complaint was filed one week later, on July 5, it is covered by Article VI.1(a). Hence, it was filed within the statutory period. That by not observing due process, the General Secretariat prevented the Complainant from enjoying and exercising his material right to the ex gratia payment. That the Respondent acknowledges the violation of due process owing to the failure to comply with Staff Rule 110.6 when he says that "(a) the Advisory Committee on Reduction in Force was not formed, and (b) no vacancies of approved posts under Object of Expenditure 1 in the Regular Fund occurred. . . ." That the attorney for the Respondent asserts that, of the 201 staff members affected by the reduction in force, only 22 wanted to continue to work in the General Secretariat and that by using the procedure that the Respondent calls "cross transfers" the General Secretariat was able to accommodate 21 of them. The exception, Case No. 22, is that of the Complainant, who was never offered a cross transfer but rather a vacant post. The agreements with the 21 employees who chose to leave and with the other 21 who had to be transferred were concluded before January 14, 1989. It is therefore obvious that the procedure provided for in Staff Rule 110.6 would not have resulted in the endless succession of bumping to which the attorney for the Respondent alludes, since that procedure would have been used in the case of only one person, the Complainant, to whom an offer was made on January 26, 1989. That the Secretary General has no right to replace legally established procedures in the General Secretariat with others and is required to comply with Staff Rule 110.6. That what the Complainant rejected on January 30, 1989, was a nonexistent vacant post, which is what the General Secretariat offered him. IV. The attorney for the Secretary General presented his response and stated, inter alia: That the Respondent acknowledges that the Secretary General's final decision was issued on June 28, processed on June 30, and announced on July 4, 1989, which means that the complaint is admissible. That with the authorization of the Secretary General, offers in writing of approved posts under Object of Expenditure 1 in the Regular Fund were circulated on January 26 and 27, 1989, to the 22 affected members of the career service who opted to continue in service. None of the 22 offers had a job description attached, because the need for various functions and their redistribution among the offices of the General Secretariat had not yet been determined. That the Complainant's situation was resolved without recourse to the reduction-in-force procedure, by means of a lateral transfer under Staff Rule 105.2. V. On May 1, 1990, pursuant to Article 14.2 of the Rules of Procedure of the Tribunal, the present complaint was entered on the list of matters pending consideration. Once the President had set the opening date for the thirty-third session, the pertinent steps were taken and the Tribunal was composed of Enrique Rojas Franco, President; Carlos Balsa D'Agosto, Vice President; and Alejandro Tinoco, Judge. The Tribunal met on May 14, 1990, deliberated on the case sub judice, and, in accordance with articles 17 and 18 of the Rules of Procedure, decided by Resolution No. 228 to take testimony and hold the oral proceedings on Friday, May 18, 1990. The Tribunal designated Enrique Rojas Franco to draft the judgment. Having examined the proceedings, the Tribunal now CONSIDERS: I. COMPETENCE OF THE TRIBUNAL The Tribunal is competent to hear the present case, pursuant to Article II of its Statute. II. INADMISSIBILITY OF THE ACTION ON THE GROUND THAT THE ADMINISTRATIVE PROCEDURES HAD NOT BEEN EXHAUSTED 1. The attorney for the Secretary General objects that the Complainant filed his case prematurely, without exhausting the administrative procedures, and thereby violated Article VI.1(a), (b), and (c) of the Statute of the Tribunal in relation to Article 12 of the Rules of Procedure. 2. The Tribunal considers this defense unfounded, since it has been demonstrated ad procesum that the internal administrative procedures were exhausted when the Complainant was notified of the Secretary General's final decision, which was to accept the recommendation of the Reconsideration Committee. This notification was given on July 4, 1989, and the brief that initiated the present jurisdictional proceedings was filed the next day. 3. It is important to note that the attorney for the Secretary General has not pressed the inadmissibility argument or objection. Nevertheless, the Tribunal notes that it is its ineluctable duty to verify for itself that the procedural requirement has been observed, since this is essential to the competence of the Tribunal and ultimately to the validity of the proceeding. The parties are required to exhaust the administrative procedures before resorting to the Tribunal and they may not forgo that procedure, as a matter of public order. III. PROVEN FACTS 4. There is no discrepancy between the parties as to the essential or fundamental facts. Those facts are, briefly, as follows: 5. The Complainant is 58 years old; an Argentine citizen; a member of the career staff serving in Buenos Aires, Argentina, with the CICAP Project in the post of senior specialist, grade M (P-4), in the professional category. At the time of his separation he had completed 26 years of service with the Organization, nine as senior specialist in Argentina, and had received satisfactory evaluations. 6. By resolution AG/RES. 954 (XVIII-O/88), adopted by the OAS General Assembly at its thirteenth plenary session, held on November 19, 1988, the following decision was taken:
