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Judgment No. 138
Complaints No: 232, 252, 259, 263, 264 and 267. Martha Bellis, Miriam Oliver, Soledad Salas, Ruth Connolly, Nancy Irigoyen and Adelaide Farrah v. Secretary General of the Organization of American States.
THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES, Composed of Carlos Balsa D'Agosto, President, Alejandro Tinoco, Vice President and Morton Sklar, Judge, Has before it for judgment the proceedings on the complaints filed by Martha Bellis, Miriam Oliver, Soledad Salas, Ruth Connolly, Nancy Irigoyen and Adelaide Farrah against the Secretary General of the Organization of American States. The complainants were represented by Dr. Luis Illanes and the Secretary General by Drs. William M. Berenson, Louis G. Ferrand and Ruben A. Farje, in conformity with Article 22 of the Rules of Procedure of the Tribunal. WHEREAS: I. On August 14, 1996, Dr. Luis Illanes appeared in representation of the complainants, Martha Bellis, Miriam Oliver, Soledad Salas, Ruth Connolly, Nancy Irigoyen and Adelaide Farrah, to file a complaint, as authorized by Article II of the Statute of the Administrative Tribunal, against the Secretary General of the Organization. After complying with the requirements pertaining to the personal and official status of the complainants, he stated, inter alia: That in 1994, through Resolution AG/1275, the General Assembly ordered the performance of an audit of all positions for eventual adoption of the United Nations compensation system. The General Secretariat received instructions that the audit be undertaken in accordance with the standards, procedures and classification methods used by the United Nations. CP/RES. 631 (989-94), AG/RES. 1275 (XXIV-094) and AG/RES. 1319 (XXV-095). That rule 105.4(a) of the OAS Staff Rules points out that a staff member may be adjusted to a lower grade if the position he/she holds is reclassified. When this occurs, the staff member shall retain the same salary and benefits as those of the position he held formerly. That paragraph I.3 of the United Nations Post Classification Manual specifies that the classification system is characterized by "level of position," and discusses the differences between it and the "level of the employee." Paragraph II of the same manual alludes to evaluation methods, but the instructions included on the classification system for professional positions establishes how the classification is to be carried out, as well as the fact that the personal rank is not reduced when the level of a position is adjusted downward. It also indicates what method should be followed for general services positions. That the United Nation rules on position reclassification are essentially the same for both professional and general services positions, even though the two are dealt with in different instruments. Both instruments make a difference between the classification, the level of positions in the classification and the level of an individual staff member, and state that the classification pertains to the position. In both cases, the rules state that a position's classification will not affect the contractual status, salary and other rights of the staff member occupying the position. The complainant notes that the rules allude to rights, not only to benefits, and if there is any doubt as to whether the level is a benefit, there is none about it being a right. That the OAS General Secretariat received the order to adopt the classification standards and methods that were in effect in the United Nations at the time the job audit was conducted. Once the post classification process was completed, and no matter what its results were following full application of the system, the following step was to make the transfer to the UN compensation scale. As a result, for those cases in which the positions were reduced in level, the person holding the position was not to be deprived of his/her personal grade. That as a prior petition, the complainant requests the Tribunal to declare that the General Secretariat, in compliance with the instructions received from the Permanent Council and the General Assembly, was to apply not only the United Nations classification standards, but its procedures and methods as well. What is more, it was not to deprive staff members of their grades, if their positions had been adjusted downward, or other rights, and it was to keep them in their present grade as the staff members who had held the positions (incumbents). That with respect to the general audit of positions, the complainant indicates that the classification procedure was carried out with administrative irregularities. Several circulars extended the deadlines or established requirements in violation of Rule 113.4 of the Staff Rules, which empowers the Secretary General to grant exceptions to the rules. The extensions were owed to technical flaws in the process in that each staff member was offered a report of his evaluation, which turned out to be a numerical grade assigned to several different factors. In view of the inadequacy of the report, the General Secretariat once again hired the Public Administrations Service (hereinafter called PAS) Company, which had conducted the audits, and provided an evaluation report to any person who requested one. That during the reclassification process, there were administrative irregularities and inadequate technical preparation of the staff as well. The process was started by instructing each staff member to prepare a personal description of his job, but without giving adequate preparation to do so. That during the audit review process, technical flaws arose as well. Numerous circulars stated that it was necessary to mention specifically the factors that were being challenged and the reasons behind the claim. Circular 95/95 indicated that the auditors would review specific errors, and that the contested classification could not be reduced. From this one can infer that the auditors were to revise only the contested factors and if they changed the point score for a factor that was not contested, they would do so only to increase it, but not to decrease it. It did not happen this way, and in many cases the score for uncontested factors was reduced. That the audits reflect arbitrary results. The evaluations of the positions and the understanding of the different factors have a subjective component, although this is smaller in a system that addresses positions. The rigor that was applied to the audits shows the inconsistency of trying to adopt a system partially, and to not adopt it as a whole, as instructed. Such rigor is applied in the United Nations because the personal rank of the staff member is not affected. Another example of arbitrary action is that in some cases the positions were adjusted upward because their equivalent positions in the United Nations had a higher level, while in other cases the level of the position was not retained at the level of the counterpart position in the United Nations. That the procedural requirements have been carried out to file a complaint with the Tribunal since, in several circulars, Circulars 61/95, 82/95 and 95/95, the administration indicated that any staff member who wanted to file a complaint with the Administrative Tribunal could do so directly since the General Secretariat was not granting either hearings or reconsiderations, and all the complaints are within the deadline established by Article VI.2 of the Statute of the Tribunal. That to summarize the complaint, the complainants request the Tribunal to declare that the General Secretariat, as a result of the general job reclassification, ordered by the General Assembly, which was to be conducted in accordance with the rules, procedures and methods in effect in the United Nations, may not lower the personal grade of employees whose positions have been adjusted downward. That if appropriate, to order a reclassification of the position they currently hold for having been classified erroneously. That if the Administrative Tribunal decides upon a special expert report, the classifier who is appointed shall issue his report after having interviewed the complainants. That court costs, at the rate of US$600 per complainant, attorney's fees and all payments that might be appropriate to the order of the OAS Staff Association, be reimbursed. That in particular, the complainants request:
