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Judgment No. 2
Complaint No. 2 Mayo Edwin Barrett v. Secretary General and Chairman of the 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 Carlos Giambruno, Judge, Has before it for judgment the proceedings on the complaint filed by Mayo Edwin Barrett against the Secretary General and the Chairman of 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 Clyde V. Hampton, Jr., attorney. The Secretary General was represented by Robert M. Carswell, Jr., attorney and senior legal officer of the Department of Legal Affairs. Both the Retirement and Pension Committee, hereinafter called "the Committee," and its Chairman were represented by Paul A. Colborn, attorney and legal adviser to the Committee. All this was in conformity with Article 20 of the Rules of Procedure of the Administrative Tribunal of the Organization of American States. WHEREAS: On July 6, 1972, Mayo Edwin Barrett filed a complaint, as authorized by the Statute of the Administrative Tribunal, against the Secretary General of the Organization and the Chairman of the Committee. The Complainant states that he was first employed by the Organization of American States on February 19, 1962, under an annual contract, and that on January 1, 1966, he received a permanent appointment. He says further that when the decision he is challenging was taken he was a special assistant to the Treasurer and Director of the Office of Financial Services. He also states that when he became a permanent employee of the OAS he was 61 years of age and that he was admitted to the Retirement and Pension Plan. The Complainant goes on to say that on September 15, 1971, he was given oral notice of his proposed forced retirement "due to age," which was followed by a written notice from the Director of Personnel dated September 30, 1971. The effective retirement date set in the notice was November 16, 1971, 45 days after the date of notification. The Complainant calls this an involuntary retirement, since it was never requested, he did not desire to retire in November 1971, and he did not intend to retire at the later effective date of December 1, 1971. At the request of the Complainant dated November 8, 1971, the Grievance Committee met. However, since this was a decision already taken by the Secretary General, the Committee felt that the appropriate body to consider the request would be the Advisory Committee on Reconsideration. The Complainant appealed to the Reconsideration Committee, which felt that it should not accede to the Complainant's claim, according to a letter dated April 7, 1972. The letter also says that the Secretary General had accepted the recommendation of the Reconsideration Committee. The Complainant contends that the involuntary retirement forced upon him by action of the Secretary General is a measure that is not authorized under the rules and procedures regulating and limiting the authority of the Secretary General and that therefore the action and the resultant forced retirement are void. He adds that the fact that there are other employees of the Organization of American States who are past the age of 65 and have not been subjected to the arbitrary forced retirement imposed upon him clearly demonstrates the capricious and discriminatory nature of the Secretary General's action in this case. The Complainant adds that Article 49 of the General Standards of the Organization enumerates the specific conditions in which the Secretary General is empowered to remove permanent staff members, that this list is all-inclusive, and that there are no related powers that the Secretary General can cite as justification of his action in imposing involuntary retirement on the Complainant. He further points out that the action of the Committee in approving an involuntary retirement was contrary to the Retirement and Pension Plan (Section V.5) and to the "Policies and Procedures" of the Retirement and Pension Plan, adopted by the Committee in August 1960. Particularly, he adds, it is contrary to Section VI.2 of the Plan. The Complainant contends that the Committee lacks authority to retire him involuntarily since although he is 65 years of age, he has not completed 15 years of service. The Complainant states that the Secretary General violated Staff Rule 109.3(h) and thus deprived the Complainant of the right to apply for postponed retirement. The Complainant contends that he is entitled to termination indemnity under Staff Rule 109.5(i) and that the amount of the indemnity is set in Staff Rule 109.6. In his specific case it would amount to nine months of salary for having completed more than nine years of service. However, the Complainant says, when he was terminated he received only the equivalent of nine weeks. The Complainant rests his arguments on, among other things, the fact that the Grievance Committee made a recommendation with which the Advisory Committee on Reconsideration agreed in its findings dated March 24, 1972, to the effect that "it is also recommended that in the future the procedure indicated in