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Judgment No. 9
Complaint No. 15 Carlos J. Mendoza v. Secretary General 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 Alejandro Tinoco, Judge, Has before it for judgment the proceedings on the complaint filed by Carlos J. Mendoza Contreras against the Secretary General of the Organization of American States. The Complainant acted on his own behalf and was also represented by Juan F. Bauta y Delgado, attorney, and the Secretary General was represented by F. V. García-Amador, Director of the Department of Legal Affairs of the General Secretariat of the Organization of American States, and by Robert M. Carswell, Jr., and José I. Tremols, attorneys of the same Department, all in conformity with Article 20 of the Rules of Procedure of the Tribunal. WHEREAS: I. On February 20, 1974, Carlos J. Mendoza Contreras filed a complaint, as authorized by the Statute of the Administrative Tribunal, against the Secretary General of the Organization for violation of the General Standards to Govern the Operations of the General Secretariat and other applicable provisions. After complying with the requirements as to his personal and official status, the Complainant went on to explain the facts that had given rise to the complaint and in this regard stated: That since November 14, 1961, he has been an employee of the General Secretariat; since January 1, 1963, he has held a permanent appointment; and since July 1, 1967, he has occupied the post of assistant, grade P-1, in the Department of Information and Public Affairs. That on March 12, 1973, he was informed that the Secretary General intended to abolish the post of assistant in the Department of Information and Public Affairs effective June 13, 1973. On May 15 he asked for a hearing by the Grievance Committee. On November 7 he was sent a letter dated November 1 informing him that the Secretary General had decided to terminate his services. On November 8 he requested reconsideration of the Secretary General's decision and the convocation of the Advisory Committee on Reconsideration. On December 19 the Director of Personnel sent the Advisory Committee on Reconsideration a note in which he stated, for the first time, that it was not possible to make the Complainant a reasonable offer of reassignment. On January 18, 1974, he asked the Advisory Committee on Reconsideration to hear him in relation to the December 19 note from the Director of Personnel, but on January 18, 1974, the Committee decided to deny his request and to recommend to the Secretary General that he confirm the decision of which the Complainant had been informed by the letter of November 1, 1973. That the 30-day period mentioned in Article VI.3 of the Statute of the Tribunal began to run on January 18, 1974, the date on which the Advisory Committee on Reconsideration submitted its report to the Secretary General. Accordingly, the 90-day period within which a Complainant may lodge a complaint began to run on February 19. That the first ground on which he bases his complaint is the fact that the recommendation of the Advisory Committee on Reconsideration to the Secretary General is based on Staff Rule 109.5(b)(iii), which is not applicable to his case because it was repealed by articles 17(b) and 51(b) of the General Standards to Govern the Operations of the General Secretariat. He cites a number of examples that in his opinion show that in cases similar to his own, the General Secretariat has gone beyond the limits contained in Staff Rule 109.5(b)(iii). The Director of Personnel, in his note dated December 19, 1973, mentions posts of five different general occupational types among those he says he has reviewed in search of one to offer him. That the Secretary General's decision to terminate his services was taken after the repeal of Staff Rule 109.5(b)(iii) by the entry into force of the new General Standards on July 1, 1973, and therefore that Staff Rule is not applicable to his case. That, since his post has been abolished, he is entitled, as a member of the international career service, to remain in the service of the Organization and has priority for retention over staff members with less seniority and equality of other conditions, in accordance with the initial paragraph and subparagraph b of Article 17 of the General Standards. There are at least five posts in the same category and grade as the one he held to which he has a preferential right; he mentions those posts, states the reason for his preferential right, and requests that his complaint be brought to the knowledge of the incumbents of those posts. That in the event that the Tribunal finds that Staff Rule 109.5(b)(iii) was not repealed by the entry into force of the new General Standards, he requests that that subparagraph be interpreted restrictively, and to that end cites cases he considers similar to his own that have been decided by the Administrative Tribunals of the United Nations and the International Labor Organization. Even without a restrictive interpretation, the Rule clearly permits the grouping in the same general occupational type of all posts that require no specific university or occupational training or qualifications but similar basic knowledge, aptitude, and experience for satisfactory performance, as occurs with posts classified at the lowest level of the professional category, P-1, which is that of his post that was abolished. That he requests that the persons he mentions as the incumbents of the posts to which he believes he has a better right be given an opportunity to intervene if they so wish. He prays that the complaint be allowed and his reinstatement in the OAS international career service be ordered, and that, should use be made of the option provided for in Article 2 of the Transitory Provisions of the Statute of the Tribunal, the amount of the indemnity be set at US$40,000. II. On March 18, 21, and 27, 1974, respectively, Santiago Bartucevic Aravena, María Antonieta Odekerken, and Humberto M. Valdés appeared before the Tribunal, submitted interventions and asked to be accepted as third parties in the complaint. Each of them stated the reasons which, in his opinion, should be taken into