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Judgment No. 19
Complaint No. 28 Edgardo Holzman v. Secretary General of the Organization of American States
THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES, Composed of Juan Bautista Climent Beltrán, President; Alejandro Tinoco, Vice President; and Carlos A. Pigretti, Judge, Has before it for judgment the proceedings on the complaint filed by Edgardo Holzman against the Secretary General of the Organization of American States. The Complainant acted on his own behalf and the Secretary General was represented by Robert Carswell, Jr., attorney and senior legal officer of the Department of Legal Affairs, all in conformity with Article 22 of the Rules of Procedure of the Tribunal. WHEREAS: I. On August 21, 1975, Edgardo Holzman filed a complaint against the Secretary General, as authorized by the Statute of the Tribunal. After complying with the requirement as to his personal and official status, Mr. Holzman went on to explain the facts that had given rise to the complaint, and in this regard stated: That he is filing this complaint against the Secretary General of the Organization to pray that he be granted a permanent post in the international career service at grade P-3 retroactive to October 4, 1972, the date on which he joined the Organization. That in September 1972 he competed for a vacant P-3 permanent post as English translator in the Translation Division of the then Department of Publications and Documents of the General Secretariat. After placing first in the competition, he was given a temporary contract for a period of 10 months as a Spanish translator (P-2). At the time of the filing of this complaint he still has the same title, the same P-2 grade, and the same temporary status, the only difference being that, after that initial ten-month contract, the length of the subsequent contracts has been gradually decreasing. That the crux of the matter is that from the outset he always performed the same duties and had the same responsibility as the other translators in the Division. The nature of his duties and the level of his responsibilities were always identical to those of his colleagues in the Division who are classified as grade P-3. From the outset he protested against the discrimination he describes, requesting classification at the P-3 level and at least fixed-term contracts. He never received any reply to his oral claims or written complaints. On January 31, 1974, he sent a memorandum to this effect to the Chief of the Division, Maryjo Carlson, and, through her, to the Director of Personnel, Sheridan Besosa. He never received any reply. That on January 29, 1975, to forestall the statute of limitations provided for in Staff Rule 103.11, he sent another memorandum to Mr. Besosa repeating his claim. The Director of Personnel did not even deign to reply to it. That on July 3, 1975, he wrote to the then Secretary General of the Organization, Galo Plaza, insisting on the matter and giving detailed explanations of his complaint and specific requests. Again he received no reply. In the face of this silence, at the end of the time period prescribed in Staff Rule 112.2 he wrote to the new Secretary General of the Organization, Alejandro Orfila, requesting the convocation of the Reconsideration Committee. That from July 1 onwards he was given successive one-month contracts, and, except for the most recent one, he did not receive any Personnel Action documents. Since August 1, 1975 he has been serving as a translator in two languages, Spanish and English, for the sessions of the Permanent Council and other governing bodies that meet in the headquarters building of the General Secretariat. These duties, according to the Complainant, are normally assigned to the most senior reviewer in each language, since the end product is sent unreviewed for publication and distribution. That, without prejudice to the principle of iura novit curia, he wishes to draw attention to the following provisions on which he bases his complaint: (a) articles 3(j), 43(a), and 115 of the Charter of the Organization of American States; (b) articles 16(a) and b, 31, and 32 of the General Standards to Govern the Operations of the General Secretariat; (c) Rules 102.1, 102.2(d), 102.3(a), 102.4(a), and 104.2(e) of the old Staff Rules that were in force from January 1, 1971 to December 31, 1974; (d) Rules 104.3(b)(iii) and (c) and 102.3 of the current Staff Rules in force since January 1, 1975; (e) Rules 2.1, 2.3, and 3.1 of the OAS Personnel Manual, Chapter I, Section 2; and (f) resolution AG/RES. 124 (III-O/73) of the General Assembly of the Organization of American States. That he prays the Tribunal: To accept him as having appeared as attorney on his own behalf and as a party and as having established legal domicile for the purpose of notification. To transmit this appeal to the Respondent within the prescribed time limit. To append the accompanying documentary evidence to the case file and order