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Judgment No. 12
Complaint No. 20 Alberto Vesprémy Bangha v. Secretary General and Retirement and Pension Committee of the General Secretariat of the Organization of American States
THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES, Composed of Mozart Víctor Russomano, President; Juan Bautista Climent Beltrán, Vice President; and Alejandro Tinoco, Judge, Has before it for judgment the proceedings on the complaint filed by Alberto Vesprémy Bangha against the Secretary General and the Retirement and Pension Committee of the General Secretariat of the Organization of American States. The Complainant acted on his own behalf and was also represented by Juan F. Bauta y Delgado, attorney; the Retirement and Pension Committee, hereinafter called "the Committee," was represented by José Ignacio Tremols y Jiménez, attorney and legal adviser to the Committee, and the Secretary General was represented by Robert M. Carswell, Jr., attorney and senior legal officer of the Department of Legal Affairs of the General Secretariat. WHEREAS: I. On October 17, 1974, Alberto Vesprémy Bangha filed a complaint, as authorized by the Statute of the Tribunal, against the Secretary General and the Committee. After complying with the requirements as to his personal and official status, the Complainant went on to explain the events that had given rise to the complaint, and in this regard stated: That from October 1961 to April 1962 he worked for the General Secretariat on contract, and from April 1962 to July 1974 as a permanent staff member. Starting July 1, 1964, he held the post of senior economist (grade P-4) in the Department of General Development Affairs and Studies. That he is filing his complaint against the Secretary General and the Committee because of violation of Section VI.2 of the Retirement and Pension Plan; of Staff Rule 109.3(b); of the decision or resolution adopted by the Committee on August 20, 1952; and of Announcement No. 10 of the Committee's "Policies and Procedures," of July 10, 1956. The violations attributed to the Secretary General were committed when he recommended to the Committee that it retire the Complainant, refusing to allow him to continue his service in the General Secretariat after July 1, 1974. The violations he attributes to the Committee were committed when it adopted its decision of June 28, 1974, by which it decided "to retire Alberto Vesprémy Bangha and that this retirement take effect on July 1, 1974." That by memorandum of December 28, 1972, the Director of the Office of Personnel informed him that the Secretary General would recommend to the Committee that the Complainant be retired on January 1, 1974. By memorandum of May 4, 1973, the Complainant wrote to the Committee to request that his service in the General Secretariat be extended at least one more year after the end of 1973. By memorandum of August 24, 1973, the Complainant wrote to the Secretary General to request that he authorize an extension of his service. That by memorandum of September 10, 1973, the Director of Personnel answered the Complainant's memorandum of May 4, 1973, and informed him that the matter had been amply considered by the Secretary General, that he did not consider an extension of the Complainant's service to be warranted, and that he was sending his recommendation to that effect to the Committee. That by memorandum of October 25, 1973, the Executive Secretary for Economic and Social Affairs wrote to ask the Assistant Secretary for Management for his help in getting the Secretary General to make an exception to compulsory retirement in the case of the Complainant. That the Assistant Secretary for Management sent a memorandum to the Chairman of the Committee on November 12, 1973, informing him that the Secretary General had agreed that Mr. Vesprémy's service should be extended for another six months, until July 1, 1974. At its meeting on November 14, 1973, the Committee accepted the Secretary General's request. That subsequently, on two occasions, the Executive Secretary for Economic and Social Affairs wrote to the Secretary General to put to him a number of reasons in favor of continuing the Complainant in the service of the General Secretariat. On June 27, 1974, the Assistant Secretary for Management sent the Secretary-Treasurer of the Committee a memorandum informing him that the Secretary General had issued instructions to him that postponing Mr. Vesprémy's retirement beyond June 30 would not be beneficial to the General Secretariat. On June 28, 1974, the Committee decided "to retire Alberto Vesprémy Bangha and that this retirement take effect on July 1, 1974." By communication dated July 16, 1974, delivered to Mr. Vesprémy on July 23, the Director of the Office of Personnel notified him of the Committee's decision. This complaint has been filed within the 90-day period following the date of this notification. That on September 5, 1974, the Complainant wrote to ask the Committee "to reconsider its decision taken on June 28. . . ." That on October 1, 1974, he received Notification of Personnel Action No. 50778, which purports to cancel the increase in salary granted to him as of July 1, 1974, and also the application of the new salary and post adjustment scales that went into effect on the same date. By this Notification of Personnel Action he was also informed that the salary level that would be used in setting his benefit for the retirement that the Secretariat was trying to force upon him