II. The attorney for the General Secretariat responded to the complaint in good time and form, and in this connection, stated, inter alia: That resolution AG/RES. 1319 itself refutes the charge of the complainants, since operative paragraph 1 (a)(ii)(b) states clearly, in replacement of the policies published by the UN Secretariat, that "every staff member whose position, as a result of the audit...is classified to a lower grade, shall assume the new grade of the position." The General Secretariat placed the complainants in the grades that pertained to them in accordance with the findings of the 1995 classification process. The complainants ignore this paragraph and focus their attention on paragraph 1 (a)(I), which instructs the General Secretariat to "adopt and put into practice the rules and methods of classification used by the United Nations." They also indicate that because the United Nations General Secretariat has adopted the policy of not adjusting downward those staff members whose positions have been reduced in level, the OAS General Secretariat should do the same, as if this were a "classification method." That this line of thinking is flawed. It is not the UN Secretariat, but really the International Public Administration Commission that establishes the classification rules and methods and, therefore, the UN Secretariat's policies on assigning grades to individuals after a position classification do not constitute a rule or a method. Furthermore, the determination as to whether a staff member is classified into a lower grade or retains the previous grade following a reclassification process is part of the process of implementing the findings of the audit and is not a rule or method. Even if the policy of the United Nations Secretariat were a "classification method," it would not apply in this case because the special governing order on implementation of the audit (AG/RES. 1319) would take precedence over the general rule that deals with the same subject. That, as the complainants also admit, the UN system is to classify jobs and not persons. Therefore, the skill, experience and work history of an individual are all irrelevant. The term, "the classification rules and methods," as used in the United Nations common system relates to the rules and methods to classify positions and not individuals. The Administrative Instructions of the UN Secretariat constitute statements of policy and the practice followed and published by that same Secretariat, but only for implementation within the Secretariat itself; they are not binding on the other organs of the UN system. That the paragraphs of the preamble and the operative part of Resolution AG/RES. 1319 show that it was the intention of the member states to have the Secretary General retain the power conferred to him by Rule 105.4 of the Staff Rules to reduce a staff member to a lower level as a result of reclassification of the position to a lower level. The decision to reclassify the complainants at lower grades did not violate their acquired rights. Staff Rule 105.4, which is part of the labor contract, has always held that the position of a staff member could be adjusted to a lower grade as a result of a reclassification and that the staff member would be placed at the new grade. In addition, the acceptance of the new compensation system by the staff in the referendum confirmed the applicability of Rule 105.4. Finally, it is pointed out that no staff member has suffered any reduction of compensation received as of June 30, 1995, for his or her former and highest grade. That the complainants do not have an acquired right to a grade that corresponds to the UN classification system since they have never held such grades. The reclassification policy for UN Secretariat staff members does not apply to this case not only because the OAS General Secretariat has adopted its own policies and procedures, but also because the circumstances are completely different. The intention of the UN Secretariat's policy is to benefit those staff members who obtained their grades under the UN system, based on the levels of the positions they held. None of the complainants, prior to the performance of the 1995 reclassification, had obtained a grade within the UN classification system but had held a grade under the system of the OAS General Secretariat. That the OAS General Secretariat carried out an audit of the positions of the complainants in accordance with the United Nations rules and methods of classification. The statements that the audit was arbitrary and incomplete and failed to take into account all relevant factors are not consistent with the facts. The General Secretariat invested a great amount of its time and resources into hiring experienced personnel to conduct the audit and to assist staff personnel in the review process, and adopted measures to ensure maximum involvement of the staff during the audit. That the questioning of the legal foundation for implementation of the general job audit and the later revision process lacks factual and legal grounds. The Secretary General has full power to issue rules on the classification of positions and to order audits of them, and this is recognized by Article 112 of the Charter and Article 34 of the General Standards. In addition, resolutions AG/RES. 1275 (XXIV-O/94), CP/RES. 631 (989/94) and AG/RES. 1319 (XXV-O/95) were issued in accordance with these rules. The Secretary General established a special process to deal with complaints in accordance with his power to make exceptions to the Staff Association rules, as conferred by Rule 114.4© for an agreement entered into with the Staff Association and in accordance with the principles of due process. That the General Secretariat, in consultation with the Staff Association, executed a special revision process carried out by experts in this field. The complainants allege that this process was carried out in an irregular manner and that their rights were violated as a result. These accusations are unjustified and are not consistent with the facts. For the revision process, the General Secretariat prepared the staff adequately and did not skimp on either time or money to do so. Experts were hired to advise the staff on the methods and rules for classification used in the United Nations, and a Review Committee was formed consisting of staff members. That there is no proof of lack of objectivity in either the general audit or in the review process. The statements of the complainants are subjective in nature and stand in opposition to the technical and authorized opinion of the PAS auditors and of the experts who were on the review panel. That in view of the foregoing, the Secretary General requests that the complaints be dismissed and that none of the requests be accepted; that the Tribunal should issue no decision on the level of the positions held by the complainants until a full audit report of the jobs is undertaken by an independent auditor designated by the Tribunal, and that when the appointed auditor confirms the level of their positions, the complainants who rejected the proposal formulated by the General Secretariat in Section IX of the rejoinder, be required to pay all the expenses and costs incurred by the Secretary General. III. The attorney for the complainant presented a written statement of reply in good time and form and, after repeating what was said previously, expressed, inter alia, the following: That in its response, the Secretariat maintained with respect to General Assembly Resolution AG/RES. 1319 that the classification rules and methods refer to the positions, and not to the policies to implement the results. This restriction excludes all other stages of the process, that is, the description of the positions and the methods for putting a classification into practice. That the Secretariat was to amend staff rule 105.4 which was incompatible with the new classification system prior to the reclassification, and to separate the position level from the grade of the individual to protect the rights of the employee, following the method used by the UN. However, it has only stated that this rule had little to do with benefits and salaries. That there is no grounds to argue that it was the intention of the lawmakers to keep the Secretary General's authority to reclassify intact. It is also inappropriate and contrary to legal thinking to hope that a guiding rule should be challenged starting with its entry into effect and to not apply it to a specific case, as the Secretary General seeks to do, on the grounds that more than one year has lapsed since the referendum was passed and its validity has not been questioned. That if a true policy had existed for this transition period, special correction factors could have been adopted to help avert the injustices of a system that paid no attention to the personal conditions of the person holding the post and who, when the implementation takes place, is reduced with the level of the position, in consideration of the unavoidable subjectivity in appreciating the factors, a fact recognized even by the audit firm. That the Secretary General alludes