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Judgment No. 69
Complaint No. 105 Hugo G. Alemán v. Secretary General of the Organization of American States
THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES, Composed of José Eugenio Jacquet, President; Alejandro Tinoco, Vice President; and Humberto García Ortiz, Judge, Has before it for judgment the proceedings on the complaint filed by Hugo G. Alemán against the Secretary General of the Organization of American States. The Complainant was represented by Ovidio L. Martínez, attorney, and the Secretary General by William M. Berenson, attorney of the Secretariat for Legal Affairs, all in conformity with Article 22 of the Rules of Procedure of the Tribunal. WHEREAS: I. On April 19, 1982, the attorney for Hugo G. Alemán, a former staff member of the General Secretariat, filed a complaint, as authorized by Article II of the Statute of the Tribunal, against the Secretary General of the OAS, based on the following administrative decisions:
The Complainant stated: That the Tribunal is competent to hear the complaint, in accordance with Article II of the Statute, because the decisions and actions being challenged violated the General Standards, the Staff Rules, and other provisions, and that although his services have been terminated, he is claiming rights that belonged to him as a staff member of the Organization. That the complaint is being filed on account of administrative decisions and official actions that, according to the Complainant, failed to recognize his status as a permanent staff member and ordered a settlement of benefits that was insufficient and contrary to the regulations and to administrative practice in the matter. That he entered the General Secretariat on November 7, 1974, in grade P-4, step 1, as a technician in the field of manpower and employment, performing permanent functions assigned by the program-budget to the economic and social area. Under contracts with the General Secretariat, he served without interruption from that date until December 31, 1981, in programs and projects of his field of specialization, in Mexico, Guatemala, and El Salvador, and during seven years was responsible for permanent functions as a technician in manpower and employment with the professional grade P-4. That at the end of December 1981 he was in El Salvador, preparing to leave on an official mission for which the Administration had communicated authorization and an advance of travel funds. On January 25, 1982, a few days before the beginning of his official mission, a cable signed Scheman/López was received in the Office of the OAS in that country, the text of which was as follows: "26 RE OUR 513 AUTHORIZATION FOR HUGO ALEMAN CANCELED REQUEST EMPLOYEE TO RETURN FUNDS ADVANCED FOR TRAVEL AND INSTALLATION." That because nothing was said about why the mission had been canceled, the Complainant traveled to the headquarters of the General Secretariat in order to obtain clarification of the official reasons. That on February 16, 1982, he was informed in the Department of Human Resources that his contract had been terminated as of December 31, 1981, and he was given no official reasons for the cancellation and the request to return the funds. That on February 17, 1982, he presented a memorandum to the Secretary General requesting a hearing, under Staff Rule 112.1 with a view to having the decision terminating his services nullified and his status as a permanent employee recognized, and, in any case, to having his settlement take into account his permanent status. In the memorandum he said that his request was based on his having served without interruption from November 1974 through December 31, 1981, when his services were terminated without justification, and that in all the contracts that had been issued to him in seven years the functions assigned to him were of a permanent nature in technical labor matters of manpower and employment. That after receiving the notification of his termination, he went to the Office of Financial Services of the OAS to receive his settlement of benefits, a copy of which is in the record. Since he was unable to remain in Washington, he sent the Secretary General a memorandum dated February 19, 1982, reserving his right to request a correction of the settlement and the payment of what had not been properly included. That the settlement did not include the termination indemnity provided for in Staff Rule 110.7, which is due him for seven years of service in posts with permanent functions. That the Secretary General did not resolve the basic question that the Complainant had raised in his memorandum of February 16, 1982, but limited himself to denying him the administrative procedures corresponding to the rights of employees. This is why he has had to bring this claim to the Tribunal. That the Secretary General, in a completely arbitrary and discriminatory fashion, has recognized rights as permanent employees for staff members on fixed-term contracts for periods similar to those of the Complainant. They have been paid the indemnity provided for in Staff Rule 110.7 while he, in contrast, has not even been given the reasons and legal grounds for denying him the indemnity. That the complaint is based on Article 16 of the General Standards, which established the international career service for the performance of