7. In fulfillment of the mandates in that resolution, the Permanent Council adopted resolution CP/RES. 514 (760/88), whereby it approved the guidelines presented by the Secretary General. This reads in pertinent part (operative paragraph 1) as follows:
8. The General Secretariat issued the following statement, still valid and in effect, which reads in full as follows: Only Object 01 positions in the Regular Fund are relevant to this exercise. Furthermore, no vacant posts exist in the Regular Fund as of January 1, 1989. Displacement rights under Staff Rule 110.6 will be at the level of the functions, not at the budgeted level of the post. Displacements can only occur horizontally at a given level, i.e., at the grade of the incumbent. Seniority between staff members will be determined by the RIF Committee. (Emphasis in original.) 9. Pursuant to the mandates and authorizations cited above, the General Secretariat issued Directive SG-126/88, dated December 28, 1988, and adopted the following measures:
10. On December 30, 1988, the Director of the Department of Human Resources notified the Complainant that his post had been eliminated and that the reduction-in-force procedure provided for in Staff Rule 110.6 was going to be instituted. He was also told that the letter did not constitute notification of his separation, but rather the start of the process. He added that the Complainant could, however, avail himself of the ex gratia benefit instead of the reduction-in-force procedure, provided he completed, signed, and returned, before January 13, 1989, the communication attached to the notification. The letter went on to say:
11. At his own expense, the Complainant went to Room 660-I on the sixth floor of the General Secretariat Building on January 4, 1989, and the designated specialists, Miguel Renart and Lesley Zark, told him that there were no vacant posts in the Regular Fund because they had been eliminated. They confirmed this information by providing him with a copy of the Statement quoted in paragraph 8 above. They also gave him a copy of the Personnel Register of November 30, 1988, updated to January 1, 1989. On examining the Register, the Complainant identified a number of posts of interest to him, specifically those of direct services support officer, grade M (P-4), in the OAS Offices in Brazil, Chile, Colombia, Peru, and Argentina. The Complainant gave two reasons for his interest: (a) the fact that he had satisfactorily occupied such a post for nine years in Argentina, and (b) the fact that of all the staff members in those posts, he had the greatest seniority in the career service. In short, he preferred to avail himself of the reduction-in-force procedure and decline the ex gratia benefit offered as an alternative. 12. On January 26, 1989, telex MAN/DDHR/07/85AR, signed by the Director of the Department of Human Resources, arrived at the OAS Office in Buenos Aires, Argentina. The pertinent part of that telex reads as follows:
13. In reply, on Friday, January 27, 1989, the Director of the Department of Human Resources received the following telex:
14. On the same day, January 27, 1989, the Department of Human Resources sent the Complainant another telex repeating what it had said earlier and informing him that
15. The Complainant was not notified of the contents of this telex until Monday, January 30, 1989, because it had been sent on January 27 (a Friday) at 4:36 p.m. Washington time, and was received by the OAS Office in Buenos Aires after closing time on the same day. 16. Via a telex dated January 30, 1989, the Complainant reported that he was not accepting the offer of a post at OAS headquarters in Washington for the following reasons: the bumping right established in Staff Rule 110.6 had not been respected, he had not been given the job description of the post he was being offered, and he had been given just two working days in which to reply. Finally, he requested a hearing with the Secretary General, who upheld the decision and the course of action taken by the Director of the Department of Human Resources. The Complainant was so notified by telex on February 17, 1989. 17. By a letter dated January 26, 1989, the Complainant had already told the Secretary General that he thought he should remain in Buenos Aires at least one year more, because of his mother's health and his own and because he had work to do during the merger or elimination of the CICAP, CIDES, and CIET centers. 