erroneously to the referendum as an expression of staff acceptance not only of the change of the compensation and benefits system, but related matters as well. This is not the case, in the particular instance of rule 105.4, the staff did not approve it (it is not even within their power to do so) since the classification system had already been adopted by Resolution AG/RES. 1319. The fact that information had been given to the staff that has allowed them to make observations, and that even if some of these observations had been accepted, does not mean that there was either the opportunity or the possibility to reject any rule. That the Secretary General has stated that the UN classification method is for positions and not persons, and that the users of the UN common system can adopt implementation rules freely provided they are compatible with the stipulations of the Public Administration Commission. However, and contrary to this case, all the international agencies mentioned by the Secretary General do apply the same standard of not changing the grade of the individual when the level of position is changed, because failing to do so would be incompatible with the system. That the petition of the complainants does not speak to their reclassification but, to the contrary, to their desire that their personal rank be kept intact. The Secretariat attempts to discredit this just and legitimate aspiration by charging that the OAS and the UN classification systems are absolutely different. In no way is this true, as can be deduced from historical and practical factors that show their substantial equivalency even after 1984 when the OAS separated itself from the UN system. These are factors that have been confirmed by the PAS auditing firm and by the Secretary General. In addition, the aspiration of the complainants cannot be dismissed on the basis of maintaining that they do not have a work history to sustain them, since the UN classification system does not pay any attention to the personal background of the individual holding the position when that position is classified or assigned a given level. That the reclassification process is not useless if the personal rank is maintained because reclassification is a gradual process of institutional re-structuring that leads to normalization of the levels of the jobs and the grades of the occupants not only by means of retirements but also by means of transfers and promotions. In addition, this is not a matter of allowing the complainants to hold illegally classification levels that they never obtained under the UN system. The purpose of the General Assembly when it authorized the general position audit was not to reclassify persons, or at least this was never stated as the objective; this would amount to trampling of the legitimate rights of the employees. That the conclusion of the General Secretariat is contrary to law because the sense of the instructions and the general understanding was not to adopt only the organizational methods of positions. But if that was indeed the scope, it should have said that "standards and methods prepared by the ICSC," since the OAS has not joined the UN common system, and Resolution AG/RES. 1319, when it wanted to refer to the ICSC, did so by specific use of its name. The conclusion is also contrary to logic because the standards and all their methods of application form the United Nations job classification system as a whole. The conclusion is contrary to the facts because even though the General Secretariat maintains that the UN implementation practices did not obligate it, it did not hesitate to incorporate those methods into the preliminary or analysis stage of the position. That there are also no grounds to assert that an "implementation policy" is different from a "method" simply because it is used in a different stage of the classification system. In addition, at no time do the dispositions mentioned allude to policies, but they simply include the rules. And it is these rules to which the Secretariat alludes as practices, and this does not cause them to lose their conceptual essence as a method. In any event, the so-called implementation policies, a method strictly speaking, are an integral and essential part of the system that was ordered to be adopted. That the General Secretariat indicated the powers and authorities of the Administration but it never explained any policy that the OAS had, not to mention the grounds for it. With respect to what the Secretary General calls, "a policy for implementation of the UN classification," that party never informed nor gave any background information about its existence and as a result, no one could have known that the two policies "were clearly different." That the Secretariat hid information and deceived the staff regarding the UN position classification system or committed an error in the way it adapted the system, and is now attempting to justify it, instead of correcting it. That the proposal was to incorporate reduction in grade as a sanction, as is the case within the UN, but the staff was opposed to this. The Secretariat acknowledged that opposition and withdrew its proposal to avert a discussion that could bring to light the fact that the reduction by reclassification was an absurd and inconsistent measure. That the Secretary General cites Judgment No. 13 of this Tribunal (Alaniz vs. Secretary General) to contend that the complainants cannot seek to obtain the best of the two systems. It resorts to an absurd distortion of the complaint and the reasoning of the complainants. Retaining the personal rank of the individual when a position is reclassified is not an attempt to keep the best of the old system, but to make a comprehensive and correct application of the new system. Keeping the personal rank is a consequence of adopting this latter point. It is not the complainants who seek to keep the old system, but the Secretariat, which is now attempting to restrict unduly the application of the new system. That the Secretary General seeks to extend certain express reservations on the adoption of benefits to the reclassification system without any reason to justify it. The restriction that certain benefits cannot be adopted fully by the OAS might be justified for the reasons that are expressed, but it is impossible to know what relationship exists between the grounds mentioned and the reclassification of positions. That with respect to the exercise of the general audit of positions within the Secretariat, the Secretary General focuses his response on showing that this exercise was a very well planned and correctly executed technical process and that the criticisms leveled by the complainants are unfounded and erroneous. The Secretary General goes into a lengthy description of the process, the contracts signed, the terms of reference and other background. He does so, however, without considering that the technical deficiencies, like the errors, are explained, but continue in effect until they are corrected. In this sense, the first error incurred in this entire process (which is clear and confirmed by the PAS reports) is having initiated this change in the belief that the OAS and UN position classification systems were different, leading, thereby, to a discrepancy between the results of the audit and the United Nations Position Manual. That technical deficiencies also existed. One was in the process of the job descriptions that resulted from entrusting the staff members themselves with preparing these descriptions. This restricted the work of the auditors when they found inconsistencies with the actual functions of the employees. They were unable to correct these inconsistencies and were forced to develop a classification consistent with the descriptions. This led, then, to a double error, one in the description and one in the classification. It is not known whether there were any objections to the job descriptions during the audit, but if there were any, they were not made known to the affected party. That the Secretariat attempted repeatedly to compromise the Staff Association over the life of the process. The attitude of the Association has been perfectly clear in stating that it recognizes that the Secretariat had and continues having structural problems but that the solution was not a reclassification of positions or the timing of doing this. An adequate study could have been the starting point to adopt corrective measures. The president of the Staff Association set out the Association's points of view in all clarity, but this was no obstacle to arriving at timely agreements to resolve certain problems. Under these conditions, the Association participated in the agreement in connection with the method of revising the errors in the audit, as taken up in