the production of the other evidence, and to set hearings for the receipt of testimony. To uphold this complaint and grant him the status of permanent staff member of the international career service, which is his due in accordance with the competition for the P-3 post of English translator that he won in 1972, retroactive to October 4 of that year; or, alternatively, to award him the grade P-3 that all the translators have, retroactive to October 4, 1972, or to January 31, 1973 (i.e., retroactive one year from the date of his memorandum in which he requested reclassification in accordance with Staff Rule 103.11), in any of these cases with the pertinent step increases and with the accessory benefits deriving from whatever type of appointment the Tribunal finds appropriate (permanent, fixed-term, or temporary), including, as may be applicable, the contributions to the Retirement and Pension Fund, the Provident Fund, family allowance, education allowance, etc. Consequently, to pay him all the sums owed him, with interest, less the small amounts paid by the Administration since the date on which the discriminatory situation he is challenging began. To award him an indemnity of US$30,000 as relief for the unjustifiable discrimination to which he has been subjected during the last three years. To pay him the appropriate attorney's fees for acting as his own attorney in this appeal. II. On September 29, 1975, the Secretary General answered the complaint and stated: That the Complainant has not exhausted the procedures provided for in the regulations of the General Secretariat, and the Secretary General has not yet taken a final decision. Therefore, the Complainant has not complied with the requirements of Article VI.1 of the Statute of the Tribunal. That there has been no agreement to submit the case directly to the Tribunal, as stipulated in Article VI.1(b) of the Statute. That the situation envisaged in Article VI.3 does not exist for the following reasons: That on July 21, 1975, Mr. Holzman requested a hearing before the Joint Advisory Committee on Reconsideration on the specific subject of his complaint. That on September 3, 1975, the Committee met and stated that the delay in starting its work had been due to the problem of finding a third member to serve as the Chairman. It met again on September 8, 1975, and for a third time on September 10, 1975. As a result of this last meeting the Committee formally requested the Secretary General to extend Mr. Holzman's contract beyond October 1, 1975, the date on which the Committee was to submit its report. The request was complied with, and Mr. Holzman received an extension of contract until at least October 31, 1975. That in view of these facts (internal procedures applied at the request of the Complainant and lack of a final decision by the Secretary General, since the Reconsideration Committee has not completed its hearings on the case), he is of the opinion that the Tribunal should reject the complaint and order the case remanded to the Secretary General, as is provided for in Article VII.2 of the Statute, without indemnity to the Complainant. That since the parties in complaint Nos. 28 and 29 are identical, he requests that, in the interest of efficiency and of justice, the Tribunal join the two complaints so that the witnesses and oral proceedings on both cases may be heard at the same time. That the Secretary General admits that Mr. Holzman was given a temporary contract on October 4, 1972, at grade P-2, step 1, as a (trainee) Spanish translator. He received a number of short-term extensions of his temporary appointment. His duties were of the same general nature and on the same basis as those of translators with permanent appointments. That the Secretary General denies that there has been any discrimination against the Complainant, since other translators in the Division of Language Services have been treated the same way. That, should the Tribunal decide that the Complainant was discriminated against, the Secretary General wishes to draw attention to the fact that a staff member must undergo a period of service during which he must demonstrate his ability in the particular post he holds, and this probationary period must extend over a reasonable period of time. This period must be deducted from any period during which the Tribunal decides that there was discrimination. That the Secretary General rejects all other allegations that are not specifically admitted in this answer. That he respectfully prays the Tribunal: To remand the case to the Secretary General, in accordance with Article VII.4 of the Statute of the Tribunal, since the Complainant has not complied with Article VI.1(a) of the Statute, without indemnity of any kind to the Complainant. Alternatively, to dismiss the complaint without indemnity of any kind to the Complainant. Alternatively, to order testimony and oral proceedings in due course, in accordance with Article 17 of the Rules of Procedure. III. On October 