18. In a presentation dated March 2, 1989, the Complainant asked the Secretary General to convene the Joint Advisory Committee on Reconsideration. On March 27, he was notified that the Committee had been formed with the following members: Mario Yuri, Chairman, and Alfonso Caycedo and Manuel Marí, members. He was asked to ". . . please inform Committee via this same means if you have any objections to its membership." 19. On April 17, 1989, Mr. Murgio presented a written statement to the Reconsideration Committee. 20. On June 1, 1989, the Chairman of the Committee, Mario Yuri, and one of its members, Manuel Marí, sent their report to the Director of the Department of Human Resources. They concluded: ". . . Strictly speaking, there is no legal basis for Mr. Murgio's arguments that the procedure followed in his case by the General Secretariat did not conform to the Staff Rules." On the other hand, they suggested the possibility of the Secretary General's exercising his authority under the General Standards and Staff Rules, using clemency in this particular case to offer the former staff member the opportunity to avail himself of the ex gratia payment (or part of it) ". . . as it seems he would have done if he had had the right information at the right time." 21. For her part, Patricia Kennedy Acevedo, who had replaced Alfonso Caycedo as the General Secretariat's representative on the Reconsideration Committee, presented a separate report, with just one conclusion: From the facts and evidence it is clear that the case presented by Mr. Murgio is without foundation and lacks sufficient merit to warrant a recommendation in his favor. 22. On June 28, 1989, the Secretary General approved the Committee's unanimous conclusion that there were no legal grounds for Mr. Murgio's claim and did not accept the suggestion by the majority of its members that he be paid the ex gratia benefit. The Complainant was notified of the decision on July 5, 1989. IV. DUE PROCESS 23. The present case is being brought for the purpose of having the Tribunal nullify the Secretary General's decision of March 31, 1989, whereby the Complainant was dismissed from his post of senior specialist with the CICAP Project in Buenos Aires, Argentina. The argument in support of nullification, and of the consequent claims to damages and other relief, is, in summary, that the General Secretariat violated the legal standards governing the universal principle of due process. 24. The Complainant alleges that the General Secretariat breached the principle of good faith that, as an unwritten rule of law, must govern the Organization's internal and external relations. The Tribunal considers that in modern times this principle has come to be recognized as a rule of due process--the most material application of the values of justice and security that the law, as a human and social science, aspires to guarantee. At the root of the principle are the canons and rules by which public institutions are organized and, in particular, the legal and material relationships that develop between the users of a public service and the public entity that provides it. However, the principle applies equally to the internal relationships that govern that entity, as employer, and its employees. The theory is not a novel one, and all branches of law can be said to have recognized the principle of good faith as a compass or guide for any civil or business relationship. The principle conduces towards clear, well-defined, reliable rules in any bilateral relationship that gives rise to mutual rights and obligations. The legal concept is easy to interpret but difficult to demonstrate, since its basis in fact is subjective rather than objective. Nevertheless, in looking at certain real situations it is possible to determine when something has been done in good faith or, at least, when a legally ordained action has not been carried out in bad faith. Examples of bad faith are concealing defects in articles that are sold, trying to mislead a claimant by means of false or inaccurate information, or even hiding that information from him. 25. In the case sub judice, the Complainant alleges bad faith on the part of the officials of the Organization in that (a) they first induced him to refuse the special or ex gratia payment for early termination and agree instead to the reduction-in-force procedure, and (b) in the end they terminated him without following the reduction-in-force procedure and without giving him the ex gratia payment. 