as of July 11, 1974, would be less than he was entitled to. That even though he is 65 years of age, he is entitled to continue working in the General Secretariat until he has completed 15 years of creditable service in the Retirement and Pension Plan. This right is recognized in Section VI.2 of the Plan and Staff Rule 109.3(b) that were in force until December 31, 1974. That, according to Section VI.2 of the Plan, the Complainant's right to continue working in the General Secretariat could disappear or cease to exist by virtue of a "specific action of the Committee." This "specific action" to retire employees who reach 65 years of age without a minimum of 15 years of service is subject to the condition that the employees be unfit to continue working. The existence of this condition is clear from the purpose of Section VI.2, the attitude that the Committee has taken toward it since it was adopted and put into effect in 1932, and formal statements on the matter made both by the Administrative Tribunal and by the Committee itself. That, consequently, the compulsory retirement of a staff member of the General Secretariat merely because he is 65 years of age is improper. To serve as a basis for mandatory retirement, this circumstance must be accompanied by a certain length of service or lack of fitness to continue working. The Complainant's fitness to continue working is more than amply demonstrated by the documents that appear as appendices 3, 9, 12, 14, and 31 of this complaint. That the illegal retirement of which he has been made victim by the Committee's decision of June 28, 1974, adopted at the instigation of the Secretary General, cannot be considered the equivalent of a termination under Article 51 of the General Standards to Govern the Operations of the General Secretariat. That in consideration of the history of the provisions he regards as having been violated and of the misapplication of these provisions on the part of both the Committee and the Secretary General, he prays the Tribunal: (1) to revoke or to nullify, as though it had never existed, the decision of the Committee of June 28, 1974, ordering his retirement as of July 1, 1974; (2) to consider that, for all legal purposes, the Complainant has at no time ceased to be a member of the permanent staff of the General Secretariat, within which he is entitled to a post as senior economist, grade P-4, step 10, since July 1, 1974; (3) to instruct the Secretary General to reinstate the Complainant and pay him the salary and other remuneration pertinent to this position for the period between July 31, 1974, and the date of his reinstatement; (4) to order the Secretary General to make the contributions to the Retirement and Pension Fund for that period; (5) to order the Committee to credit the active period during which he is physically separated from the General Secretariat as time of service for the purpose of the Plan; (6) in the event provided for in the second transitory provision of the Statute of the Tribunal, to set the amount of the indemnity at what the Complainant would receive from the General Secretariat for all purposes if he continued to work there without interruption until he completed 15 years of creditable service in the Retirement and Pension Plan; (7) in the event that his preceding petitions are not granted, to rule that the notification of the decision to retire him was made on July 23, 1974, and that the new salary scale applicable to grade P-4, step 10, effective since July 1, 1974, must be used as the basis for setting the amount of the benefits to which he is entitled under the Retirement and Pension Plan and for liquidating his account because of the termination of his service in the General Secretariat. II. On November 21, 1974, the representative of the Committee wrote to the Tribunal to request an extension of the deadline for answering the complaint. On the same day, the Tribunal decided to deny this request because it did not concern an exceptional case. The representatives of both the Complainant and the Respondents were informed of this decision on November 22, 1974. III. On November 25, the Secretariat of the Tribunal received a communication from the representative of the Complainant in which, for reasons given, he suggested to the principal members of the Tribunal that they disqualify themselves from participating in the present case. IV. On November 25, the Committee answered the complaint and stated: That the Complainant's argument that the decision of the Committee to retire him is invalid because Section VI.2 of the Retirement and Pension Plan gives him the right to continue working until he has completed 15 years of participation in the Plan is totally unfounded. In Judgment No. 2, Barrett v. Secretary General and Committee, the Tribunal ruled that the compulsory retirement of employees who have reached 65 years of age without completing 15 years of service is permissible. Mr. Vesprémy's argument is also completely invalidated by judgments Nos. 10 and 11 of the Tribunal, G. Hugo Vivó and Sixto Alfredo Aquino y Padrón, respectively, v. Secretary General and the Committee. That, with respect to the meanings of the term "specific action" of the Committee, provided for in Section VI.2 of the Plan, it should be stated that Mr. Vesprémy's case was given the same attention and treatment as those considered in judgments Nos. 10 and 11. That in Mr. Vesprémy's retirement, the "specific action" of the Committee is objectively justified, since the Committee based