3, 1975, the Complainant, in accordance with Article 13.3 of the Rules of Procedure of the Tribunal, presented his reply to the Secretary General's answer, and in this regard stated: That he has indeed exhausted the preliminary procedure prescribed in the Staff Rules. His request for reconsideration was submitted on July 21, 1975. More than 70 days elapsed between the date on which he made his request, and the date on which he filed his complaint, and he has received no official notice that steps have been taken to comply with it. The statement by the representative of the Secretary General is the first official indication that a Reconsideration Committee has been formed to deal with his claim. That the petition of the representative of the Secretary General that the case be remanded to the administration to complete the prior procedure, which lapsed through its own fault, is manifestly improper and unjustified, and he requests the Tribunal to so rule. Otherwise he maintains his petition for the indemnity provided for in Article VII.2 of the Statute of the Tribunal. That the joining of the complaints requested by the representative of the Secretary General is inappropriate because the grounds and the purposes are not identical. His complaints Nos. 28 and 29 to the Tribunal deal with completely different facts that have nothing to do with one another, and the grounds and petitions in each case are also dissimilar. Therefore, a joining of the complaints would enormously hamper the elucidation and resolution of both. That the representative of the Secretary General acknowledges that the Complainant's duties and responsibilities as a translator were at all times identical to those of his colleagues in the Division, which coincides with the evidence on record. That, as his complaint shows, there were three levels of discrimination: (a) permanent status versus contract status; (b) fixed-term contract versus temporary contract; (c) grade P-3 versus grade P-2. The other contract translators in the Division were P-3 translators from the start, and later received extensions of their fixed-term contracts. That the only level of discrimination common to the Complainant and the other contract translators is that they all performed regular, ordinary, permanent duties on the same footing as their other colleagues in the Division. Therefore, they should have received permanent appointments from the outset, but in his case the discrimination on the other two levels was more obvious. That, furthermore, noncompliance with the regulations with respect to the other aggrieved parties cannot be seriously invoked as justification for discrimination. If that were so, it would mean that two wrongs, in this case three wrongs, make a right. Whether the other translators accepted or rejected the injustices to which they were subjected does not affect his claim. The Complainant has only complained about his own situation, and his complaints and petitions clearly show that he expressed disagreement over a period of three years. That the representative of the Secretary General is mistaken in introducing the question of the "probationary period." Two different concepts are here confused. The "training" or "apprenticeship" that was applied to him de jure but not de facto has nothing to do with the probationary period envisaged in Rule 104.2 of the Staff Rules that were in force at the time of the events and in Rule 104.3 of the new Staff Rules. The "training" or "apprenticeship" that does exist in other institutions is of a special kind and involves a period of instruction for the person during which his responsibilities and duties are considerably less than those of other regular staff members. This is clearly reflected in the division of the apprentice's duties: he devotes part of his time to actually doing the work for which he is being trained and the rest is used for teaching him. In the case of translations, in organizations where this system exists, a considerable amount of time is set aside for the person to receive formal instruction from his supervisors, to correct his mistakes, etc. This is not the case in the Language Services Division of the General Secretariat, where such a system does not and did not exist. As the representative of the Secretary General admits, the duties and responsibilities assigned to the Complainant from the outset were always identical to those of his colleagues. That the "probationary period" is a period established in the Staff Rules of the General Secretariat for the purpose of ascertaining the competence of a person who has already been appointed with the correct classification. Since there is no training system to enable the General Secretariat to evaluate a staff member's competence and aptitude before he is placed in the appropriate grade, it is necessary to retain the right to terminate him if he shows himself manifestly unfit for the work. For this reason Staff Rule 104.3(b) says that during the probationary period the