permanent functions; on Staff Rule 104.5(c), which establishes that permanent appointments are those made for carrying out permanent functions and that they shall be for an indefinite period; and on Staff Rule 104.5(b)(ii), which provides that fixed-term appointments are those made for the carrying out of specific programs or purposes, so that the contracts issued to him could not have been for a fixed term because they dealt with permanent functions. That in accordance with the general principles of labor law, the nature of the contractual relationship depends not on the label given in the document (which is imposed by the employer on the employee, who has to accept it as an adhesion contract) that states the obligations and rights, but on the legal definition of the relationship. That in support of his complaint he cites Tribunal judgments No. 19 of May 28, 1976, and No. 27 of November 17, 1976, on contracts in cases of permanent functions assigned to the staff; Staff Rule 110.7; and the instructions given by the Secretary General to the Department of Human Resources to recognize the right to termination indemnity of staff members who had served more than five years in posts with permanent functions, whatever the title or type of their employment contract with the General Secretariat. That, specifically, the Complainant prays that the complaint be treated in accordance with the Statute and the Rules of Procedure of the Tribunal, including the oral proceedings referred to in Article 18 of the Rules of Procedure; that the Tribunal admit the evidence proffered and any other that it may consider useful to a sound decision; and that a final judgment be issued accepting the complaint, revoking the decisions challenged, and ordering the Secretary General to pay the Complainant the termination indemnity provided for in Staff Rule 110.7, in the amount corresponding to seven years of service with a permanent appointment, for having performed permanent services in posts of grade P-4, step 8. II. In his answer, the attorney for the Secretary General stated: That each of the Complainant's four successive contracts was financed with voluntary funds and called for technical services in the field in a specific national or regional project of the OAS Program of Social Development. That before his last fixed-term contract expired, the Program offered the Complainant an extension contract under which he would provide services in Ecuador starting at the beginning of 1982. The Complainant rejected this offer, claiming that he could not travel to that country at that time, and made a counteroffer to assume his duties in Ecuador later that year. The General Secretariat did not accept the counteroffer and proceeded to terminate the contract in accordance with its terms. That the Complainant's claims are completely groundless both in fact and in law. His contract ended in accordance with its terms when he rejected the offer of extension on the terms proposed by the General Secretariat. That by their very nature the Complainant's functions are not permanent nor do they entitle him to permanent status. Moreover, the General Secretariat cannot confer permanent status on the Complainant because resolution AG/RES. 435 (IX-O/79) prohibited making permanent appointments after December 31, 1979. That even if the Complainant were a permanent employee he would not be entitled to an indemnity since, in conformity with Staff Rule 105.2(e), his refusal to assume his duties in Ecuador was a tacit resignation of his position with the General Secretariat, by which he lost all right to the termination indemnity under Rule 110.7. That he stipulates to the competence of the Tribunal and to the admissibility of the complaint from a procedural standpoint, but denies its legal basis on the merits. That he denies that the Complainant was preparing to go on an official mission to Ecuador, since the cable he sent the Secretary General on January 7, 1982, contradicts that allegation. That the decision to cancel, made at the beginning of January 1982 and not on January 25 as the Complainant indicates, was taken after he notified the General Secretariat by telephone and cable that he would not go to Ecuador as he had been ordered. That in view of the communications between the Complainant and the General Secretariat at the beginning of January 1982, his assertions that he did not learn about his termination, or about the reasons for it until mid-February, are hardly sincere. That he denies the validity of the Complainant's request for a hearing. He also denies that the Complainant has a right to the indemnity referred to in Staff Rule 110.7. That he admits that the hearing requested by the Complainant was denied under Rule 112.1. The procedures provided for in Chapter XII are applicable only to staff members, and the Complainant was no longer a staff member when he made his request. That the Complainant was hired on contract to provide direct technical assistance as part of a specific project in Mexico financed by the Special Multilateral Funds, which are made up of voluntary contributions, unlike the Regular Fund, which is made up largely of compulsory contributions of the member states. The Complainant was given similar contracts for direct services in Guatemala and El Salvador. That the managers of the Program of Social Development