Judgment No. 144

Complaint No. 279
Gladys Berly vs. Secretary General of the Organization of American States

THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES,

Composed of Dr. Nicholas J.O. Liverpool, President; Dr. Morton Sklar, Judge; and Dr. Agustín Gordillo, Judge,

Has before it for judgment the proceedings on the complaint filed by Mrs. Gladys Berly against the Secretary General of the Organization of American States (OAS).

The complainant represented herself, and Dr. Rubén A. Farje represented the Secretary General, in accordance with Article 42 of the Rules of Procedure of the Administrative Tribunal.

WHEREAS:

The complainant filed a complaint with the Administrative Tribunal, as authorized in Article VII(4) of the Statute and Article 21 of the Rules of Procedure, requesting that a job classification expert audit her post; that she be given a copy of the audit report; that a hearing be held at which the complainant and the General Secretariat are present to hear the auditor's report and have the opportunity to ask questions; and that the audit results be confirmed as final and binding on both parties, provided there are no errors by the auditor.

On September 13, 2002 the Secretary General’s representative appeared and voiced his agreement with the complainant’s request. 

On September 16, 2002, the Secretariat informed the parties that the President of the Tribunal, in response to the request made, had provided for the selection of a job classification expert to perform the requested audit and for the holding of a hearing for the expert to present his findings orally.

On October 11, 2002, the Secretariat received the auditor’s report; the parties were notified of this on that same day.

On October 22, 2002, a hearing was held that was attended by the parties and the auditor, as stipulated by the President.

FINDS:

1. Bearing in mind that the parties have submitted their dispute regarding the classification of the complainant’s post and requested that an independent expert be appointed, it should be noted, in accordance with the applicable regulations, that upon receipt of the report the Tribunal has few options after analyzing the expert’s opinion. It can only determine if the expert has acted under the parameters indicated in Article 21 of the Rules of Procedure, i.e. determine if there is any clear and convincing evidence of corruption or misconduct or other fundamental error.

2. Based on the analysis performed by this Tribunal, taking into account the observations made by the complainant on the report presented by the job classification expert at the October 22, 2002 hearing, the Tribunal finds that the parameters were fulfilled even though there were some errors that, since the Tribunal does not consider them to be fundamental errors, do not provide sufficient grounds to invalidate the report, its findings, or its recommendation. In this case, in the absence of clear and convincing evidence of corruption or misconduct or other fundamental error, this Tribunal does not have sufficient grounds to reject the expert’s opinion.

3. Without detriment to the foregoing conclusion, this Tribunal is troubled by one error that must be taken into account for future audits: we are referring to the fact that the expert was not able to perform a comparative analysis between the complainant’s post and other similar posts held by other persons within the OAS or in other international organizations with which such an analysis could be conducted. We acknowledge that it would be disproportionate in each case to perform a detailed audit of each similar post at the OAS or other organizations, given the costs of a process of that scope. Nonetheless, we believe that it is within the purview of the expert to perform a comparative analysis of basic parameters, such as the type of work performed, the obligations undertaken by the holder of the post, and the corresponding salary level. There could even be a list of certain functions and elements to which the holder of the post is subject, compared to similar posts. In this regard, the Tribunal indicates that in the future it will ensure that there is at least a minimum comparative effort to further clarify the opinion of the expert both for the complainant and for those ruling on the case. During the hearing held to present, analyze, and discuss the report, the auditor indicated that he too noted the significance and seriousness of this problem.

4. Although we recognize that it was not possible to compare the classifications of staff members performing functions or holding posts comparable to the complainant’s, we do not believe, in this case, that this omission constitutes a sufficient “fundamental error” in keeping with the thrust of Article 21 of the Rules of Procedure to request that the auditor’s recommendations be rejected.

5. Nonetheless, we urge the General Secretariat and the auditors involved in job classification functions to use this tool in the future, even if it is a simple comparison, so that job classification decisions are not made without the benefit of this comparative information on what is happening within the Organization.

6. The judgment being handed down in this complaint is a complex act because, in addition to the auditor’s contribution, it must be confirmed by this Tribunal. The procedural activities of the auditor are autonomous, but are incomplete in that they are not enforceable until they have been confirmed, and for this very reason they have been conducted alongside the activities of this Tribunal and under the supervision of this organ.

Accordingly,

THE TRIBUNAL

RESOLVES:

Having covered all the necessary formalities, to confirm the findings of the audit, which recommended a level of P-2 for the complainant’s post, as final and binding on the parties.

Let notice be given.

Washington, D.C., October 29, 2002