staff member will enjoy all the benefits granted to permanent (or, as in his case, fixed-term) staff members. That what is absurd is to attempt to mix these two systems (that is to say, to have "in training" a staff member who at the same time is "on probation" for that training). If there is to be "training," there must be a system with the characteristics described, something that has never existed in the Language Services Division, since the duties and responsibilities of all translators were always identical. For this reason, if a permanent or fixed-term appointment is appropriate, to begin with, it should entail all the usual benefits including correct classification, since the "probationary" period does not affect the classification or the benefits and was satisfactorily completed. That at the risk of being redundant, it must be necessarily concluded that a person who from the outset was considered capable of performing duties identical to those of the other staff members of the Division, and who did in fact perform them to the full satisfaction of the administration, should receive for that work the same remuneration and benefits as the others. This is even more justified when that person won a competition as a permanent P-3 English translator and received instead a 10-month contract as a P-2 trainee Spanish translator, for which language he was never tested. That in view of the foregoing he reiterates to the Tribunal the petitions in the complaint brief and also the following: That it reject the Respondent's petition that the proceedings be remanded to the Secretary General, declare the preliminary administrative proceedings exhausted, and hear the case during the present session; that, alternatively, it award the indemnity provided for in Article VII.2 of the Statute of the Tribunal. That it reject, for the reasons already given, the petition of the representative of the Secretary General that the complaints be joined. That it request the Personnel Office to provide authenticated and complete sets of the contracts awarded to João Francisco Bezerra and Carlos Roberto García from the date of their entry into the Organization. That it sustain this complaint in all its parts. IV. On October 21, 1975, the attorney for the Secretary General presented his response to the Complainant's reply and in this regard stated: That the Secretary General insists that the Complainant has not exhausted the procedures mentioned in Article VI.1(a) of the Statute of the Tribunal. That the Secretary General repeats his requests that complaints Nos. 28 and 29 be joined for the reasons mentioned in his answers to both of them. There are no specific rules or regulations of this Tribunal concerning the joining of complaints, and that the Tribunal may therefore act at its discretion. Although the Secretary General agrees with the Complainant that some of the elements normally required for the joining of complaints are lacking, he must point out that legal doctrine on the joining of complaints permits it not only when the causes of the actions are identical but also when the parties to two or more proceedings are identical, as in this case. The Tribunal recognized this doctrine in its Resolution No. 3 of October 23, 1973, in complaints Nos. 7, 8, 9, 10, and 11. In those circumstances, the practical advantages of joining complaints can also justify granting the petition for joinder. That with respect to the Complainant's assertion that in September 1972 he won a competition for a vacant P-3 English translator post, he states:
That, therefore, his assertion is incorrect and misleading, since its purpose is to induce the Tribunal to believe that he actually competed for a vacant P-3 post, was selected in that competition, and was offered a trainee post at a lower level. The facts are obviously different. That the Secretary General points out that the General Standards and the Staff Rules give a certain measure of discretion to the Secretary General in determining whether a specific post will be filled as a permanent, short-term, or fixed-term appointment, and in determining the level of the post. The appropriate use of this discretionary power does not violate any legal right. The exercise of this discretionary power in this case was appropriate and therefore should not give rise to any complaint by the Complainant. It must also be observed that the award of a temporary or fixed-term appointment does not entail the right to renewal or conversion into another type of appointment. That for these reasons he prays the Tribunal: To dismiss the complaint because the Complainant has not complied with Article VI.1(a) of the Statute of the Tribunal, and to remand the case to the Secretary General, as provided for in Article VII.2 of the Statute, without indemnity of any kind to the Complainant. To dismiss the complaint without indemnity of any kind to the Complainant, or To order in due course the testimony of the proposed witnesses and the conduct of oral