its decision not only on the opinion of the Secretary General, but also on "the facts made available to it by the interested parties" -- that is, those contained in the memorandum presented to the Committee by Mr. Vesprémy on June 18, 1974. That, consequently, the complaint should be dismissed in all its parts. V. On November 29, 1974, the Secretary General answered the complaint and stated: That an analysis of judgments Nos. 10 and 11, issued by the Administrative Tribunal in the cases of G. Hugo Vivó and Sixto Alfredo Aquino y Padrón, respectively, makes it evident that the complaint against the Secretary General must be dismissed, since he is not a party to decisions on the retirement of staff members. That it is true that the Secretary General recommends extension of service to the Committee for some staff members who reach the compulsory retirement age. It is also true that the Secretary General may initiate steps to retire staff members who have reached 65 years of age without 15 years of participation in the Retirement Fund. However, in accordance with judgments Nos. 10 and 11, such actions do not affect the Complainant's interest. That it is the Committee's responsibility to see to it that the provisions on retirement actions are complied with, since only the Committee can decide whether to retire a staff member or to extend his tenure. In taking its decision, the Committee must keep several factors in mind, one of which is the recommendation made by the Secretary General. After putting forth some conclusions resulting from his own arguments, the representative of the Secretary General prays that the complaint be dismissed in all its parts, without compensation of any kind to the Complainant. VI. On December 16, 1974, the representative of the Complainant replied to the Respondents' answers, and in this regard stated: That the answers of both the Committee and the Secretary General rely exclusively on judgments Nos. 10 and 11, issued by the Tribunal in the complaints filed by G. Hugo Vivó and Sixto Alfredo Aquino y Padrón, respectively. Despite a marked similarity between the cases of Messrs. Vivó and Aquino, on the one hand, and that of the Complainant, on the other, there are also fundamental differences between them. Consequently, the decision adopted by the Tribunal in the present complaint should differ from that adopted in the complaints of Messrs. Vivó and Aquino. The representative of the Complainant then went on to describe what he considered were the principal differences between the cases of Messrs. Vivó and Aquino, on the one hand, and that of his client, on the other. That he wishes to point out to the Tribunal that it does not appear from judgments Nos. 10 and 11 that it is proper to compel the retirement of employees who have reached 65 years of age without completing 15 years of service. That Staff Rule 109.4(a) that was in force up to December 31, 1974, in no way permits, authorizes, or justifies the Secretary General's request for the compulsory retirement of an employee for the reason that he has reached 65 years of age, even if he has not completed 15 years of service, as is maintained in the first paragraph of the third considerandum of Judgment No. 10. That even granting that Staff Rules 109.4(a) and 109.3(b) authorize the Secretary General to request the compulsory retirement of employees 65 years of age who have not completed 15 years of service, they would be inapplicable (1) because they are part of a general body of rules, the Staff Rules, and cannot annul the rules of a specific legal body, such as the Retirement and Pension Plan; and (2) because the Staff Rules, promulgated by the Secretary General in the exercise of his regulatory powers, lack sufficient force to annul provisions of the Retirement and Pension Plan. That he wishes to establish with the utmost clarity that the problem that the Complainant is bringing to the Tribunal is not related to any request for extension of service but, on the contrary, refers to Mr. Vesprémy's acquired right to remain in the employ of the General Secretariat until he has completed 15 years of participation in the Retirement and Pension Plan. Only in the unlikely event that the Tribunal decided that the Complainant does not have that acquired right, or that the possibility of continuing to work in the General Secretariat until he completes 15 years of service is not a legitimate expectation in his case, would he ask the Tribunal to state what rights he is entitled to by reason of the Committee's not having extended his service as requested in his memorandum of June 18, 1974. That the rulings of the Tribunal in judgments Nos. 10 and 11 regarding an acquired right to remain in service until the completion of 15 years do not have the general applicability that the representative of the Committee seeks to attribute to them. Rather, the rulings are applicable only in the case of Mr. Vivó and in the case of Mr. Aquino, but not in the case of Mr. Vesprémy. That he prays that this stage be considered completed and that steps be taken toward rendering a judgment in the manner requested in the initial complaint. VII. On January 9, 1975, the representative of the Committee, in accordance with Article 13.5 of the Rules of Procedure of the Tribunal, presented his response to the Complainant's reply, and in this regard stated: That the Complainant's interpretation of judgments Nos. 10 and 11 is unfounded. The Complainant is using a number of false premises to argue that he enjoys an