interpreted the Complainant's refusal to travel to Ecuador as a rejection of the contract and as a counteroffer. Even if they had wished to keep him on in El Salvador they could not have done so because of a decision by the Inter-American Economic and Social Council to discontinue its project in that country; nor could they leave the commitment in Ecuador pending indefinitely, as the Complainant proposed, which made it necessary to hire another specialist for the latter project. That the reasons asserted by the Complainant for suspending the mission to Ecuador were the political situation in El Salvador, which at the moment made it impossible for him to spend much time working in a country far away from Central America, and his family situation, with two children in college who could hardly have accompanied him even under normal conditions. That Article 16(a) of the General Standards does not provide that only members of the career service may perform permanent functions; section (b) of that article recognizes that, "in exceptional cases" and "when this is strictly necessary," personnel employed on contract may perform functions related to regular activities of the General Secretariat for a limited time. By resolution AG/RES. 435 (IX-O/79) the General Assembly added by implication that contract personnel could perform permanent functions when it ordered that as of January 1, 1980, no permanent appointment to the career service should be made until the adoption of a new career service policy. In enacting that resolution, the General Assembly understood that, as permanent staff members resigned, their posts with permanent functions would be filled by contract personnel who would remain under contract indefinitely until the new career service went into effect. That Staff Rule 104.5(c) does not preclude the performance of permanent functions by contract personnel, especially in the light of resolution AG/RES. 435. That when it prohibited permanent appointments for posts that involve permanent functions, resolution AG/RES. 435 amended Staff Rules 104.5(b)(ii) and 104.5(b)(iii) by implication, to permit the employment of contract personnel for carrying out permanent functions for longer fixed periods, at least until the adoption of a new career service. That none of the Complainant's contracts required the performance of permanent functions, and they were in accord with the criteria for fixed-term contracts set out in Staff Rule 104.5(b)(ii). That the decisions in judgments No. 19 and 27 cited by the Complainant are not applicable to this case, since in those cases the staff members were performing permanent functions, which is not true of the Complainant, who provided technical services in connection with specific programs in the member states. That the Complainant is not entitled to the termination indemnity provided for in Staff Rule 110.7, because he was on fixed-term contract, and even if he had had permanent status he would still not be entitled to the indemnity because of his refusal to transfer to Ecuador, since Staff Rule 105.9 provides that the refusal of a staff member to accept a transfer without justified cause shall imply his resignation. That the Complainant was not entitled to a renewal of his contract or to advance notice of its termination, in accordance with Rule 110.2. The contract clearly established December 31, 1981, as the expiration date, and so there was no impropriety in his separation. That he prays that the complaint be dismissed and that costs be assessed against the Complainant. III. In his reply to the answer by the attorney for the Secretary General, the Complainant, through his attorney, stated: That the opinion of the attorney for the Secretary General that the Complainant's functions were not permanent because he was receiving his salary from Special Multilateral Funds is groundless. According to that opinion, permanent functions are administrative, support services, and personnel management, which are precisely those that according to the OAS Charter are auxiliary. They exist and are necessary only so long as there are functions of a substantive nature--the ones that are really of interest to the member states and are the real reason for its creation as an international entity. That the answer does not mention the fact established in the complaint that the Secretary General has recognized rights as permanent employees for staff members who had served on fixed-term contracts for more than five years, who were paid the termination indemnity provided for in Rule 110.7 when their services were terminated. That the cable presented as evidence by the attorney for the Secretary General was not sent by the Complainant, as he erroneously asserts, but by the Director of the Office of the General Secretariat of the OAS in El Salvador. That the answer states that the decision to cancel the Complainant's mission was made at the beginning of January 1982, but the settlement of benefits refers to a termination as of December 31, 1981, because of expiration of contract. IV. In his response to the Complainant's reply, the attorney for the Secretary General stated: That the argument that the functions were permanent because the economic and social development programs fall within the broad objectives of the Organization is erroneous, because the permanence of a program does not imply