proceedings, in accordance with Article 18 of the Rules of Procedure. V. During its eighth session, in November 1975, the Tribunal decided to consider the Respondent's request that, as a previous question, it order the case remanded to the Secretary General on the ground that the Complainant has not exhausted the procedures provided for in the Statute. In accordance with Article 8.2 of the Rules of Procedure of the Tribunal, Carlos A. Pigretti disqualified himself from hearing the case. After considering the self-disqualification in accordance with the pertinent rules, the Tribunal rejected it. After examining the statements of the parties with respect to the previous question, the Tribunal decided, by Resolution No. 25 of November 5, 1975, not to accede to the request for remand because in its opinion the Complainant had exhausted the preliminary procedures referred to in Article VI.1(a) and 3 of the Statute. By Resolution No. 26, also issued on November 5, 1975, the Tribunal held that for reasons of procedural economy the request for the joining of complaints made by the representative of the Secretary General was in order. It therefore decided to join complaints Nos. 28 and 29 filed by Edgardo Holzman. On the same date, the Tribunal considered a pleading submitted by the Complainant in which he requested the Tribunal to order the Secretary General to rescind a decision not to extend his employment contract until the Tribunal had had an opportunity to hear Complaint No. 28. The Tribunal rejected the request as lacking legal grounds. VI. On March 3, 1976, the present case, in accordance with Article 14.2 of the Rules of Procedure of the Tribunal, was placed on the list of cases pending consideration. Once the President had set the opening date for the session for the second quarter of the current year, the pertinent steps were taken and the Tribunal was composed of Juan Bautista Climent Beltrán, President; Alejandro Tinoco, Vice President; and Carlos A. Pigretti, Judge. It met as scheduled, deliberated on the case sub judice, and decided that, in accordance with Article 17 of the Rules of Procedure, the testimony offered would be taken and the oral proceedings requested by the Respondent would be held on May 19, 1976, at 4:00 p.m. The testimony was taken and the 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 and, in accordance with Article 27 of the Rules of Procedure, designated one of its members to draft the judgment. Having examined the proceedings, the Tribunal now CONSIDERS: I. COMPETENCE OF THE TRIBUNAL That it is competent to hear this complaint, pursuant to Article II of its Statute. II. NATURE OF THE CONTRACT 1. The Complainant received a 10-month contract as a temporary P-2 Spanish translator. At the end of this period, the terms of employment in the initial contract were reaffirmed in successive temporary appointments that gradually became shorter until they ended in month-to-month contracts. 2. On January 31, 1974, the Complainant stated in writing, and for the first time, his disagreement with the situation. It was on July 3, 1975, that the Complainant wrote to the Secretary General of the OAS to initiate the procedure established in the Staff Rules for the Secretary General to review his final decision on the contract. 3. An analysis of the rules governing the situation shows the following: Appointments in the Organization of American States are of the following kinds: permanent, temporary, or fixed-term. Permanent appointments are for an indefinite period. Fixed-term appointments are for services that have a specified duration and can be from one to five years in length. Temporary appointments are for carrying out special programs or projects for less than one year (Rule 104.2 of the Staff Rules in force at the time of the contract concerned). The so-called "probationary period" of six months, which may be extended at will by the Secretary General, is provided for permanent and fixed-term contracts. Consequently, if a person is recruited as a temporary employee, the status recognized by the representative of the Secretary General in his brief, he cannot be subject to a probationary period, which is solely for permanent and fixed-term contracts. The Tribunal is convinced that the Organization of American States clearly intends interpretation and translation services to be a permanent function of the General Secretariat; consequently, they should be provided by persons belonging to the international career service. However, even the regular activities of the Organization may, exceptionally and when strictly necessary, be carried out temporarily by persons who receive a short-term appointment, which will in no case exceed one year, as can be seen from Article 16 of the General Standards to Govern the Operations of the General Secretariat, Rule 104.3(c) of the current Staff Rules, and resolution AG/RES. 124 (III-O/73) approved by the General Assembly on April 14, 1973. In consequence of all this, the Tribunal holds that the mere fact of signing successive contracts for limited periods of time does not exempt the Organization from the obligation to comply with these regulations and that added up over time these contracts come to constitute, for the purposes of those regulations, a single permanent contract. 