Staff Rule 109.3(h) be faithfully followed; the same with articles 55 and 56 of the General Standards." The Complainant further asserts that his involuntary retirement due to age is highly selective and that this measure has not been applied equally to other staff members of the General Secretariat of the Organization who had reached or passed the age of 65 years by December 1, 1971. He says that the action taken against him is punitive and deceitful, and that it gives evidence of double standards practiced by the General Secretariat. The Complainant disputes the assertion in the report of the Grievance Committee that the 1960 "Policies and Procedures" are merely a compilation of decisions, not official policies and procedures of the Retirement and Pension Plan. He contends that they are indeed "Policies and Procedures" of the Retirement and Pension Plan accepted and relied upon by the Complainant and other staff members. The Complainant contends that he has been materially injured and damaged by being deprived of employment with the Organization of American States as a result of action by the Secretary General and by the Committee, and that the actions complained of are not authorized by the Staff Rules or other regulations cited by the Complainant. He asserts that his contract has been terminated under the guise of retirement. Consequently, he says, the action is null and void ab initio and should be set aside. He states that the imposition of involuntary retirement has deprived him of basic rights and privileges that include the right to request a postponed retirement in accordance with the "Policies and Procedures"; the right to receive 90 days' advance notice of termination; and the right to have his separation properly styled a termination instead of falsely labeled a "retirement." He contends that by labeling his termination a "retirement," the Complainant is deprived of the termination indemnity, which in his case amounts to nine months of his basic salary as provided in Staff Rule 109.5(i). The Complainant requests that he be given an opportunity to present testimony in an open hearing to substantiate the allegations contained in his brief; that the General Secretariat be ordered to make available to the Tribunal information that will substantiate and verify his allegation that the involuntary retirement imposed upon him was of a very selective nature, by providing a list of staff members who have reached the age of 65 with fewer than 15 years of service; that the persons employed by the Organization whom he may wish to call as witnesses in any hearing to be held before the Administrative Tribunal be made available; that the designation of his separation from the Organization be changed from "retirement due to age" to "involuntary termination"; that, in addition to an indemnity equivalent to nine months of salary, he be granted indemnities equivalent to one year's salary for having been deprived of the opportunity to apply for the postponed retirement provided for in Staff Rule 109.3(h) and to one additional year's salary for the injuries, difficulties, and expenses he has suffered. WHEREAS: On August 9, 1972, the Committee answered the complaint and stated: The Committee was not required to retire the Complainant but had the authority to do so, and did so, at the request of the Secretary General. The provision of the Retirement and Pension Plan cited by the Complainant, "Benefits to Persons Discontinuing Participation Prior to Retirement," is not applicable to him. The Committee is authorized to retire the Complainant either at his request or by its own action. In the first case, retirement is voluntary; in the second, compulsory, as in the present case. Having admitted the Complainant to the Retirement and Pension Plan when he was more than 60 years of age resulted in benefit to him. That with regard to the description of the Secretary General's decision as "highly selective," the Committee has nothing to do with this situation, because it is the prerogative of the Secretary General to make the decision to request the retirement of a staff member. The "Policies and Procedures" of the Plan are merely informal guidelines for reference by the Committee, were never formally approved, never purported to be binding regulations, were never officially issued to the staff, and are not binding; they are deficient and outdated, and are exclusively for internal use by the Committee. The reason the Committee postponed the Complainant's retirement for 15 days after it was to become effective was to make absolutely certain that he had a full 60 days' written notice. It is the Committee's position that the Secretary General could choose to request the Complainant's retirement, since he had reached the prescribed retirement age, or to terminate him. The Committee had no reason to ignore the Secretary General's request. The retirement was approved effective December 1, 1971, and this was not a precipitated action, because the Complainant was consulted more than a year before his actual retirement and he replied by saying