the permanence of a specific project of that program. That in order to ensure the proper dynamism in the area of economic and social development, only a few of the projects or activities can be considered permanent. That the technical expertise and other requirements for achieving the general objectives cannot be permanent; they must respond to the changing and specialized needs of the member states. That the fact that someone is working in a program related to a permanent objective of the Organization has nothing to do with whether the functions are permanent. If that were the case, everyone who provides services in OAS programs would have to be a member of the career service, which is not so according to Article 16 of the General Standards. That the Complainant's allegation that rights as permanent staff members have been recognized for personnel on fixed-term contracts more than five years, and that they have been paid the indemnity provided for in Rule 110.7, was denied in the answer. That the cable appearing as Appendix 2 of the answer was sent by the Director of the Office of the General Secretariat of the OAS in El Salvador at the Complainant's request. V. On August 13, 1983, in accordance with Article 14.2 of the Rules of Procedure of the Tribunal, the complaint was placed on the list of cases pending consideration. Once the President had set the opening date for the twenty-second session, the pertinent steps were taken and the Tribunal was composed of Luis Alvarado, President; Julio Barata, Vice President; and Alejandro Tinoco, Judge. It met as scheduled, deliberated on the case sub judice, and decided, in accordance with articles 16 and 18.3 of the Rules of Procedure, to receive the testimony offered and hold the oral proceedings requested by the Complainant on September 14, 1982, at 3:00 p.m. Since it was not possible to take the testimony of some of the persons offered by the parties, which the Tribunal considered necessary for a proper decision, or to hold the oral proceedings, the Tribunal decided to continue its consideration of the complaint and issue its judgment at the next session. VI. Once the President had set the opening date for the twenty-third session, the pertinent steps were taken and the Tribunal was composed of José Eugenio Jacquet, President; Alejandro Tinoco, Vice President; and Humberto García Ortiz, Judge. It met as scheduled, deliberated on the case sub judice, and decided that, in accordance with articles 17 and 18.3 of the Rules of Procedure, the testimony that remained pending from the previous session would be heard and the oral proceedings requested by the Complainant would be held on May 6, 1983, at 3:30 p.m. The hearing for testimony and oral proceedings began on the day and at the time indicated, as the record shows. The Tribunal then decided that further evidence was unnecessary. On May 10, 1983, the case was placed on the list of cases pending consideration, in accordance with Article 14.2 of the Rules of Procedure of the Tribunal. In accordance with Article 27 of the Rules of Procedure, one of the 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, in accordance with Article II of its Statute. II. NATURE OF THE CONTRACT 2. The Complainant entered the Organization on November 7, 1974, as a technician in the field of manpower and employment and performed functions of that nature until December 31, 1981, in several programs and projects in his field of specialization in several countries --Mexico, Guatemala, and El Salvador-- during a period of seven years under several contracts that were successively renewed. 3. The following may be gathered from an analysis of the regulations governing this situation: 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 carrying out specific programs or purposes and may be for a period of one to five years; short-term appointments are to fill vacancies or perform sporadic duties for a period of less than one year (Rule 104.5 of the Staff Rules in effect at the time of the contracts concerned). There is a so-called "probationary period" of six months, which may be extended by the Secretary General, for permanent and fixed-term contracts. 4. Before analyzing the nature of the Complainant's services to the Organization, the Tribunal considers it advisable to establish that formally the status of Hugo G. Alemán was that of a person hired on contract under a fixed-term appointment, since his services were engaged for a fixed period that might be from one to five years and with a temporary appointment of the kind made for carrying out special programs or projects for no more than five years. III. DOCTRINE OF THE TRIBUNAL 5. However, this Tribunal has repeatedly stated that where the functions are permanent, even if the person has been employed on a number of contracts for less than one year each or on a series of fixed-term contracts or for a specific purpose or task, the contract must be regarded as permanent. This would be a typical case of simulation, and the unanimous jurisprudence in labor matters is that such continuing contracts constitute a single employment relationship and involve a single contract for an indefinite period. To hold otherwise would be to hand the employer an opportunity, by the simple mechanism of renewing the short-term or special-purpose contracts, to flout the condition that permanent services are to be carried out by permanent staff, as appears from an interpretation of Staff Rule 104.5. So long as that Rule is in effect, or terms of employment subject to that standard prevail, the Tribunal must necessarily apply that doctrine with a view to preventing any simulation, as it did in judgments No. 27 and 28. 