4. This Tribunal holds that the first contract was a temporary contract and that it fell into that special situation that the Secretary General may deal with as an exception by means of a temporary contract not exceeding one year, since Staff Rule 104.2(e) in force at the time of the contract concerned stipulates that temporary contracts will be used for carrying out specific programs or projects or for filling a vacancy on a temporary basis for less than one year. Consequently, the situation created by the contract should have ended in September 1973. However, subsequent to that date the Complainant continued to accept contracts that were not permanent, to perform the duties of the post as set out in the contracts, and to receive the emoluments corresponding to those contracts. It was only in July 1975 that he initiated the procedure established by the Staff Rules for obtaining reconsideration of a final decision by the Secretary General. 5. In accordance with what this Tribunal has accepted as indisputable legal doctrine, the post held by the Complainant is a permanent post and should be filled by an appointment that is also permanent, but in order to enforce his rights the employee must necessarily initiate the procedure provided for in the regulations for the reconsideration of the Secretary General's decisions. 6. Consequently, the Tribunal holds that the Complainant is entitled, as from July 3, 1975, to have his contract considered a permanent contract and to have his employment benefits adjusted to this new status for the period between July 3, 1975, according to the standard explained above, and November 30, 1975, the date on which he ceased to be employed by the Organization. III. SUSPENSION OF SERVICE The Tribunal holds that, despite the foregoing conclusion in favor of the Complainant during the period delimited, it is not equitable, on the basis of Article VII.1 of the Statute, that any consequences of the contractual relationship should be applicable to the period between November 30, 1975, and the present decision, since during that period no contract existed and therefore the Complainant provided no contractual services of any kind. IV. REINSTATEMENT Since this Tribunal has held that the Complainant was entitled to a permanent contract, and since the contractual relationship was terminated because it was decided that the contracts in force had been temporary, the Complainant must be reinstated in service with the status mentioned. The General Secretariat must establish this situation without delay unless it makes use of its option under Article VII.2 of the Statute of the Tribunal, according to which the Secretary General may decide against reinstatement subject to the payment of an indemnity, the amount of which is fixed in the operative part of this judgment. V. OTHER PETITIONS The Complainant's petition for an indemnity of US$30,000 is denied since the Tribunal holds that his rights have been sufficiently restored under the terms of this judgment. With respect to the attorney's fees requested by the Complainant, this Tribunal holds that the award of attorney's fees is inappropriate when attorneys act on their own behalf. By virtue of the foregoing, and pursuant to Article VII.1 and 2 of the Statute, the Tribunal unanimously RESOLVES: 1. To rule that the contract between the Complainant and the General Secretariat was a permanent contract between July 3, 1975, and November 30, 1975, and that consequently he must be paid the difference between what he received during that period and what he should be paid as a consequence of this judgment, bearing in mind the fact that his P-3 status should take effect from the month of August 1975. 2. To rule that no amount should be paid for the period from November 30, 1975, to the date of execution of this judgment. 3. To rule that the General Secretariat must reinstate the Complainant as permanent staff member at grade P-3, which was the one the Complainant had when the employment relationship was suspended, and in accordance with the terms of this judgment. 4. To set at US$16,000 the amount that the General Secretariat must pay to the Complainant as indemnity if it makes use of its option under Article VI.2 of the Statute of the Tribunal. 5. To deny the Complainant's petition for the payment of indemnity and interest. 6. To deny the Complainant's petition for the payment of attorney's fees for acting as his own attorney.
Let notification be given. Washington, D.C., May 28, 1976
Juan Bautista Climent Beltrán, Esq. / President Alejandro Tinoco, Esq. / Vice President Carlos A. Pigretti, Esq. / Judge Domingo E. Acevedo, Esq. / Secretary OEA/Ser.R TRIBAD/64 28 May 1992 Original: Spanish |
