Judgment No. 47

René Saravia v. Secretary General of the Organization of American States

THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES,

Composed of Alejandro Tinoco, President; John L.A. de Passalacqua, Vice President; and Luis Alvarado, Judge,

Has before it for judgment the proceedings on the complaint filed by René Saravia against the Secretary General of the Organization of American States.

The Complainant was represented by Ovidio L. Martínez, attorney, and the Secretary General by Jack M. Simmons, attorney of the Bureau of Legal Affairs of the General Secretariat, all in conformity with Article 22 of the Rules of Procedure of the Tribunal.

WHEREAS:

    I. On December 4, 1978, the attorney for René Saravia filed a complaint, as authorized by the Statute of the Tribunal. After complying with the requirements as to the Complainant's personal and official status, he went on to explain the facts that had given rise to the complaint, and in this regard stated:

That on September 1, 1976, the Complainant was appointed to a permanent P-2 (01) post in the Office of the Secretariat of the General Assembly, the Meeting of Consultation, and the Permanent Council.

That on July 21, 1977, the Deputy Director of the Office informed the Director of the Office of Personnel that he was recommending the approval of the Complainant's appointment as a permanent staff member, because he had satisfactorily carried out the duties assigned to him. The recommendation was approved on July 22, 1977, by the Assistant Secretary General, Officer in Charge of the General Secretariat.

That the job description for the post to which the Complainant was appointed, specialist in the Office of the Secretariat of the General Assembly, the Meeting of Consultation, and the Permanent Council, signed by the Director of the Office of Personnel, lists its duties, the nature of the decisions and responsibilities involved in it, the nature and importance of the contacts with others it requires, the knowledge, languages, education, and experience required, and the fact that it had been classified as P-2 (01).

That between the time he started work in this post and February 1977, the Complainant discovered that in practice, his actual duties and functions and all the other requirements and conditions for the post were, according to the Classification Standards for posts in the General Secretariat, at the P-3 level, not the P-2 that had been assigned to it. The Director of his own office and the Office of Personnel had made an error in classification.

That the Complainant discovered the error not only from the Classification Standards, but also because the functions, duties, and responsibilities of two other staff members holding specialist posts in the same office were, in practice, the same as his, and their P-3 job descriptions were also the same. All this led him to the conclusion that the P-2 classification assigned to his post was due to an error by the General Secretariat.

That on February 18, 1977, the Complainant addressed a memorandum to the Director of the Office of Personnel, through the Director of his own office, about the classification of his post. He pointed out the facts and cited the regulations in effect, and asked that his post be reclassified to P-3. This memorandum was transmitted to the Director of the Office of Personnel on March 8, 1977, by the Director of the Complainant's office.

That on June 10, 1977, the Complainant again wrote to the Director of the Office of Personnel, repeating the request made in his memorandum of February 18, 1977, and asking for a reply.

That on January 5, 1978, the Complainant again wrote to the Director of the Office of Personnel about his request of February 18, 1977, and repeated the request for a reply.

That on January 20, 1978, the Complainant received a memorandum from the Director of the Office of Personnel, apologizing for the delay in replying to his request and telling him that, in accordance with a decision made by the General Assembly at its session in December, all individual desk audits had been suspended and classification actions would be carried out office by office, as stated in Personnel Circular No. 131/77.

That on February 6, 1978, the Complainant asked the Secretary General for the hearing provided for in Staff Rule 112.1. On February 23, 1978, since he had received no notification of the Secretary General's decision, he asked for reconsideration.

That the Complainant received a memorandum from the Director of the Office of Personnel dated February 23, 1978, informing him of the Secretary General's decision not to conduct an ad hoc audit of his post.

That on June 12, 1978, the Joint Advisory Committee on Reconsideration approved its report with the following recommendation to the Secretary General:

a. That the Office of Personnel fulfill its responsibility under Staff Rule 102.3(c) to transmit Mr. Saravia's request without delay to the Classification and Promotion Review Board;

b. That pursuant to Staff Rule 102.4(a)(ii), the Classification and Promotion Review Board examine and decide upon the request for a review of his post submitted by Mr. Saravia in accordance with Staff Rule 102.3(c), taking into account the preamble of this report.