that he had no plans to retire even though he was 65 years of age. The benefits provided for in Staff Rule 109.6 are intended to apply to employees who are prematurely separated for budgetary or other administrative reasons; they constitute a sort of unemployment compensation and an indemnity. There is no indemnity for being retired, nor should retired employees be considered unemployed. The Committee adds that "the Plan is not clear on the question of what portion of credits should be paid to an employee who is retired against his desire" and that therefore it opted for the more generous interpretation and settlement. The Committee stresses that the Complainant was informed sufficiently in advance of the intention to retire him and that the Committee merely acceded to the Secretary General's request and ordered the retirement on its own authority. The Committee concludes by praying that the Tribunal find this complaint without merit. WHEREAS: On August 9, 1972, the Secretary General answered the complaint as follows: He cites Article 54 of the Provisional General Standards of the General Secretariat to establish that a termination due to retirement does not entail indemnity to the staff member. This provision, in his opinion, adds one more element to those listed in Article 49 of the Standards. He points out that the Complainant's services were properly terminated pursuant to the provisions of the Retirement and Pension Plan and of other pertinent regulations in effect at that time, and that therefore the Complainant is not entitled to any separation or termination benefits. The Secretary General admits that the Complainant was improperly--because of his age--admitted as a participant in the Retirement and Pension Plan. But at the same time he argues that once he entered he must be considered subject to the administrative procedures governing the matter, since Staff Rule 109.3 contains the phrase "compulsory retirement age," which the Plan establishes as 65. The Secretary General then states that on November 23, 1970, the Complainant's supervisor was informed of the plan to retire him. The next day, November 24, 1970, the Complainant answered that he had not seriously considered a specific retirement date and that he had no definite plans to retire. The General Secretariat interpreted this answer as a request for postponed retirement and no action was requested of the Committee at that time. The Secretary General adds that on September 15, 1971, the Complainant was given oral notice of the proposed compulsory retirement and therefore from that date on had an opportunity to request postponement pursuant to Staff Rule 109.3(h). He states that the next day (September 16, 1971) a Personnel Authorization was issued to retire the Complainant for age effective November 16, 1971, when he would reach 66, and that on October 16, 1971, the Assistant Secretary for Management asked the Committee to retire the Complainant effective November 16, 1971. All the procedures pertaining to the Advisory Committee on Reconsideration were complied with, and that Committee concluded by stating that it "finds no grounds for the specific claims for indemnity presented by Mr. Barrett." The Secretary General says that the Committee's recommendations are directed towards the future, as preventive measures. Finally, the Secretary General states that it is the policy of the General Secretariat to recommend the compulsory retirement of staff members who have reached the age of 65, and that this internal administrative policy existed prior to the Secretary General's decision to recommend the compulsory retirement of the Complainant, who is the first staff member, of those known to be 65 years of age or over who are participants in the Retirement and Pension Plan, to be affected by the policy. In conclusion, the Secretary General prays that the Tribunal dismiss the complaint. WHEREAS: On September 5, 1972, the Complainant replied in separate briefs to the answers of the Committee and the Secretary General. He denies having contended that staff members with less than 15 years of service may not be retired against their wishes, provided they have reached the proper age. However, he contends that this retirement must be carried out in strict adherence to the OAS Retirement and Pension Plan (1959), the "Policies and Procedures" of the Plan (1960), the OAS Staff Rules, and all the pertinent regulations, and that when the appropriate procedures are not followed, the employee is entitled to a termination indemnity. The Committee was informed that applicable rules and procedures had been violated, breached, and ignored in the attempt to discharge the Complainant forcibly under the guise of an involuntary retirement, and the Committee had sufficient reason to deny the Secretary General's request. The Complainant states that he considered the memorandum dated November 23, 1970, to be in order under the regulations with respect to calendar year 1970, since it asked about his plans for retirement in 1970, and that for that reason he answered that he had