acquired right. With reference to the rights deriving from Section VI.1 and 2 of the Plan, the case of Mr. Vesprémy does not differ from those decided in judgments Nos. 10 and 11. The Tribunal's interpretation of this section of the Plan in those two judgments is indeed generally applicable, since it is an abstract interpretation of the scope and content of the regulation. That, as he has previously argued, it is in fact possible to retire a staff member who has reached 65 years of age even if he has not had 15 years of participation in the Retirement and Pension Plan. He again prays the Tribunal to rule as requested by the Committee in the specific petitions appearing in its answer of November 25, 1974. That in the event that the Tribunal considers that the specific action of the Committee was not sufficiently justified in this case, it bear in mind, in setting the indemnity to be paid, that the Committee has already given Mr. Vesprémy one six-month extension and that therefore, to be strictly fair, he should be granted an indemnity equivalent to only six months of basic salary in lieu of the extension. VIII. On January 10, 1975, the representative of the Secretary General presented his response to the Complainant's reply, and in this regard stated: That the Complainant has no acquired right to remain employed for 15 years. The Tribunal has clearly established this in judgments Nos. 2, 10, and 11. In any case, the Secretary General has acted in accordance with all pertinent and applicable regulations. Moreover, in judgments Nos. 10 and 11 the Tribunal stated unequivocally that the Secretary General has no part in decisions on the retirement of staff members and that this decision is within the sole jurisdiction of the Retirement and Pension Committee. In this case the same is true of the decision on the extension. Therefore, the Tribunal must dismiss the complaint against the Secretary General, because his actions have not affected the Complainant's legal interests in this case. That in Judgment No. 10 the Tribunal established for the first time the requirement of an "objectively justified recommendation" against an extension in the procedure for compulsory retirement. In accordance with that judgment, it is the Committee itself that, in the last analysis, must justify its decision. The Committee should ask the Secretary General for objective justification of his recommendation where he has not provided any. A failure to do so does not give the Complainant a right against the Secretary General, and for this reason the Tribunal should dismiss the present complaint. That, far from failing to fulfill any of his responsibilities in this case, the Secretary General acted in complete good faith and in the belief that he was complying with all the requirements according to a correct interpretation of them. He was unaware of the need for an objectively justified recommendation, as called for by judgments Nos. 10 and 11, and to the best of his knowledge the Committee acted in good faith, also unaware that, over and above the objective consideration it obviously gave this case at the time it decided to retire the Complainant, there had to be justification of the Secretary General's objective recommendation or of its own decision. The Secretary General did recommend and the Committee did authorize an extension of the Complainant's service for six months. That the General Secretariat is responsible for executing the program-budget, and consequently for the payment of indemnities, but this fact does not require that the Secretary General be a party to these proceedings. However, the Secretary General may act in any stage of the proceedings, in accordance with Article 22 of the Rules of the Tribunal. The Secretary General does not wish to intervene in the present complaint. Moreover, there are no grounds in the present case for a complaint against the Secretary General, and for this reason he prays the Tribunal to dismiss the complaint against the Secretary General as unfounded. That the Secretary General informs the Tribunal that at no time was consideration given to terminating the Complainant's appointment under any provision of the General Standards or the Staff Rules. The emphasis on the singular importance that the Complainant attributed to the Retirement and Pension Plan in considering whether to accept the position is unfounded and self-serving. The difference alleged by the Complainant between his case and the Vivó and Aquino cases with respect to the number of years needed to complete the illusory 15 years' service is irrelevant. No right to 15 years' service exist. The situation is the same for a staff member needing three years as for one needing five years, or nine years, or more. That as for the allegations made by the Complainant concerning his supervisors' interest in extending his service, the Tribunal's attention is invited to the following considerations:
That, for the reasons set forth both in this response and in the Secretary General's answer in this case, he prays the Tribunal to dismiss the complaint against the Secretary General, without indemnity of any kind to the Complainant, and also, pursuant to Article 17.4 of the Rules of Procedure, to set a date and time for oral proceedings. IX. On March 5, 1975, in accordance with Article 14.2 of the Rules of Procedure of the Tribunal, this case was placed on the list of matters pending consideration. Once the President had set the opening date for the session to be held in the second quarter of this year, the pertinent steps were taken and the Tribunal was composed of Mozart Víctor Russomano, President; Juan Bautista Climent Beltrán, Vice President; and Alejandro Tinoco, Judge. It met as scheduled, deliberated on the case sub judice, and decided that, in accordance with Article 17 of the Rules of Procedure, it would take the testimony offered and hold the oral proceedings that had been requested on June 3, 1975, at 4:00 p.m. By Resolution No. 17 of June 3, 1975, the Tribunal denied the request of the President of the Staff Association that the Association be given the right to be heard in this case. The testimony of Juan A. Nimo was taken and oral proceedings were held on the day and at the time indicated, as the record shows. The Tribunal then decided that further evidence was not necessary, in accordance with Article 17.1 of the Rules of Procedure, subject to the possibility of later ordering any action it might consider useful for properly deciding the case, in accordance with Article 16. In accordance with Article 25, the Tribunal designated Juan Bautista Climent Beltrán to draft the judgment. Having examined the proceedings, the Tribunal now CONSIDERS: 1. That it is competent to hear the present complaint, pursuant to Article II of its Statute. 2. The Complainant's claim against the Secretary General for having recommended his retirement to the Committee and denied his request to remain in service is without merit. For one thing, this recommendation, by its very nature, does not constitute a decision in the retirement procedure, which according to Section VI.1 of the Plan, is within the jurisdiction of the Committee. For another, the power to extend an employee's service, under the legal regimen applicable to the retirement procedure, is specifically conferred upon the Committee in Section VI.1 of the Retirement and Pension Plan, which states that "the Committee is authorized to extend the service of an employee . . ." in the terms and under the condition specified in that rule. It must therefore be held that any administrative action taken by the General Secretariat in connection with the retirement procedure does not constitute an administrative decision by the General Secretariat on the retirement itself. That decision is up to the Committee, as established in sections I and VI.1 and 2 and other provisions of the Plan, and also in Rule 109.3 of the Staff Rules that were in force at the time; therefore, this administrative action did not affect the legal interests of the Complainant. As a result of the foregoing, there must be a unity in the retirement procedure, as in the present case, consisting in observance of the applicable regulations in the Retirement and Pension Plan and Staff Rules leading to the decision the Committee must take. Therefore, independent of the functions and responsibilities incumbent on the General Secretariat in observing the procedures on retirement in the Staff Rules, it is also the responsibility of the Committee to ensure that both the Staff Rules and the rules of the Retirement and Pension Plan have been complied with in the retirement process, since, we repeat, it is up to the Committee to take the decision. With respect to the procedure followed with the Complainant, it must be considered legitimate for the Secretary General to have recommended to the Committee that it proceed with the compulsory retirement of an employee who has reached 65 years of age, even if he has not completed 15 years of service, since Rule 109.4(a) of the Staff Rules then in force says that "a termination . . . is a separation initiated by the Secretary General, other than retirement," which implicitly acknowledges his right to initiate an action on retirement and differentiates it from initiating a termination. Moreover, Rule 109.3(h) of those Staff Rules, which concerns procedures for postponed retirement, requires the Director of Personnel to notify a staff member one year before the date of his compulsory retirement. Such notice was given in the present case, which in logic presumes an initiative to promote retirement action by the Committee. It must be understood, of course, that the initiative to promote retirement action by the Committee is subject to compliance with the applicable standards and regulations. Consequently, the Complainant's claims against the Secretary General must be regarded as inadmissible. 3. With regard to the complaint against the Committee, the Complainant's assertion that the retirement decision violates what he calls his acquired right to remain employed in the General Secretariat until he has completed 15 years of creditable service in the Retirement and Pension Plan, even though he has already reached 65 years of age, must be considered insubstantial. In his view, this right is established by Section VI.2 of the Retirement and Pension Plan and by Announcement No. 10 of the "Policies and Procedures" of the Committee. The Complainant's arguments to this effect, based on the views of the Committee and on the fact that for almost 40 years it did not take specific retirement action, are unpersuasive. So long as Section VI.2 of the Plan empowers the Committee to take specific action to retire employees who have reached 65 years of age without completing 15 years of service, it cannot be legally accepted that anyone has an acquired right to remain employed until he completes 15 years of service, because that continuance is obviously subject to the appropriate exercise of the specific action. It is therefore within the Tribunal's jurisdiction to interpret that rule in any particular case in dispute. So much so that the Complainant himself wrote to the Committee on May 4, 1973, to request an extension of his service "for at least one more year after the end of 1973," and in his memorandum of June 18, 1974, he asked the Committee for another extension "for at least one year beginning next July 1 (or, if that period does not seem advisable, for at least seven months)." This means that he was implicitly basing his request on Section VI.1, from which he derives an expectation of the right to an extension "for periods not exceeding a year at a time." This is quite different from an acquired right to uninterrupted service for 15 years, which would not require a request for extension in the terms mentioned. 