point II-2.3. However, the Association reiterated in writing to the Assistant Secretary of Administration, the Assistant Chief of Cabinet and to the Office of the Director of the Department of Human Resources that this agreement was limited only to the specific matter of the agreement and did not constitute an acceptance or support for the process in general. The General Secretariat has hidden information on the content and the conditions of the reservation set out by the Staff Association. That the Secretary General contends that the complainants have not suffered any injury by stating that even though their grades were reduced, their salaries were kept the same. This alone would not be enough to avert any injury. The Secretariat negotiated, however, with the staff before the referendum and agreed that all the employees would actually receive the pertinent cost of living and step increases. That with respect to the steps, problems have arisen doubtlessly because there would be greater certainty with the formal recognition of the "personal rank" of the incumbents. In any event, there is an undeniable injury in the reduction of the personal rank because not only is the income factor at play, but there is also the matter of the dignity of the employee, which is affected when his or her rank is reduced and in some cases, persons have been placed at lower levels than others who used to be under them. That the Secretary General has presented the contracts and the terms of reference of the company selected to execute the order. However, these terms of reference were not carried out in full, as in the case of the interviews, which were to have a minimum duration of 45 minutes. In many cases, the interviews did not last that long. In addition, the PAS company agreed to issue a written report of each audit and the Secretariat agreed to distribute it to the employees. In this, too, there was a failure because the Secretariat did not deliver the audit reports within the offered time frame. It did not provide them because it did not have them, as was demonstrated by the fact that it had to hire the same firm again to obtain the reports and to comply with the agreement. Explaining an audit at the time of execution is not the same thing as justifying it a posteriori. That more than 300 employees, among them all the present complainants, requested a hearing when the results of the audit were made known. The president of the Staff Association asked that the rules in effect be respected and that a full revision of the audit be made without the original company that conducted it participating. The Assistant Chief of Cabinet offered to provide a copy of the recommendations made by the auditors on each position audited. The Office of the Assistant Secretary of Administration announced that mechanisms would be established to review the possible errors committed in the audit and that hearings officers and reconsideration committees would not be appointed. The staff agreed with the special procedure and basically did not reject it because it had no other choice since the regulatory procedures were suspended. That the president of the Staff Association concurs with the agreement to implement the audit revision mechanism which, in any event, corrected 40% of the errors committed. However, the president clarified that he concurred with this agreement to settle problems, but not to support or share the concept, execution and implementation of the audit in general. When this occurred, the audit revision process had been announced and information provided on the system and assistance from the Secretariat in the complaints. After this, the revision was entrusted to the same firm that had conducted the audit. That the staff members want to know why they were reduced in classification and the Secretariat wants to report on how the position were classified. A total of 175 employees presented formal petitions for revision of their position classifications and of these, 69 were corrected. Of the remaining 106 cases, 38 have decided to file with the Tribunal and 7 have requested a new audit. That another observation is that the Secretary General included the OAS Job Classification Worksheet with each case. This worksheet contains a final note which includes the score, the grade assigned and, under the name of result, in most of the cases, a letter D, which indicates that the position has been downgraded. The complainants sustain correctly that they have been "downgraded", because they were so notified by the Secretariat itself. That in this case there is a prior petition that the complainants consider most important. Basically it consists of the assertion that when the Secretariat adopted the UN post classification system, it was obligated to respect the personal rank of the complainants, independently of the level that was assigned to the position. In place of this, and in the event that their chief complaint was not acknowledged, they have indicated also that the positions they held were not correctly classified. That on the basis of the preceding Observations, the complainants request the Tribunal to reject all the petitions of the Secretary General against the complaint filed because of insufficient grounds, and to declare that the General Secretariat was not entitled to reduce the personal rank of the employees as a result of the general position audit. These employees should retain that rank in view of their status as the present holders of their individual positions. IV. The attorney of the Secretary General presented a written statement of Comments in proper time and form, and after reiterating all that was said before, stated inter alia, the following: That based on the facts as stated and the arguments made by the complainants in their written statement of Observations, the complainants are still ignorant or unaware of the terms of General Assembly Resolution AG/RES. 1319 of June 8, 1995. That the complainants contend that the Answer did not void or weaken the legal validity of their complaint, but merely confused the issue "with a large amount of background information that was of dubious relevance or which confirmed facts that were not in question." However, since it was the complainants who introduced in their complaint a series of unfounded accusations and assertions, without attaching any evidence from them, the Secretary General was put in the position of having to deny those accusations by describing all the facts precisely and in detail, and especially, basing every fact described and argument made on the pertinent documentary evidence. That none of the evidence attached to the Answer is of "dubious relevance," as the complainants contend. Most of the evidence consists of official pieces of evidence drawn from the offices of the General Secretariat and the organs of the Organization, and all, without exception, are related to the general audit process and to Resolution AG/RES. 1319, which the complainants question. In conclusion, the following question is asked: Can the complainants actually argue that the full version of Resolution AG/RES. 1319 is of "dubious relevance?" That the Secretary General confirms fully the explanation of the facts and of the arguments contained in the rejoinder and adds that the complainants themselves purposefully omitted making any comment in their Observations with respect to themselves having admitted in their own individual demands that the rules and the methods of classification of posts of the UN common system do not contain methods on how the individual staff members should be treated when the position that he or she holds is reclassified. That for the purpose of supporting the argument that the classification grades set under the post classification rules and methods formerly in effect be retained, the complainants even contend that the position classification rules and methods that were in effect in the OAS General Secretariat and the UN position classification rules and methods are the same. As a demonstration of how inconsistent their statements are, the same complainants contradict themselves in their Observations and no longer state that the position classification rules and methods are equivalent, but now just similar. As is obvious, all position classification systems in the international public sector have similarities, but to go from this to maintaining that, despite the reasons mentioned and the evidence provided in this case, the two systems are equivalent is very different and is out of touch with reality, to say the least. That with respect to the general job audit and the process of reviewing results, in their written statement of Observations, the complainants do not question the great majority of the facts cited and the arguments made by