That paragraph 4 of the preamble of the Committee's report states:

That in the opinion of the Department of Legal Affairs, Personnel Circular No. 131 and resolution AG/RES. 321 (V-E/77) may not be applied retroactively. The Legal Department says, in summary: "the schedule articulated in Personnel Circular 131/77 of August 1977 may not be retroactively applied in a case where a request by a staff member was made prior to its publication, and the instruction of the General Assembly AG/RES. 321 (V-E/77) to the General Secretariat may not be retroactively applied in a case where a staff member made a proper request in accordance with Staff Rule 102.3(c) prior to the adoption of the resolution."

That on July 11, 1978, the Secretary General decided to accept only that part of the Joint Advisory Committee on Reconsideration's recommendation that concerns the transmittal of Mr. Saravia's request of February 18, 1977, to the Classification and Promotion Review Board, along with the comments of the Office of Personnel, for the Board to determine what it considered advisable under the applicable regulations.

That on August 11, 1978, the Director of the Office of Personnel wrote to the Assistant Secretary General, in the latter's capacity as Chairman of the Classification and Promotion Review Board, transmitting the report of the Joint Advisory Committee on Reconsideration and the Secretary General's decision on the Complainant's case. He informed him that the Office of Personnel had been instructed to transmit the Complainant's request to the Board for whatever action it deemed pertinent.

That on September 7, 1978, the Director of the Office of Personnel sent the Complainant a memorandum concerning his request of February 18, 1977, in which he stated that "for your information, I am attaching a copy of the memorandum of August 16, 1978, from the Assistant Secretary General to the Secretary General, which is self-explanatory."

That the memorandum informed the Secretary General that the Classification and Promotion Review Board had decided to incorporate the Complainant's request into the regular post-review schedule.

That the Secretary General approved the decision of the Classification and Promotion Review Board. With this, the administrative procedures on the Complainant's request of February 18, 1977, had been exhausted and the Secretary General had taken his decision on the request.

The legal merits

That this action is based on the Complainant's right as recognized in Staff Rule 102.3(c). The right of every staff member to have a particularly post assessed and evaluated was recognized by the Tribunal in Judgment No. 32, of November 11, 1977, in which it ruled "that the Complainant may still invoke her right under Staff Rule 102.3(c) to an ad hoc analysis and evaluation of her post, without waiting for the schedule of office-wide post reviews established by the Secretary General for the 1977-1980 period."

That, according to Staff Rule 102.3(a), the Office of Personnel is responsible for ensuring that the nature of the duties and the level of responsibility required of a staff member are compatible with the classification standards applicable to the grade of his post.

That in the present case the Office of Personnel failed to meet this responsibility and violated the pertinent regulations and the Complainant's rights.

That he proposes that the Tribunal appoint an expert in job classification in international organizations to submit an expert report to the Tribunal on the following matters: first, whether the classification of post No. 01-76-02A-0100-001 (P-2-01) held by the Complainant, the duties, responsibilities, technical knowledge, languages, education, and experience for which appeared in the job description, corresponds to grade P-3 under the Classification Standards of the General Secretariat; and secondly, whether there are any differences between the description of the Complainant's post as a specialist and those of the other two staff members working as specialists in the same office that would require the Complainant's post to be classified as a P-2 and the other two posts as P-3, under the Classification Standards; and that, if so, the expert should specify whatever differences he believes he has found in the above job descriptions.

Specific petitions

That he prays the Tribunal to admit the evidence proposed in the present complaint.

That the decision being challenged, which the Tribunal should revoke and nullify, is the Secretary General's approval of the decision of the Classification and Promotion Review Board that the Complainant's request for the correction of the error committed in classifying his post should be incorporated into the regular post-review schedule.

That the obligation he seeks to have met is the correction of the error in classification committed by the Office of the Secretariat of the General Assembly, the Meeting of Consultation, and the Permanent Council and by the Office of Personnel in assigning grade P-2 (01) to the post of specialist held by the Complainant; to this end, the Tribunal should rule, on the basis of the facts, the legal merits, and the evidence in the present complaint, that the post must be classified as P-3, which is the proper classification for it according to the Classification Manual of the General Secretariat of the OAS, the job description, and the duties actually performed by the Complainant in that post.