26. He bases his claim on a number of circumstances. First, on the Statement that was given him, which expressly stated that the General Secretariat could not appoint career staff in 1989. Secondly, on what he was told by Miguel Renart and Lesley Zark, professionals with the Department of Human Resources designated to assist him: that there was no post compatible with his level and grade. Finally, on the fact that when he examined the Personnel Register these two staff members gave him, he identified five possibilities for exercising his bumping right, at five different National Offices of the Organization. All this taken together caused him to believe that if he was to satisfy his personal desire to remain in the Organization's service in his country of origin, Argentina, his best course of action was to agree to the reduction-in-force procedure, thereby implicitly renouncing the special or ex gratia benefit. He believed that he would be able to continue in service in Argentina if the reduction-in-force procedure continued to be pursued in his case, especially the bumping right provided for by Staff Rule 110.6(h) in relation to Article 17.a(v) of the General Standards. This Rule provides for preference to members of the career service and, other conditions being equal, to those who have the greatest seniority in the career service. As was said above, the Complainant based his claim on the fact that he had more years in the career service than the incumbents of the posts of direct services support officer that he had identified, and on the fact that for nine years he had performed the functions of support officer at the OAS Office in Buenos Aires, Argentina. V. THE REDUCTION-IN-FORCE PROCEDURE 27. General Assembly resolution AG/RES. 954 (XVIII-O/88) expressly provided that the reduction in force was to be carried out in accordance with the procedures established in the Staff Rules and other applicable regulations, which meant that those provisions were in full effect. 28. The Tribunal considers that in the present case the General Secretariat properly carried out the first stages of the reduction-in-force procedure provided for in Staff Rule 110.6. The Complainant himself so acknowledges in the complaint brief. At a certain point, however, the General Secretariat deviated from the Rule, when a number of vacancies opened up that had not existed at the time the Complainant traveled to Washington in January 1989. As will be recalled, the Complainant had been told at that time that there were no vacant posts in the Regular Fund and he identified five posts of direct services support officer in various National Offices. He returned to Buenos Aires determined to refuse the ex gratia payment offered, because he was convinced that the next stage would be the bumping provided for in Staff Rule 110.6(i)(ii). He expected that during that stage he would be able to bump one of the five staff members in those posts in the National Offices, since he had greater seniority and, according to him, conditions were equal. 29. In the interim, however, new vacancies opened up as a result of the cross transfers. On January 26, 1989, when the original situation (no vacancies) changed, the Director of the Department of Human Resources offered the Complainant an approved vacant post in the Regular Fund, in the same grade, at the headquarters of the General Secretariat in Washington. At the same time, he was warned that if he did not accept the post he would be terminated in accordance with Staff Rule 110.6(i)(ii). 30. The next day, via a telex dated January 27, 1989, the offer was made to the Complainant for a second time; his request to be informed of the duties of the post was denied, and he was told that the deadline for accepting the ex gratia payment, January 13, 1989, had passed. In other words, he was given the following ultimatum: either accept the vacant post at headquarters or be terminated by reduction in force. 31. In the opinion of the Tribunal, this is where the procedural irregularity occurred. The General Secretariat should not have canceled the ex gratia payment, which the Complainant would have been entitled to choose in accordance with Permanent Council resolution CP/RES. 514 (760/88), adopted pursuant to General Assembly resolution AG/RES. 954 (XVIII-O/88). Under that resolution, the Complainant would have had until January 31, 1989, to accept the payment, not January 13, 1989, as the Secretary General's Chief of Staff claimed. The General Secretariat also had to inform the Complainant that if he did not accept the payment by January 31, 1989, it would transfer him, under Staff Rule 105.2. In the latter case, the Complainant's refusal to agree to the transfer, without justification, would have meant his resignation. Instead of doing this, it offered him the vacant post again and warned him that if he did not accept it he would be terminated in accordance with Staff Rule 110.6(i)(ii). It failed to take into account, however, that the administrative measure of reduction in force could only be adopted after exhausting the bumping procedure provided for in that Rule. 32. On the other hand, it is true that the General Secretariat offered the Complainant a vacant post. However, it gave him no information about the duties of the post, even though he requested it in a telex dated January 27, 1989. Admittedly, circumstances at the Organization were unusual at the time; accordingly, it would have been sufficient to send him a provisional, generic description of those duties