the Secretary General in his Answer, and as a result, the only conclusion that can be drawn is that they recognize them as true and valid. That the Secretary General rejects in their entirety the points made by the complainants in their written statement of Observations. These persons had all the safeguards of due process during the general position audit and during the results revision process. The preparation of the job descriptions had the participation of all the staff members and was under the supervision of experts and of the Department of Human Resources. The complainants were interviewed for the amount of time that was necessary by the auditors of the PAS company. The General Secretariat provided to all staff members the results of the audits of the positions they held and, without being legally obliged to do so, provided additional information on the manner in which the audit of the individual positions had been conducted. The Staff Association voluntarily participated in the entire position classification process. That since the OAS General Secretariat has complied fully with the provisions expressly stated by the supreme organ of the OAS, the General Assembly, in Resolution AG/RES. 1319 of June 8, 1995, regarding the manner of placing staff members in the positions classified in accordance with the United Nations Classification Rules and Methods, following the general position audit of 1995, and, furthermore, having reliably proven that the general audit was implemented in a technical manner, with respect in all of its stages for due process and with ongoing participation of the staff members and their representatives, both reason and law favor the positions of the General Secretariat in this process. Each and everyone of the unfounded allegations of the complainants has been shown to be untrue in a clear manner, without leaving any doubt, and consistent with the text itself of Resolution 1319 and with each one of the supporting documents of the execution of the 1995 general audit. That the General Secretariat proposes that full audits be carried out by an independent expert, in accordance with the United Nations position classification rules and methods. That to this time, the complainants have not proved nor have they offered to prove, in a technical and impartial manner, that the positions they hold should be of a higher level than they now are. That in violation of the Rules of Procedure of the Administrative Tribunal, the complainants seek to add documents to the file in an untimely manner. All these documents were at the disposal of the complainants and they were to have presented them good time and not now at this stage of the proceedings. With respect to this, the second paragraph of Article 9(e) of the Rules of Procedure of the Administrative Tribunal states, "evidence shall not be admitted by the Tribunal that is offered by the parties after the initial document entering the complaint or that of the answer to it, unless it is a case of supervening evidence..." but none of the evidence provided by the complainants is supervening in nature. On this point, in Judgment No. 95, Marylin Brunetti and others vs. Secretary General of the OAS, the Administrative Tribunal recognized that supervening evidence was "that which shows a fact but which at the moment of filing the case, or when the deadline for presenting evidence lapsed, it was in existence but was unknown or was not available despite the diligence of the parties" (see fojas 28-29). There is not a single piece of evidence contributed out of time by the complainants that was unknown to them or which they could not have obtained within the legal time limits with any diligence and as a result, such evidence does not have the status of supervening. That as a consequence of this illegal and anti-juridical offer, the Secretary General requests this Tribunal to order the immediate removal from the file of all these pieces of documentary evidence in strict compliance with the procedures established in the rules of procedure of the Administrative Tribunal. That in addition, the Secretary General requests the Tribunal to decide, if appropriate, to dismiss the complaints and to not accept any of their petitions, and to impose expressly fees and costs. The Tribunal should not issue any decision on the level of positions occupied by the complainants without a full audit report of the positions, completed by a professional auditor designated by the Tribunal, who has not undertaken previous works, either for the General Secretariat or for the Staff Association, and who has full experience with the United Nations position classification rules and methods. The complainants who have rejected the proposal formulated by the General Secretariat in Section IX of its rejoinder, including the auditor appointed by the Tribunal who has confirmed the level of their positions, should pay to the Secretary General all the fees and expenses that he has incurred to articulate this defense, including the fees of the attorneys of the General Secretariat. V. In terms of indicating clearly the aspirations of the complainants, it has been drawn from the individual attachments presented by each one of the complainants that the audit of the PAS firm and the General Secretariat Review Panel have reclassified the complainants under the following score and categories, as follows:
VI. In accordance with Article 14, paragraph 2, of the Rules of Procedure of the Tribunal, the complaints of Luz Alvarez (230), Carmen Avendaño (231), Martha Bellis (232), Enrique Blanco (233), Clemencia Bocanegra (234), Pilar Bonariva (235), Eduvigis Bradley (236), Rina Chaves (238), Yolanda De Leon (239), Estrada-Jones Cecilia (240), Gladys Fonseca (241), Garcia Jorge (242), Catalina Hall (243), Oscar Harasic (244), Cecilia Herrera (245), Maria de Jimenez (246), Jorge Kaufman (247), Osvaldo Kreimer (248), Luis Lizondo (249), Patricia Long (250), Marvin Matus (251), Miriam Oliver (252), Bertha Peredo (253), Ruben Perina (254), Alicia Raugitinane (255), Roberto Ribeiro (256), Jorge Rodriguez (257), Reinaldo Rodriguez (258), Soledad Salas (259), Bertha Santoscoy (260), Rose Marie Uriona (261), Manuel Velasco (262), Ruth Connolly (263) and Nancy Irigoyen (264), were filed with this Tribunal in the docket pending consideration on August 19, 1996. The complaint of Elizabeth de Rivas (265) was filed with this Tribunal on the docket pending consideration on September 18, 1996. The complaint of Iris de Lopez (266) was recorded with this Tribunal on the docket pending consideration on September 26, 1996. The complaint of Adelaide Farrah (267) was filed with this Tribunal on the docket pending consideration on October 3, 1996. VII. On May 9, 1997, the Tribunal issued Resolution 309, which orders:
VIII. On August 11, 1997, the representative of the Secretary General presented a request to extend the previously indicated deadline by thirty days because there was a possibility of reaching an agreement with respect to most of the cases. The representative of the complainants went to the Secretariat of the Tribunal to state his agreement with this particular matter. The term was extended, with explanation, from August 12 of the same year, to September 19, 1997, after receiving the approval of the president of the Tribunal, Dr. Carlos Balsa D'Agosto. IX. On August 27, 1997, Mr. Ruben Perina withdrew complaint No. 254, thereby reducing to 36 the number of reclassification cases pending before this Tribunal. The Secretariat of the Tribunal made note of that act, with explanation, on September 5, of the same year. X. On September 16, 1997, the parties presented a conciliation agreement that committed 26 of the 34 complainants. Two additional complainants joined the agreement on September 18, producing a total of 28. Under this conciliation agreement, the complainants Luz Alvarez (230), Carmen Avendaño (231), Enrique Blanco (233), Clemencia Bocanegra (234), Pilar Bonariva (235), Eduvigis Bradley (236), Rina Chaves (238), Yolanda De Leon (239), Estrada-Jones Cecilia (240), Gladys Fonseca (241), Garcia Jorge D.(242), Catalina Hall (243), Oscar Harasic (244), Cecilia Herrera (245), Jorge Kaufman (247), Osvaldo Kreimer (248), Luis Lizondo (249), Patricia Long (250), Marvin Matus (251), Bertha Peredo (253), Alicia Raugitinane (255), Roberto Ribeiro (256), Jorge O. Rodriguez (257), Reinaldo Rodriguez (258), Bertha Santoscoy (260), Rose Marie Uriona (261), Manuel Velasco (262) and Elizabeth M. de Rivas (265) suspended their complaints before the Tribunal and submitted their positions to a new audit under the conditions of the 1994-95 period, in one or two stages (documentary audit and audit of positions). XI. On October 1, 1997, the President of the Administrative Tribunal ordered through Resolution No. 313:
XII. On October 30, 1997, the Secretariat of the Tribunal received a written statement in which the complainants Enrique Blanco (complaint No.233) and Iris Tejada de López (complaint No.266) stated that they wished to withdraw their individual complaints. That request was accepted by means of Resolutions 317 and 318, respectively. XIII. After the president had set the starting date for the forty-third regular session, the Tribunal was composed of Carlos Balsa D'Agosto, President, Alejandro Tinoco, Vice President and Morton Sklar, Judge. XIV. The Tribunal opened its session on November 3, 1997. XV. By means of Resolution No.319, the Tribunal ordered:
XVI. In furtherance of the instructions handed down in Resolutions Number 313 and 319, Buck Consultants, Inc., submitted the findings of its expertise work to the Secretariat of the Administrative Tribunal on November 3, 1997, which summarized the results of the audits. XVII. The work of the audit delivered to the Tribunal by Buck Consultants, Inc. on November 3, 1997 (fojas 075-3 to 105) was accepted by the Secretariat of the Tribunal and accepted, with explanation, on November 7, 1997. That written statement was revised by the Tribunal whose three members undertook cross-examination with respect to its conclusions and requested the company to provide a written statement developing the matter further, which was submitted to the Secretariat of the Tribunal by the Buck Consultants firm on November 6, 1997, and accepted with its pertinent explanation on November 7 of the same year. Since the Buck Consultants report differed from the conclusions reached in the PAS audit, contracted by the Administration, the Tribunal, having available to it the expert report and its development, both oral and written, considered: a) the capacity shown in the evaluation and the professional nature of the responses; b) the personal interviews with the complainants; c) the designation and payment through the Tribunal; d) the responses to the questions asked by the Administrative Tribunal. In addition, the representatives of the parties, while not requiring a public hearing to question the expert, as provided by Article 17.2 of the Rules of Procedure of the Administrative Tribunal, had the opportunity to question the expert during a joint meeting allowed by the Tribunal. In this meeting, the members of the Tribunal met with the representatives of the parties and the Buck Consulting firm, as explained below:
The Secretariat did not keep minutes of these meetings since all the parties agreed on the informal nature of these hearings, as allowed by Article 17.7 of the aforementioned Rules of Procedure. Having examined the proceedings, the Tribunal now CONSIDERS: I. COMPETENCE OF THE TRIBUNAL 1. The Tribunal is competent to hear the present complaint pursuant to Article II of the Statute of the Administrative Tribunal of the Organization of American States. 2. The complainants: Martha Bellis, Soledad Salas, Ruth Connolly and Nancy Irigoyen, are members of the staff under the General Secretariat of the Organization of American States, while Miriam Oliver and Adelaide Farrah have been so, for which reason they have a legitimate right to subject themselves to the competence of this Administrative Tribunal by virtue of the terms of Article II, number (1) and number (2) (a) and (b) of its Statute. At no time have the parties expressed any of the reservations discussed in Article II(5), for which reason there is no dispute over this point regarding the power of the Tribunal to hear this matter. II. EXHAUSTION OF ADMINISTRATIVE PROCEDURES 1. After the positions had been reclassified by the General Secretariat and the request to review the classifications by the appropriate administrative procedures had been presented, the complainants were notified by memorandum from the Administration (issued on May 14, 1995), which sets forth the rejection of their petition for revision, a fact that was not called into dispute in this filing. 2. In circulars 61/95 (Exhibit 12 of the complaint), 82/95 (Exhibit 14 of the complaint) and 95/95 (Exhibit 17 of the complaint), the Administration communicated and reiterated that employees not satisfied with their classification who wished to appear before the Administrative Tribunal could do so directly because the General Secretariat would not grant either hearings or reconsiderations since it did not have the staff with the necessary training to conduct these proceedings. 3. Because of this, the assumption of Article VI(1) of the Statute of the Tribunal is met, and thus the administrative procedures are exhausted, and the complaints that have been filed shall be taken as accepted. III. THE GENERAL POSITION CLASSIFICATION SYSTEM OF THE OAS 1. Since career positions are held in different organs of the Organization, the members who hold them must necessarily exercise activities linked to the performance of the functions and instructions entrusted to those organs. As a result, the position classifications have to be periodically reviewed "in accordance with the resolutions of the General Assembly and the nature of the corresponding duties and responsibilities," as established in Article 34 of the General Standards. 2. It can be stated that to carry out any new functions and instructions that are entrusted, the revision of the position classifications makes it possible to implement more fully the functions and instructions that have been committed and, at the same time, determine the category of the career staff members from among those who may be assigned any function, task or instruction, bearing in mind their skills and the service requirements, as established in Article 18.ii.a) of the aforementioned legal instrument. 3. The General Secretariat decided, by means of executive order 87-1, dated August 25, 1987, to amend rules 102.1 to 103.7 of Chapter II of the Staff Regulations. Basically those regulations seek to have "all the positions of the General Secretariat at the appropriate grade and title" (rule 102.1 (a)). Every position must be classified in one of the grades that have been set in the OAS scale. The criteria to develop such a classification of jobs "are related to the nature of the work, the skills and specialty required, the supervision and orientation that is exercised, the complexity of the work, the contacts and their purpose, the scope and effect of the work and its physical demands" (rule 102.1 (b)). In applying those criteria to individual cases, the rule establishes the principle that the nature of the functions takes precedence over the skills of the staff member by saying, "the classification of jobs relates to the positions and not to their holders" (rule 102.1 (c)). While this is stating the obvious, it is making the necessary clarification that the job classification "depends on the nature of the functions and the responsibilities that are assigned to it." It is for this reason that when job descriptions are reviewed, frequently it is seen that the actual functions and activities exceed "the nature of the functions and activities that are assigned" to each position. Regular revision helps to adjust both the new functions and activities that the law has assigned to the organizational unit that has the positions and to restrict the area of action of those activities as performed by the holders of the career positions as a function of their own skills, capacities or subjective conditions. 4. The rules of the Organization require, "the grade of each position must be consistent with its functions and level of responsibility" (rule 102.3 (a)) and as a result, it is necessary that the entire organizational structure keep in mind a single job description for each position held. As a result, there is a regulated procedure to adjust job revisions so that the descriptions of the positions reflect "adequately the functions and responsibilities assigned." The adequate operation of the Organization also requires that the immediate supervisors of each position have "the responsibility for seeing to it that the job description reflects adequately the functions and responsibilities assigned to his subalterns" (rule 102.3 (b) quoted). 5. The position classification system assumes a regulated procedure that culminates in the identification of the functions and responsibilities that are assigned to each position. This procedure starts with the requirement of the department and office directors to provide their staff members "with a description of the job they hold" which is to reflect "adequately the functions and responsibilities assigned to his subalterns" (rule 102.3 (b)). 6. Revision of the job classification system currently in effect in the Organization in accordance with Rule 102.3 (f) of the Staff Regulations consists of the following:
7. The regulated task of revising the classification of each position in the Organization becomes even more complicated when it is done in accordance with the standards in effect for this area that the United Nations applies to its own organization. The legal source that leads to this use is General Assembly Resolution 1319, which ordered (number 1 (a)), "the General Secretariat is to adopt and implement the classification standards and methods used by the United Nations in effect since July 1, 1995" (fojas 30 and following). 8. The complexity of that task required that a company of outside auditors be hired to conduct the job classification process in accordance with the rules handed down by the General Assembly. The reclassification was started with a wide audit of all the positions in the General Secretariat, under the responsibility of the PAS company (fojas 146 and following). The delimitation of its work was defined in the Terms of Reference document (fojas 147 to 151) and, in particular, its letter e) (foja 149). 9. The job classification system proposed by PAS was adopted by the OAS. This included the 6 cases that are involved in these complaints. The General Secretariat itself recognized that surely some of the appeals of the job revisions would be made directly to the Tribunal (folio 120). It made the staff aware of this through the staff circular released by the Office of the Director of Human Resources. 10. In addition, to not delay the processing of those who wished to avail themselves of the Administrative Tribunal, that circular announced (folio 120) that officers would not be appointed for hearings or reconsiderations, thereby clearing the way to the Tribunal. The announcement was reiterated in circular 95/95 (folio 128) which explained that those who disagreed with their job classifications could choose between two courses of action. The person's first choice was an appeal, in accordance with Rule 102.4 of the Staff Regulations, consisting of a new audit of the person's position, conducted by an outside expert in job classifications, keeping in mind that the expert's recommendations would be final and binding on both parties. The other choice was to file with the Administrative Tribunal, in the knowledge that "in previous stages, the Tribunal has appointed an outside auditor and accepted the recommendation of that auditor." 11. Finally, it needs to be kept in mind in the formal arguments filing the suit in the dispute that it is possible that the result of the job reclassification could be a lower rank of the persons holding the job. 12. Full application of the United Nations system does not give the power to reduce the classification of positions already held but it does take effect once the positions become vacant. If a position receives an interpretation that makes such a demand, the classification reduction ordered by the General Secretariat would have no application to the present holder of the position and for as long as he holds it. The Tribunal believes that this interpretation is merely argumentative and is not supported by accepted legal reasoning or by any examination of the actual situation of the negotiations prior to the issue of the rules that pertain to this point. The file reveals that the OAS Staff Association's interest was to go along with the job reclassification process provided that the old job classification would remain in effect for the person who held the position (folio 115). This expectation did not prove true. To the contrary, the decision of the General Assembly in AG/RES. 1319, which set up the reclassification process in accordance with the systems and procedures used the United Nations, specifically recognized the possibility of reducing the category of a position and making it effective to the present job holder, provided that certain conditions were maintained. 13. In effect, the operative part of Resolution 1319 of the General Assembly reads:
(a) Staff Members Whose Grade is Unchanged:
(b) Staff Members Placed in a Lower Grade:
14. A full reading of the legal text transcribed above reveals that the General Assembly demanded the General Secretariat to categorize positions in accordance with UN methods and procedures. However, if that new system resulted in the hypothesis at hand, that is, cases in which staff members that formerly held other positions as a result of the general post audit were reclassified into lower grades, then the General Secretariat had to place such staff members and such lower grades. It is very clear that in this case the OAS is applying a specific decision on reduction of classification, provided that it does not affect the level of remuneration of the holders of jobs that have been reduced in classification. This policy decision to preserve the rights of positions already held, a rule in effect in the United Nations, was expressly ruled out by the OAS General Assembly in this singular case in which the classifications of all the positions in the Organization of American States were to be revised. The decision to implement in an organization (the OAS) the job classification rules and standards of another organization (the United Nations) had to be done, in principle, as a system or a systematic unit which has its own internal logic. This logic leads to the interpretation that a United Nations reclassification may not affect the contractual status, salary or other benefits of the holders of the positions. Nevertheless, when there are special rules handed down by the same legislative source (the OAS General Assembly) to the effect that some aspect of this whole (post adjustment to lower grades) has a different solution than that of the applied system, by calling for immediate application of such a case for the re-categorized staff member, it should be applied this way in the OAS. There can be no other explanation. In addition, the attorney for the complainants did not bring up this line of argument again during the informal hearings before the Tribunal with the representatives of the parties. It is enough to repeat the content of the final paragraph, "b) Staff Members Placed in a Lower Grade," of paragraph a.ii, General Assembly Resolution 1319:
15. Accordingly, if as a result of the audit conducted within the OAS, any of the six complainants was reduced in grade in connection with the job position they held at that time, in conformity with the present decision of the General Assembly, the staff member was to assume the new grade of the reclassified position. This legal rule applies to that general audit in view of the provisions of Resolution 631 of the Permanent Council. This is not a legal standard that is incorporated into the General Standards; it applies only to the case in question. This means that the issue of reduced classification that would decide the legal rule in question does not amend Staff Rule 105.4 for the future but needs only to be considered as a special case of reduction in grade by application of a special rule that applied to the case of the audit called for by CP/RES. 631 (989/94). IV. RECLASSIFICATION IN THE CASES IN QUESTION 1. Bearing all these factors in mind, the Tribunal concludes that, in cases such as this where the subject matter demands very precise and technical examination of the work performed and of the United Nations classification system, it must look to the opinion of professional auditors who have unique experience and knowledge in the area in question and in the process studied. Bearing in mind that the Tribunal is ultimately responsible for taking the appropriate decisions in these aspects, it is the opinion of the Tribunal that the expert opinion prepared by Buck Consultants, Inc., (hereinafter called Buck) should be given preferential importance. 2. In the particular cases of Martha Bellis and Soledad Salas, where the post classifications developed by PAS and Buck are the same, the Tribunal does not consider that there is adequate argument to change the concepts developed by PAS and confirmed by Buck. Consequently, this leads the Tribunal to the conclusion that the positions disputed by the two complainants may not be changed to the classification that they would prefer. 3. There are four other cases in which differences arose between the scores and the classifications assigned by PAS and Buck. These involved Miriam Oliver, Ruth Connolly, Nancy Irigoyen and Adelaide Farrah. With respect to each one of these four cases, the Tribunal is convinced that the concepts developed by the auditor appointed by the Tribunal were the best, based on carefully made comparisons between the job descriptions approved by the Administration and the parameters of the job descriptions established under the United Nations classification system.