4. The Complainant asserts that the conditions of his appointment were affected because, before accepting the offer of employment in principle, he asked a high official of the Organization to give him the Retirement and Pension Plan, and was informed that he had the prerogative of remaining until he had completed 15 years of service. He says that he took this into consideration in accepting the position, and he also cites the position taken by the Administrative Tribunal of the International Labor Organization, in its Judgment No. 61 of September 4, 1962, which appears as Appendix 33 of the complaint. This argument must be regarded as unpersuasive since what is concerned here is not individual stipulations in the Complainant's letter of appointment, but information he says he obtained before accepting the post and also his own interpretation of the rules of the Plan--the interpretation of which, in specific cases, falls squarely within the jurisdiction of the Tribunal. Furthermore, the testimony of Juan A. Nimo, former Director of Personnel of the General Secretariat, at the hearing on June 3 of this year, that he may have informed the Complainant about the scope of the Retirement and Pension Plan before the latter accepted the post, and the memorandum of June 2, 1965, that this witness attributed to the then Secretary General, José A. Mora, cannot change the view already expressed by the Tribunal: as long as Section VI.2 of the Plan remains in effect in the terms mentioned, the possibility that the Committee might later take specific retirement action could not be foreclosed, since it is the body responsible for applying the Plan, even though, we repeat, it is within the jurisdiction of the Tribunal to interpret that regulation in the specific case in which a decision on retirement is being challenged. 5. Now, then, it must be considered that in the retirement decision that is being challenged, the Committee has violated the applicable rules, which in Section VI.1 and 2 of the Retirement and Pension Plan read as follows:
It may be seen from this that the general rule is that compulsory retirement upon reaching 65 years of age must not be applied until the staff member concerned has completed 15 years of service, unless he so requests in writing or the Committee takes specific action to that end, as was held in Judgment No. 7 (Victory). The problem lies in determining what is to be understood as "specific action of the Committee" and what is the extent of the rights that may derive from a request for extension of service and the proper procedure for dealing with it. With respect to the first aspect of the question, the Tribunal considers, in line with its position in judgments Nos. 10 and 11, that independent of the historical origin of Section VI.2 of the Retirement and Pension Plan, which was added to Section VI.1, it has jurisdiction to interpret, integrate, and update the rule. For this purposes, its criterion is that, unlike generic action, specific action must be understood as action that is defined and objectively justified, to distinguish it as an exception to the general rule. On this point, account should be taken of Staff Rule 109.3(e) that was in force at the time:
The Tribunal considers that in its report of June 27, 1974, the General Secretariat confined itself to a subjective evaluation to the effect that the extension requested by the Complainant would not be beneficial to the General Secretariat, instead of providing objectively justified information to support its assertion that the extension was not beneficial. The failure to do so means that there are no grounds for believing the report. Consequently, since the Committee used it as a basis for its retirement decision, it must be concluded that that decision is improper. Furthermore, it is appropriate to cite the relevant portion of the thesis upheld in the Victory case, Judgment No. 7:
In this connection, the precept in the "Policies and Procedures of the Retirement and Pension Plan" that was accepted in the Barrett case, Judgment No. 2, may also be cited:
6. As to the scope of the rights deriving from the request for extension, the Tribunal cites the relevant part of its finding in the Victory case, Judgment No. 7:
Hence it is considered that the present case concerns not an acquired right to remain employed until he has completed 15 years, as the Complainant asserts, but an expectation of rights consisting in an opportunity to request and obtain an extension in the event that the Committee takes specific retirement action in the terms indicated in Consideration 5. Thus, in this case, the legally protected interest is the possibility that his service may be extended for the one-year period that the Committee is empowered to grant in accordance with Section VI.1 of the Retirement and Pension Plan. 7. The representative of the Committee states that the "specific retirement action" is objectively justified since, in his view, the Committee based its decision not only on the opinion of the Secretary General, but also on "the facts made available to it by the interested parties." This reasoning is inadmissible since, as recorded in the minutes of meeting No. 210 of the Committee, held on June 28, 1974, the retirement decision was based only on the fact that "by memorandum dated June 27, 1974, the Secretary General stated to the Committee that the extension requested by that staff member would not be beneficial to the General Secretariat . . . ," with no verification of the Complainant's lack of fitness to remain in service. Moreover, in his memorandum of June 18, 1974, to the Director of Personnel, the Executive Secretary for Economic and Social Affairs expressed the view that it would be desirable for Mr. Vesprémy to remain in the General Secretariat. This constitutes further proof for the Tribunal that the retirement decision that is being challenged was improper. 8. The representative of the Committee cites judgments Nos. 10 and 11 of the Tribunal to claim that the Committee is empowered to extend service for a period of one year only. In seeking to restrict the scope of Section VI.1 of the Plan, this reasoning is inadmissible. The jurisdictional function is to apply the rule individually to each specific case, and this rule, which was also quoted in those judgments, reads as follows:
The rule clearly provides that "the Committee is authorized to extend the service of an employee for periods not exceeding a year at a time. . . ." Consequently, it must be understood in logic and in law that each period is equivalent to one extension and that the possibilities for extension are not exhausted within a period of one year, because if they were it would be inconsistent with the Committee's power to authorize extensions of service for up to a year at a time. Therefore, each time an employee affected by a retirement action requests an extension, the Committee is authorized to grant it for a period not to exceed one year. Thus, if an employee obtains an extension for less than one year, his rights have not been injured, in the first place because the Committee has acted within its powers and in the second because he remains in service and can request, before the extension period ends, another extension for a period not to exceed one year, which the Committee is authorized to grant. Moreover, it is evident that if an employee requests an extension of his service and the Committee grants it for one year, he can request another extension, and the Committee would likewise be authorized to grant it for a period of up to one year. It would be incongruous if the Committee, after granting a six-month extension in reply to the first request, could only grant another six-month extension upon receipt of the second request. This would unduly restrict the scope of the rule, as it pertains both to the employee and to the powers of the Committee. 9. Therefore, the opinion of the Tribunal is that the Complainant is owed an indemnity in this case, consisting of the equivalent of 12 months of basic salary, in lieu of the one-year extension. For this purpose, it considers that the basic salary should be determined on the basis of the salary that the Complainant was earning on the date that he ended his service with the General Secretariat, that is, on July 18, 1974, since he actually worked until that date, when the acting Director of the Department of General Development Affairs and Studies told him orally to stop working the next day. The Complainant so stated in his complaint of October 4, 1974, to the Director of Personnel, and this statement has not been disputed by the General Secretariat. By virtue of the foregoing, the Tribunal unanimously RESOLVES: 1. That the complaint filed by Alberto Vesprémy Bangha against the Retirement and Pension Committee is in order only with respect to his right to an extension of his service for one year, taking into account the reasons set forth in the preceding consideranda. 2. That, consequently, pursuant to Article VII.3 of the Statute of the Tribunal, the Organization of American States, through the General Secretariat, must pay the Complainant an indemnity set at the equivalent of 12 months of basic salary, using for this purpose the salary that the Complainant was earning as of July 18, 1974, independent of any benefits owed to him as a consequence of his retirement and of any salary payments he may have received during the month of July 1974. This indemnity is to substitute for the extension referred to in operative paragraph 1. 3. That the sum of US$800 is set as the amount to be paid to the Complainant by the Organization of American States, through the Secretary General, for attorney's fees. 4. That the indemnity mentioned in operative paragraph 2 is set as relief for all injury in the case and therefore all other claims by the Complainant are denied. 5. That the complaint against the Secretary General is dismissed in all its parts.
Let notification be given. Washington, D.C., June 6, 1975
Mozart Víctor Russomano, Esq. / President Juan Bautista Climent Beltrán, Esq. / Vice President Alejandro Tinoco, Esq. / Judge Domingo E. Acevedo, Esq. / Secretary OEA/Ser.R TRIBAD/40 6 June 1975 Original: Spanish |