and tell him what office he would be assigned to. The General Secretariat also failed to explain to the Complainant that the chance to offer him a vacant post had come about as a consequence of the cross-transfer methods used by the General Secretariat to avoid a bumping process that would have been so costly from the human and institutional standpoints. This probably would have cleared up the Complainant's doubts about the administration's good faith and would have given him sufficient basis for a well-informed decision on his institutional fate. VI. THE EX GRATIA PAYMENT 33. The Permanent Council resolution adopted pursuant to General Assembly resolution AG/RES. 954 (XVIII-O/88) ranks high among the Organization's sources of law. The deadline established by that organ for acceptance of the ex gratia payment in lieu of the reduction-in-force procedure was January 31, 1989, not January 13, 1989, as the Secretary General's Chief of Staff mistakenly established. Hence, the notification of the loss of the right to opt for the ex gratia payment was premature, and was invalid because it violated written regulations of a higher order. 34. The Tribunal has made an objective assessment of the situation in which the events related to the whole reduction-in-force took place. It is public knowledge that for many years the Organization has been in the grips of a grave and unrelenting financial crisis, with no immediate end in sight. The causes or roots of this crisis are many: for example, the United States' reduction of its quota and the failure of the other member states to pay their quotas in spite of the request, if not plea, that is made in any resolution of the Organization's political and administrative bodies. These motives are real, but they cannot be ascribed exclusively to the staff of the Organization. In the case sub judice, it should be borne in mind that the Complainant has 27 years of uninterrupted and satisfactory service in the Organization, that he is over 58 years old, and that he held a high grade in the classification system. It should also be borne in mind that the General Secretariat suddenly notified him that if he wished to remain with the Organization, he had to go to Washington at his own expense, which in fact he did, harboring legitimate hopes of bumping a staff member with less seniority in either Argentina or Uruguay, as a result of the bumping process expressly established in Staff Rule 110.6. The Tribunal considers that, for purposes of the initiation of this proceeding, the Respondent's contention that the Complainant did not have the qualifications necessary to bump the incumbents of the posts he identified are irrelevant. Staff Rule 110.6 expressly regulates the procedure to be followed in such cases. The General Secretariat notified the Complainant that he had to decide in two days whether to accept a post at headquarters and that if he did not he would lose his position with the Organization. It also informed him, incorrectly, that he had already lost the special ex gratia payment. 35. Under such abnormal or exceptional circumstances, it is possible that the General Secretariat did not have a description of the duties and responsibilities that the Complainant would have to perform, since it had initiated a cross-transfer procedure. The Tribunal finds it strange that the Complainant was never informed of the possibility of these cross transfers, especially since this was a staff member posted away from headquarters. It is struck by the peremptory tone of the replies from the Department of Human Resources, giving the Complainant only 48 hours in which to decide whether he would spend the last three years of his career with the Organization at headquarters in Washington, D.C., and not in his own country, as was his natural and very human wish. CONCLUSIONS 36. For all the reasons given, it can only be concluded that the Secretary General's administrative action ordering the dismissal of the Complainant, is partially invalid, since (1) his right to opt for the ex gratia benefit was canceled unlawfully, before the deadline set by resolution CP/RES. 514 (760/88), adopted pursuant to resolution AG/RES. 954 (XVIII-O/88), which constituted a premature action on the part of the General Secretariat, and (2) fundamental rules having to do with due process were not observed in dismissing the Complainant. By virtue of the foregoing, and pursuant to articles II, VII and VIII of its Statute, the Tribunal unanimously RESOLVES: 1. To uphold the Secretary General's decision to terminate the Complainant. 2. To nullify that decision only insofar as it eliminated the ex gratia benefit prematurely, which benefit is now granted to the Complainant without the assessment of costs.
Let notification be given. Washington, D.C., May 25, 1990
Enrique Rojas Franco, Esq. / President and author of the draft judgment Carlos Balsa D'Agosto, Esq. / Vice President Alejandro Tinoco, Esq. / Judge Martha Braga, Esq. / Secretary
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