That the correct P-3 classification of the post held by the Complainant should become effective for all pertinent purposes under the regulations as of February 18, 1977, the date on which the Complainant asked the Office of Personnel to correct the error.

That he therefore prays the Tribunal:

That it accept this complaint, with its documents and copies; admit the evidence proposed, along with any further evidence the Tribunal may consider useful in ruling on the case; and issue a judgment upholding the complaint, revoking the decision under challenge, and granting all the other specific petitions.

    II. On January 10, 1979, the attorney for the Secretary General answered the complaint and, after presenting his credentials as a representative, in accordance with Article 22.1 of the Rules of Procedure of the Tribunal, stated:

That the Complainant is basing his complaint on the argument that, despite his request, the General Secretariat has not reclassified his post. The request is based, as will be shown later, on an erroneous interpretation of the Staff Rules, and its presentation is procedurally defective. Furthermore, the duties performed by the Complainant are different from those performed by other staff members in his office, with the result that his present classification is correct.

That the regulations referred to by the Complainant were not applicable to him, and the General Secretariat's decision does not violate any of Mr. Saravia's rights.

That in his request for reclassification, the Complainant cites only portions of Staff Rules 102.3(b) and (c), and he quotes them out of context.

That Staff Rule 102.3(b) refers solely to the duties of the Office of Personnel. Staff Rule 102.3(c) establishes the procedures to be followed in the event that a staff member desires an audit of his post. If these Rules are compared with the actual situation described by the Complainant, it will be seen that his request contains fundamental errors, since the Rules he alleges were violated were not applicable to him.

That the Complainant's first error becomes apparent when the date of the most recent review of the post is compared with the date of the Complainant's request in the light of Staff Rule 102.3(c). The Office of Personnel reviewed this post before opening it to competition, so that it would be correctly classified.

That, furthermore, when it offered the post to the Complainant, the Office of Personnel again reviewed it for the same purposes before approving the appointment. On both occasions, the conclusion was reached that the correct classification was P-2. It is therefore obvious that when the request was submitted, 12 months could not have elapsed since the previous review of the post.

That the Complainant's second error becomes apparent when Staff Rule 102.3(c)(i) is compared with his status as a staff member. This Rule requires a staff member to have a permanent appointment before using this procedure. But Staff Rule 104.5(c), on permanent appointments, states that a staff member does not become permanent until he has satisfactorily completed his probationary period. In the present case, as the memorandum dated July 21, 1977, shows, the probationary period did not end until July 22,1977, some months after the request was submitted. Therefore, the Complainant did not have the right to submit such a request on February 18, 1977.

That the Complainant's third error is that he did not submit his request again after the 12 months prescribed in the regulations had elapsed, after he had become permanent.

That the last paragraph of Staff Rule 102.3(c) requires that requests meeting the requirements be transmitted to the Classification and Promotion Review Board. This was done in the present case at the level of reconsideration. The Secretary General therefore fulfilled all his duties by transmitting the request, together with the comments of the Office of Personnel, to the Classification and Promotion Review Board.

That even on the hypothesis that the Complainant's memorandum of January 5, 1978, might be considered an original request, it could not be processed because of resolution AG/RES. 321 (V-E/77) of the General Assembly, of December 15, 1977.

That this resolution was adopted by the General Assembly 21 days before the date of the memorandum. Therefore, when the Complainant submitted this request, both he and the General Secretariat were bound to respect and observe resolution AG/RES. 321.

That the Complainant has alleged violations of provisions that were not applicable to him. The Secretary General has taken no decision or measure that violated the Complainant's rights. The complaint therefore does not meet the minimum requirements established in Article II of the Statute of the Tribunal, and consequently, in our opinion, the Tribunal should rule that it is not competent to hear it.

That the Secretary General admits that the present complaint was filed within 90 days after the date on which the Complainant was notified of the decision he is appealing. He does not admit that all previous procedures were exhausted, since at no time did the Complainant appeal the decision taken by the Classification and Promotion Review Board. For this reason, and for the reasons set forth above, the present complaint is inadmissible.