4. With respect to the cases of complainants Ruth Connolly and Adelaide Farrah, as a result of the meeting called by the Tribunal with the two parties on November 10, 1997, the preliminary report from Buck Consultants dated November 3, 1997 and the additional information requested from that same company by the Tribunal, which was provided on November 6, 1997, inconsistencies might have arisen between the job classifications determined by Buck and the classifications given to other staff members. In particular, it has been pointed out and accepted by Buck that the higher classifications that Buck developed do not take into account how the scores of these two complainants, compare with other staff members at the same level of functions and responsibilities, might have been affected. The Administration pointed out, for example, that the score for the work complexity factor awarded by Buck in the case of complainant Connolly was higher than that of her supervisor, and the same as that of the classifications awarded to directors of higher ranking departments in the Organization. In addition, the Administration observed the existence of a diversity of additional aspects in which the Buck score for the two complainants would have exceeded the scores of other staff members with similar functions and with the descriptions contained in the United Nations Glossary, which is used in addition to the Common Occupational Group Classification Manual. The Administration concluded in its view that these alleged inconsistencies have such importance in the cases of Connolly and Farrah as to affect adversely the credibility of other evaluations within the OAS and to cast doubt on the precision of many other reclassifications that have been made. Since the terms of reference that were given to Buck required only a paper audit, and did not require a more comprehensive examination as to whether the resulting scores might be related to general post classification models by comparisons of posts, the Tribunal considers it necessary, in the cases of complainants Connolly and Farrah, that Buck have an additional amount of time to review the expert opinion already prepared with respect to more general factors that were not part of the initial evaluation that they conducted, including the reference to comparative factors with other positions and the more detailed description of responsibilities contained in the United Nations Glossary. The final decision of the Tribunal in these two cases shall be left pending the findings of that additional examination for which the Tribunal has given a deadline of December 31, 1997, to the Buck company. In any event, the results of the Buck examination shall be considered as the Tribunal's decision in these complaints of Connolly and Farrah. 5. The complainants have presented arguments to show that the procedures followed in the performance of the audits were defective in several ways. The most important are:
Despite all of this, the Tribunal has kept in mind several circumstances that helped to cause some of the defective actions as well as the fact that the Administration made repeated efforts with the intention of correcting such problems as they appeared, especially calling for a second review audit for those staff members who were not satisfied with the initial results. Since the Tribunal has tried to settle the complaints that have arisen through methods such as conciliation and the use of re-audit procedures, and more especially, bearing in mind the positive results that those attempts have produced, it is not necessary to reach a judgment on the allegations presented in consideration of the flaws in the procedures. It is enough to say that due care for these procedural guarantees, and the need to keep the staff members affected by the reclassification fully and carefully informed of the process, are essential for the purpose of ensuring the transparency and effectiveness of the system and to maintain staff support for the operation of the Organization. Furthermore, in the complainants' cases, ordering correction of the procedural errors made by the General Secretariat, as allowed by Article VII of the Tribunal’s Statute, is out of order in that it was not expressly requested and would only delay extensively the explanation of whether or not the post classification that is the subject in these proceedings is or is not in accordance with law. Since this judgment decides the fundamental question raised by the complainants, the Tribunal does not have to exercise in this instance the power that is given to it by the Statute. Furthermore, it understands that no indemnity is in order either since any eventual losses are not being grounded on a delay in the procedures --which was not questioned-- but on an omission of reporting the changes and their reasons, as is now being brought up before this Tribunal. In view of all the considerations made above, it is appropriate that the expenses, costs and fees be paid by each of the parties. By virtue of the foregoing, and on the basis of Article VII of the Statute, the Tribunal unanimously,
1. To declare that the complainants Martha Bellis and Soledad Salas are not entitled to have the positions they occupied at the time of their complaints, levels G-6 and G-5, respectively, reclassified to the levels claimed, levels P-3 and P-2, respectively. 2. To declare that the complainant Miriam Oliver is entitled to have the position that is the subject of her complaint reclassified from level G-4 to level G-5. 3. To declare that complainant Nancy Irigoyen is to have the position that she occupied at the time she filed her complaint reclassified from level P-2 to level P-3. 4. To declare that the decision of the Tribunal regarding complainants Ruth M. Connolly and Adelaide Farrah shall be the opinion arrived at by the auditors, Buck Consultants Inc., at the request of this Tribunal, to examine and make a judgment on the classification of the positions that the complainants held with respect to both higher and lower positions related to them. To this end, the Secretariat of the Tribunal shall obtain a job classification assessment from Buck Consultants Inc. In the event that Buck does not provide its opinion before December 31, 1997, it shall be understood that the decision of the Tribunal is to reclassify the positions to the levels the complainants request, in both cases, to the P-5 level.
Let notification be given. Washington, D.C., November 12, 1997
Carlos Balsa D'Agosto, Esq. / President Alejandro Tinoco, Esq. / Vice-President Morton Sklar, Esq. / Judge Noemi Cohen, Esq. / Secretary
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