6. Nevertheless, this depends on the existence of a permanent function clearly defined in accordance with that Rule (which was 104.2 of the Staff Rules that were in effect at the time of the first contract in question). So-called temporary appointments are for special programs or projects, and when there is no special program or project the work shall be understood as involving a permanent function of the Organization. What determines its permanence is that, in accordance with Staff Rule 104.5(c), it does not concern a specific program or purpose. From the description of the tasks assigned to the Complainant, it may be seen that they concern specific programs for a particular purpose. 7. This Tribunal has established in previous judgments that merely calling contracts fixed-term or for a specific purpose does not mean that no permanent contract exists. If they are continuous and the work involves a permanent function of the Organization, there is then a single contract that must be recognized as entailing a permanent appointment. IV. REPEAL BY IMPLICATION 8. This Tribunal cannot admit the assertion of the representative of the Secretary General that in prohibiting permanent appointments for posts involving permanent functions, resolution AG/RES. 435 "by implication amended Rules 104.5(b)(ii) and 104.5(b)(iii), to permit the hiring of contract personnel to perform permanent functions for longer fixed terms lasting at least up until the implementation of a new career service." Such a conclusion is totally inadmissible, since in good construction there can be no implicit repeal that restricts acquired rights. If the employer desires to restrict potential rights of the worker he can do so explicitly, invested as he is with the legislative power to make that change. Consequently, an implicit repeal is inadmissible when it is intended to restrict acquired rights, which deviates from any sound construction of lawmaking standards. V. THE CASE UNDER CONSIDERATION 9. This Tribunal considers that on the one hand it has not been sufficiently shown that this complaint involves permanent functions: on the contrary, the Complainant's work had to do with specific programs and purposes, even though those programs and purposes conformed to a general objective of the Organization according to its constituent Charter or its General Standards. What is more, even if it had been clearly shown that his functions were permanent, his resulting rights would start only from the time when he made a formal claim by expressing his objection to being continuously employed on fixed-term contracts, which the Complainant did not do. And with respect to the indemnity he requests, on the basis of the alleged fact that he had a permanent contract and consequently should be paid an indemnity in accordance with Staff Rule 110.7, the Tribunal finds that the evidence in the record is sufficient to show that by his not accepting the new contract offered to him his employment relationship with the Organization was terminated by his own free will, and consequently the indemnity requested is not called for. VI. AWARD OF COSTS 10. The representative of the Secretary General has petitioned in his answer that the Complainant be assessed the costs that the General Secretariat has incurred in the case. The Administrative Tribunal has tried to be very cautious about awarding costs, considering the very special circumstances of the procedure governed by its Statute. All the same, it has imposed costs on the General Secretariat in earlier complaints and for this purpose has established the general criterion that a party who has brought a clearly frivolous claim or objection, or who did not have solid grounds for litigating or who, even if he did, has been totally defeated, is liable to the assessment of costs. 11. The Administrative Tribunal considers that, in the interests of procedural parity, this doctrine should be applied to the General Secretariat and the Complainants alike. However, the Tribunal observes that the enforcement of costs is a matter beyond its competence. This is particularly apparent when costs are assessed against the Complainant. Given the criterion that has been set regarding the award of costs, the Tribunal decides in the present case that, since the Complainant has been totally defeated, the costs shall be charged to him. By virtue of the foregoing, and pursuant to Article VII.1 and 2 of its Statute, the Tribunal unanimously RESOLVES: 1. To deny the Complainant's petition that his employment relationship be considered permanent. 2. To deny the Complainant's petition for the termination indemnity provided for in Staff Rule 110.7. 3. To assess the Complainant the amount of US$1,500 for procedural costs, because his claim has been dismissed in all its parts.
Let notification be given. Washington, May 12, 1983
José Eugenio Jacquet, Esq. / President Alejandro Tinoco, Esq. / Vice President Humberto García Ortiz, Esq. / Judge Alvaro Gómez, Esq. / Secretary
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