That in the unlikely event that the Tribunal admits the complaint and rules that it is competent, the Secretary General now considers briefly the factual allegations on which the present complaint is based. His admitting certain facts does not mean that he also admits the Complainant's interpretations or conclusions. Furthermore, every factual allegation not expressly admitted by the Secretary General is hereby rejected.

That Mr. Saravia's conclusion that there is an error in the classification of his post demonstrates a lack of understanding of the classification process. He asserts that the functions, duties, and responsibilities of two other staff members holding specialist posts in the Office of the Secretariat of the General Assembly, the Meeting of Consultation, and the Permanent Council are, in practice, identical to those he performs, and that their job descriptions are also the same. In fact, there are fundamental differences between the P-3 job description for the posts of those staff members mentioned by Mr. Saravia and that of his own P-2 post. These differences are not minor details, as Mr. Saravia apparently believes; they are fundamental differences directly linked to the level of classification of the Complainant's post.

That the P-3 job description specifies that the incumbent deals with the top-level meetings of the OAS: the sessions of the General Assembly, the Meeting of Consultation of Ministers of Foreign Affairs, and the meetings of the Permanent Council and its committees and subcommittees. The P-3 job description also requires familiarity with the basic documents of the OAS, to be able to serve the sessions of these high-level political organs. Mr. Saravia's post, which does not involve responsibility for serving the sessions of the political organs, does not require the same knowledge of the basic documents of the Organization.

That, moreover, one of the P-3 job descriptions speaks of taking on more responsible duties in the secretariat of the Committees of the Meeting of Consultation when they go on missions away from headquarters. Mr. Saravia's description makes no mention of such duties. In fact, the differences between the P-3 job descriptions and the Complainant's P-2 job description are fundamental, since they refer to the complexity of the work, the nature and level of the contacts to be made, the impact of the work, the possible consequences of error, and the knowledge required to carry out the tasks assigned. These are essential elements that must be evaluated when a post is classified at a particular level. Where there are differences, it is only right that there should also be different classification levels. The fact that there are essential differences between the duties of the posts in question was attested to in writing by Samuel Echalar, the former Director of the Office of the Secretariat of the General Assembly, the Meeting of Consultation, and the Permanent Council, when the Complainant originally submitted his request for an ad hoc audit of his post. In a memorandum dated March 8, 1977, Mr. Echalar says that "the level of responsibility given to him is very limited;" this has been confirmed by Armando Cassorla, the present Director of the Office. From all this, it is clear that the Complainant has not been assigned duties of the same level of responsibility as the P-3 staff members.

That, finally, it should be strongly emphasized that a job description is only one element in the classification process. The opinion of the supervisor, to which reference has already been made, is essential to an understanding of the duties and functions of the post and to a determination of whether the incumbent is performing all the duties or more than the duties corresponding to the post. It is for this reason that audits are essential to an understanding of both the work that the staff member is actually doing and the nuances of the job description.

That it is true that on August 11, 1978, the Director of the Office of Personnel transmitted the report of the Joint Advisory Committee on Reconsideration to the Chairman of the Classification and Promotion Review Board. The Complainant is incorrect in saying that the Office of Personnel exceeded its powers and the instructions of the Secretary General when it said that the Secretary General was asking the Board to determine whether or not an ad hoc review of the Complainant's position was in order, not to reach a decision on the substance of the matter. The Office of Personnel not only correctly interpreted the spirit of the Secretary General's decision, but was instructed in that decision to transmit Mr. Saravia's request to the Board "with the comments of that Office." In fact, the Office of Personnel had a responsibility to make pertinent comments and to mention any existing information on the matter, such as Personnel Circular 131/77 and resolution AG/RES. 321 (V-E/77) of the General Assembly, which the Board already knew about anyway.

That, in fact, the periodic review plan announced in the Circular was prepared by the Board, and approval of it was recommended to the Secretary General. Resolution AG/RES. 321 of the General Assembly dates from December 1977, and therefore, more than six months having gone by since it was adopted, the Classification and Promotion Review Board must have known about it, and indeed did know about it, because it was a decision of fundamental importance on classification matters.

That this conforms to the text of Staff Rule 102.3(c), which clearly states that requests meeting the conditions listed in paragraphs (i), (ii), and (iii) of that Rule will be transmitted, along with the comments of the Office of Personnel, to the Classification and Promotion Review Board. The Board will issue an opinion on these requests, and consider incorporating them into the post-review plan.