no such plans. Consequently, he believes that the Secretary General failed to follow Staff Rule 109.3(h), which requires annual notification. In short, the Complainant alleges that the termination of his employment was an administrative termination, not a retirement due to age, and that the "Policies and Procedures" of the Retirement and Pension Plan (1960) is official and binding on the parties. The Complainant calls to the attention of the Tribunal the fact that he was the first staff member to whom involuntary retirement was applied, and moreover that in the 12 months since he was notified of the intention to retire him, not one other person has been involuntarily retired. According to him, this is further evidence of the discriminatory manner in which he was singled out as the only employee to be involuntarily retired. In concluding his reply, the Complainant prays that the Tribunal rule in favor of his claims and award a reasonable sum for costs and attorney's fees. WHEREAS: On September 20, 1972, the Committee and the Secretary General filed separate responses to the Complainant's reply. The Committee reaffirms that it is the Retirement and Pension Plan, not the Staff Rules, that the Committee interprets and applies, and that it has the authority to decide on compulsory retirement. It also insists that all pertinent requirements were complied with before the Complainant was retired, and that it is the Secretary General who is responsible for determining whether or not a staff member should continue in service and to present the request to the Committee, which would reject the Secretary General's recommendation only if the provisions of the Plan were not met or for some other extraordinary reason. The Secretary General points out that the Staff Rules in which Rule 109.3(h) appears entered into effect only on January 1, 1971, and that the rule previously in effect was Staff Rule No. 15 of the Pan American Union, effective from July 13, 1962, to January 1, 1971, which he quotes. He says that although they are similar in intent, there is the difference that the current Rule provides for notification to the staff member one year before he becomes eligible for retirement, but that both rules require that a postponement of retirement be requested by the staff member. The Complainant never made such a request although he had ample time to do so. The Secretary General again mentions the reports of the Grievance Committee and the Advisory Committee on Reconsideration, and the fact that in the 12 months since the Complainant was notified of his retirement, one other staff member has already been retired and the cases of other participants in the Retirement and Pension Plan who have reached the compulsory retirement age are under consideration. In concluding his response, the Secretary General mentions certain points in the Complainant's pleadings that he considers contradictory. Finally, he prays that the complaint be dismissed. WHEREAS: On September 27, 1972, pursuant to Article 14.2 of the Rules of Procedure of the Tribunal, the complaint was placed on the list of matters pending consideration by the Tribunal, to be heard during its session in the fourth quarter of this year, when the Tribunal would consist of its three principal members. WHEREAS: After the present session had opened, on October 26, 1972, the Complainant requested that the Tribunal, pursuant to Article 17 of the Rules of Procedure, hear the testimony of Mayo Edwin Barrett, Lawrence W. Acker, Oscar Lightner, and R. C. Santos. The Tribunal granted the request insofar as Messrs. Acker, Lightner, and Santos were concerned, and denied the request to call Mr. Barrett, as he is the Complainant. At the same time, it set a hearing for October 27 at 4:00 p.m. to hear the testimony offered on the terms accepted by the Tribunal. On the appointed date and time only the testimony of Lawrence W. Acker was taken, because the Tribunal accepted the Complainant's voluntary withdrawal, presented during the same hearing, of his request concerning the other proposed witnesses. At the request of the Tribunal, the parties unanimously expressed their desire for the oral proceedings referred to in Article 17.4, 5, and 6 of the Rules of Procedure, and the Tribunal scheduled them for Monday, October 30, at 4:00 p.m. They were held at the appointed time. After the oral arguments were concluded, the Tribunal decided that further evidence was not necessary, according to 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. Pursuant to Article 25, the Tribunal appointed Juan Bautista Climent Beltrán to draft the judgment. Having examined the proceedings, the Tribunal now CONSIDERS: 1. It is competent to hear the present complaint, pursuant to Article II of its Statute. 2. The points in dispute consist essentially in determining:
In this connection, the applicability of the Staff Rules (January 1971) and the "Policies and Procedures" of the Retirement and Pension Plan (1960) must be determined. 3. As to the first point, the Tribunal finds that compulsory retirement for employees who have reached 65 years of age, even if they have not yet completed 15 years of service, is permissible under Section VI.1 and 2 of the Retirement and Pension Plan, since paragraph 1 states that "employees will be retired at 65 years of age" and paragraph 2 provides in its pertinent part that the compulsory retirement will be effective by virtue of the previous paragraph either upon the written request of the employee or by specific action of the Committee. In addition, Staff Rule 109.3(h) mentions "the compulsory retirement age." Consequently, compulsory retirement because of age is provided for in the Retirement and Pension Plan; however, it should be understood that the applicable procedural rules and regulations must also be observed. 4. As to the second point, the Tribunal finds that the Secretary General was empowered to request the Committee to retire the Complainant even though he had not requested the retirement of other employees who had also reached 65 years of age and had fewer than 15 years of service, without this constituting a discriminatory measure. Section VI.2 of the Retirement and Pension Plan clearly establishes that compulsory retirement will not be operative for an employee in these circumstances except upon his written request or by specific action of the Committee, and it does not say that this specific action must necessarily be extended to all employees who are in the same situation. It is therefore allowable for them to continue working on the basis of the interest of the service. Moreover, it is beyond question that under articles 9 and 12 and other related parts of the Provisional General Standards of the General Secretariat, the Secretary General is empowered to determine the desirability of retaining certain employees in service. In addition, Staff Rule 109.4(a), in stating that "A termination within the meaning of these rules is a separation initiated by the Secretary General, other than retirement," implicitly accepts the Secretary General's initiative to retire an employee as an action distinct from termination 5. As to the third point, it must be noted that the procedures in the applicable rules and regulations have not been observed in processing the Complainant's retirement, for the following reasons: The provisions of Staff Rule 109.3(h) were not observed. This Rule reads as follows:
It is seen from this Rule that the Director of Personnel must inform the employee one year before the date on which he will be eligible for retirement, the word "eligible" being understood as meaning "retirable," that is, that the employee meets the requirements to retire voluntarily. If he has not taken voluntary retirement despite the initial notice, only a second notice must be given, "one year before he reaches the compulsory retirement age." Consequently, this second notice is the one that must be given in all cases of compulsory retirement one year before the date of retirement so that during this time the affected employee may apply for a postponement of his retirement in accordance with the Rule. This is related to Section VI.1 of the Retirement and Pension Plan, which reads:
Failure to comply with Staff Rule 109.3(h) is evident from the fact that the first communication the Complainant received about his retirement was dated November 23, 1970, when his immediate supervisor transmitted to him a memorandum from the Personnel Office asking him for information about his retirement plans, which cannot be considered an actual notice of retirement. However, in any case, since the notice of compulsory retirement was given to him orally on September 15, 1971, and in writing on September 30 of the same year, as appears in the Committee's and the Secretary General's answers to the complaint, it is undeniable that the one-year notice prescribed in Staff Rule 109.3(h) issued on January 1, 1971, was not given, because the "full 60 days' written notice" mentioned by the Committee is the advance notice for termination, provided for in Staff Rule 109.4(c), not for retirement. The reasoning of the Committee that it "is not bound by the Staff Rules," as stated in its answer, is not acceptable, because the Staff Rules have been issued by the Secretary General, acting under the powers granted to him in Article 119 of the Charter of the Organization of American States and in Article 12 and other pertinent articles of the Provisional General Standards of the General Secretariat, to guide administrative relations with the staff. In addition, Staff Rule 109.3(h) is not incompatible with the Retirement and Pension Plan; to the contrary, it is consistent with Section VI.1 of the Plan, and is related to the application of that section. Also unobserved was the provision in the "Policies and Procedures" of the Retirement and Pension Plan that:
With respect to the applicability of the Policies and Procedures," the Tribunal takes into account the statement of the Complainant's witness, Lawrence W. Acker, who held the post of Director of the Office of Financial Services and Treasurer of the Pan American Union (as the General Secretariat was then called) for several years, and who had been Secretary-Treasurer of the Committee, to the effect that the Committee regarded the "Policies and Procedures" as regulations and applied them as such. The Tribunal also takes into account the report of Tulo H. Montenegro, the representative of the Secretary General on the Committee, that:
Even though the regulatory nature of that document cannot be precisely determined, it should be taken into consideration for the specific case under examination, since the rule cited by the Complainant constitutes an acceptable thesis for the application of both Section VI.1 of the Retirement and Pension Plan and Staff Rule 109.3(h). It may also be noted that the memorandum of November 8, 1971, prepared by the study group appointed by the Committee to report on the Complainant's retirement, cites the Policies and Procedures." Moreover, the reasoning of the Committee itself on the scope of the Policies and Procedures" expressly recognizes that they "are exclusively for internal use by the Committee," which implies that they are practices established by the Committee for the interpretation and application of the Plan. Since this is a "use," it should be considered to have a certain customary value. Because the applicable rules and regulations were violated in the Complainant's retirement, he was prevented from continuing his employment relationship, which is equivalent to a dismissal carried out by the Secretary General. Consequently, it is exclusively the responsibility of the General Secretariat to pay a termination indemnity pursuant to Staff Rule 109.6(a), consisting of the payment of nine months of basic salary instead of the nine weeks of salary given to him in application of Staff Rule 109.7(a), on the understanding that the nine weeks' payment he has already received will be deducted from the amount of the indemnity, since otherwise there would be unjust enrichment. It should be noted in this respect that the Grievance Committee says in its report that it believes "that it does not have the authority to examine a case that has already been decided upon by the Secretary General," and among its recommendations it states:
The report of the Advisory Committee on Reconsideration says:
That Committee reached the following conclusions and recommendations:
This confirms the violations of the rules and regulations that should have been observed in the Complainant's retirement. 6. As to the applicability of these regulations, it should be borne in mind that under the Plan retirement constitutes a specific right, based on the principle of compensating for the physical deterioration of the employee resulting from service over a given period, and on savings. It is also intended to avoid his continuing to work after his ability to perform has decreased. It thus presupposes the following requirements: to have reached a certain age and a certain length of service. Therefore, in dealing with a permanent employee, it is not proper to apply compulsory retirement solely on the basis of his meeting a single requirement, that of age. This would run counter to the nature and purpose of retirement unless it is accompanied by a certain length of service or unfitness to continue working. 7. As to the Complainant's petition for an indemnity equivalent to one year's salary for having, as he believes, been deprived of this sum by being denied the opportunity to apply for postponed retirement, this is inadmissible because by their very nature these two claims are alternative, not cumulative. As to another indemnity for the equivalent of an additional year's salary on account of the injuries, difficulties, and expenses he says he has suffered as a result of the General Secretariat action he is challenging, this is inadmissible because the labor indemnity established in the applicable Staff Rule 109.6(a), is set as redress for all the injuries derived from the termination of the appointment. The Complainant's petition for a reasonable sum for costs is out of order because proceedings before this Tribunal are free of charge, and it is a well-known rule of law that costs are not granted in labor proceedings. The Complainant's petition for a reasonable sum for attorney's fees is in order, bearing in mind the circumstances of the case, the general principles of law, and the practice of the United Nations Administrative Tribunal As to the General Secretariat's petition that certain expressions of the Complainant are offensive and should be stricken from the record, it is noted that these expressions are not being taken into consideration, and the request is thus satisfied. By virtue of the foregoing, the Tribunal unanimously RESOLVES:
4. The remaining petitions of the Complainant are found to have no merit.
Let notification be given. Washington, D.C., November 3, 1972
Mozart Víctor Russomano, Esq. / President Juan Bautista Climent Beltrán, Esq. / Vice President Carlos Giambruno, Esq. / Judge Jorge L. Zelaya, Esq. / Secretary OEA/Ser.R TRIBAD/5 3 November 1972 Original: Spanish |