That under the current system in the General Secretariat, which is described in Chapter II of the Staff Rules, the level of the post may be determined only by an audit. In compliance with Staff Rule 102.3(c), the Board considered incorporating Mr. Saravia's request into the post-review plan. It decided to do so, specifically, in the regular review of all posts in the Office of the Secretariat of the General Assembly, the Meeting of Consultation, and the Permanent Council, where the Complainant's post is located. In sum, there were no procedural errors or violations of the Staff Rules damaging to Mr. Saravia's interests.

That the Complainant alleges that the right to request reclassification is based on Staff Rule 102.3(c) and that he complied with the requirements of that Rule. The Secretary General recognizes that the right to request a post audit does exist when all the requirements are met. In this case, the Complainant did not meet two of the three requirements, and therefore has no right to request a post audit.

That the Secretary General admits that the Office of Personnel is responsible for ensuring that the nature of the duties and the level of responsibilities entrusted to a staff member are compatible with the Classification Standards. The allegation that the Office of Personnel did not comply with this regulation, and consequently violated the regulations, is not true.

That the Secretary General admits that the Office of Personnel did not act until January 20, 1978. However, since the Complainant had not met all the essential requirements, the Office of Personnel was not obliged to act at all.

That since the request was not submitted in due time or in proper form, we do not have here a case of retroactive application of Personnel Circular No. 131/77, or of resolution AG/RES. 321 of the General Assembly. For the same reason, the application of the Personnel Circular of April 24, 1978, did not violate any of the Complainant's rights.

That for the same reasons, the decision by the Secretary General confirming the decision of the Classification and Promotion Review Board did not violate any of the Complainant's rights.

That as for the request for expert testimony, the Secretary General considers it unnecessary in the first place; and secondly, he rejects the contents of the report requested by the opposing party. If expert testimony is indeed taken, it should cover all the circumstances that a desk audit would take into account, not just a comparison of job descriptions, as the Complainant proposes.

That by reason of the foregoing, the Secretary General prays the Tribunal:

To rule that it is not competent to hear the present complaint.

To rule that the complaint is not admissible.

To dismiss the complaint in all its parts, without indemnity to the Complainant.

In the hypothetical case that the complaint is admitted, to call Daniel Conway of the Office of Personnel, an expert in classification matters, as a witness.

In the hypothetical case that the Tribunal accepts the Complainant's arguments, to order the General Secretariat to conduct a desk audit of the Complainant's post taking all the appropriate factors into account, the findings of which must be respected by the Complainant and by the General Secretariat.

To order the Complainant to pay the General Secretariat US$750, the cost to the Secretary General of the defense of his legitimate rights.

    III. On January 29, 1979, the attorney for the Complainant presented his reply to the answer presented by the attorney for the Secretary General, in conformity with Article 13.3 of the Rules of Procedure of the Tribunal.

    IV. On February 28, 1979, the attorney for the Secretary General presented his response to the Complainant's reply.

    V. On April 9, 1979, in accordance with Article 14.2 of the Rules of Procedure of the Tribunal, the case was placed on the list of matters pending consideration. Once the President had set the opening date for the session corresponding to the second quarter of the year, the pertinent steps were taken. The Tribunal met as scheduled, deliberated on the case sub judice, and, pursuant to articles 17 and 18 of its Rules of Procedure, decided to take the testimony offered by the Complainant and hold the oral proceedings requested by both parties on May 22, 1979, at 4:00 p.m.

The hearing and the oral proceedings took place on the day and at the time indicated, as the record shows.

After the oral proceedings, by Resolution No. 81 of June 1, 1979, the Tribunal decided, taking into consideration a communication dated May 21 in which the attorney for the Secretary General informed it that the Complainant's post had been audited on April 30, and that the results would not be available on the date of the hearing, that it would be best to wait for the results and recommendations of the audit before reaching its decision on the case.

The findings of the audit of posts of the General Secretariat appear in document CP/doc.1019/79 of September 13, 1979.

In accordance with Article 27 of the Rules of Procedure of the Tribunal, one of its members was designated to draft the judgment.

Having examined the proceedings, the Tribunal now

CONSIDERS:

I. COMPETENCE OF THE TRIBUNAL

    1. That it is competent to hear the present complaint, pursuant to Article II of its Statute.

The Complainant is appealing to the Tribunal against the decision of the Secretary General confirming the recommendation of the Classification and Promotion Review Board that the review of the post he held at that time, which he had requested on three occasions (February 18, 1977, June 10, 1977, and January 5, 1978), be conducted in 1979 as part of the regular post-review schedule.

The Complainant is petitioning this Tribunal:

a. To revoke the Secretary General's decision;

             b. To order the reclassification of his post to the P-3 level; and

c. To order that this classification take effect as of the date on which the initial request was presented, that is, February 18, 1977.

The Secretary General challenges the Tribunal's competence in the present case, arguing that the previous procedures had not been exhausted, since the Complainant had never appealed the recommendation of the Classification and Promotion Review Board.

The Tribunal observes that the argument that it is not competent is inadmissible, since there is no provision for any appeal against the recommendations of the Classification and Promotion Review Board. The Secretary General also asserts that the Complainant was out of time in presenting his request in February 1977, since the probationary period called for in the regulations had not been completed.

    2. Now, it can be seen from Staff Rule 104.5(b)(i) that during the 12-month probationary period a staff member with a permanent appointment, such as the Complainant, enjoys all the benefits pertaining to that appointment, including the right to request a desk audit without having to wait until the end of his probation.

    3. The attorney for the Secretary General also asserts that the Complainant has not exhausted the previous procedures, since resolution AG/RES. 321 (V-E/71) adopted by the General Assembly in December 1977, i.e, some months after the Complainant presented his request (to which the General Secretariat did not reply), ordered that no more ad hoc reclassifications should be made until a definitive classification system had been established.

This Tribunal finds that before resolution AG/RES. 321 was adopted the Complainant exercised his right to request an assessment and evaluation of his post in timely fashion, clearly and with an explanation of his reasons, in his memorandums to the Director of the Office of Personnel, dated February 18 and June 10, 1977, as provided for in Staff Rule 102.3(c). The Office of Personnel preferred not to reply to these memorandums, when it should at least have indicated to the Complainant whether his request was in order or not.

Therefore, this Tribunal feels that the Secretary General may not describe as an abandonment of any right a legal act that the Complainant has demonstrated he took unambiguously, in conformity with the regulations.

Even accepting the argument of the attorney for the Secretary General on the need to complete the probationary period --an argument with which this Tribunal disagrees for the reasons given above-- once the Complainant had satisfactorily completed his probationary period, the Office of Personnel should have processed his request according to the regulations.

    4. By reason of all this, this Tribunal holds that it is competent to hear the present complaint, because it is a matter covered by Article II of its Statute and because the provisions of Article VI of the Statute have been complied with.

II. THE MERITS OF THE CASE

    5. At the time of the first hearing on this complaint, the General Secretariat had already conducted the general audit of posts in the Secretariat, including an audit of the Complainant's post. From the results of the audit published in document CP/doc.1019/79, of September 13, 1979, and from the report and documents presented on November 20, 1979, by the Secretary General at the request of the Tribunal, it is evident that, because of the degree of responsibility and the nature of the duties, the Complainant's post should be reclassified to the P-3 level, which is his essential petition in this case.

By virtue of the foregoing, and pursuant to articles II and VII of its Statute, the Tribunal unanimously

RESOLVES:

    1. To grant the Complainant's petition and order the Secretary General to reclassify to the P-3 level the post of specialist held by the Complainant in the Office of the Secretariat of the General Assembly, the Meeting of Consultation, and the Permanent Council.

    2. To order that all the concomitants of this reclassification be effective as of February 6, 1978, the date on which the Complainant began the hearing procedure in accordance with Staff Rule 112.1.

    3. To set the sum of US$1,500 to be paid by the General Secretariat for attorney's fees incurred by the Complainant in the defense of his rights in this complaint.

Let notification be given.

Washington, D.C., November 29, 1979

Alejandro Tinoco, Esq. / President

John L.A. de Passalacqua, Esq. / Vice President

Luis Alvarado, Esq. / Judge

Domingo E. Acevedo, Esq. / Secretary