account to ensure that the final judgment would not injure them, and all put special emphasis on the fact that their functions are of a different general occupational type from those corresponding to the ability and experience of the Complainant. On April 16, 1974, the requests to intervene were admitted, in accordance with articles 19 and 23.2 and 3 of the Rules of Procedure of the Tribunal. III. On March 25, 1974, the Secretary General answered the complaint and stated: That Staff Rule 109.5(b)(iii) is still in force, and in any event the decision of the Secretary General was adopted before July 1, 1973, as is shown by the letter of March 12, 1973, by which the Complainant was informed that the Secretary General intended to abolish his post effective June 13, 1973. That the Complainant's post has been abolished by the Secretary General in exercise of the powers conferred on him by Article 119 of the Charter and the pertinent articles of the General Standards. The Secretary General did everything possible to reassign Mr. Mendoza but concluded that there was no post available to offer him. That the General Standards contain no explicit provision repealing provisions of the Staff Rules. Nor can it be accepted that there was a tacit repeal, because the Standard cited by the Complainant [Article 17(b)] states that preferential consideration must be given to the staff member "other conditions being equal" and this principle is developed in the Staff Rules. From this it can be seen that Staff Rule 109.5(b)(iii) contains no provision incompatible with or contrary to Article 17(b) of the General Standards, but rather specifies the "conditions" for the competition that takes place when a reduction in force occurs. Therefore, that Staff Rule not only is not contrary to Article 17(b) but rather supplements it by establishing the conditions that that article provides for in the abstract. That there is also no conflict between Staff Rule 109.5(b)(iii), so frequently cited by the Complainant, and Article 51(b) of the General Standards. The judgments cited by the Complainant in support of his argument relate to different situations, since the personnel regulations of the United Nations and of UNESCO differ from those of the OAS General Secretariat on the issue that is the subject of Mr. Mendoza's complaint. That with respect to the cases cited by the Complainant of staff members who have been reassigned to other areas of the General Secretariat than those in which they previously served, the situation is different. One of these cases falls under Article 38 of the General Standards and Staff Rule 109.5(j), and in the other case Staff Rule 109.5(b)(iii) was applied. That the letter of November 1, 1973, from the Director of Personnel shows that he did everything possible to offer the Complainant a post, and by so doing complied with Staff Rule 109.5(h). If a vacant post that the Complainant could have filled had been found, it would have been offered him in accordance with Staff Rule 109.5(h) and (j), and if a post of the same general occupational type as that held by Mr. Mendoza had been found to be held by another staff member whom the Complainant had the right to displace, Staff Rule 109.5(b)(iii), which governs displacements, would have been applied. That, in conclusion, the complaint should be dismissed in all its parts. IV. On April 1, 1974, in accordance with Article 13.3 of the Rules of Procedure of the Tribunal, the Complainant presented his reply to the Secretary General's answer and to the briefs presented by María A. Odekerken, Santiago Bartucevic, and Humberto M. Valdés, and in this regard stated: That the decision of the Secretary General to terminate his services was taken after July 1, 1973. It could not have been taken before that date, since the Grievance Committee and the Advisory Committee on Reconsideration had not presented their reports and did not do so until January 18, 1974. In support of his statement he cites the memorandum of May 15, 1973, from the Secretary General to the Staff Committee, a copy of which he attaches as an appendix. That harmonious interpretation of the rules is only appropriate when there is a contradiction between two rules in the same body of law, not when the contradiction is between two rules of different date and different rank, in which case the more recent and higher in rank prevails. That with respect to the restrictive interpretation that should be given to Staff Rule 109.5(b)(iii), there is not only the practice that has been followed in the General Secretariat in cases similar to his own but also the recommendations in the report of the working group set up by the Committee on Program and Budget of the Permanent Council to study the reports of the General Secretariat on the reduction in force resulting from the plan to stabilize the regular budget for 1972/74, which also contains relevant observations and recommendations. That the expression "other conditions being equal" means that the person concerned must not be less qualified for the post than the person who holds it. That with respect to the case in which the Secretariat says that Staff Rule 109.5(j) was applied, the Complainant maintains that Staff Rule 109.5(j) only applies to staff members whose appointments have been terminated, i.e., it deals with new appointments of former staff members. In the case cited, a reasonable offer was made to the staff member before he was terminated for reduction in force, in accordance with Staff Rule 109.5(h). That with respect to the Respondent's assertions that the Advisory Committee on Reduction in Force determined that one post was of the same occupational type as another, the Committee is not empowered to make such determinations. Furthermore, its findings disagree with those of the Personnel Office, which described another similar post differently. That when the Director of Personnel reviewed the posts he says he reviewed in order to offer one to the Complainant, he included many that are not of the same occupational type as the one he held. That there is a discrepancy between the English and the Spanish texts of Staff Rule 109.5(b)(iii). The more consistent text is the English, since it refers to "equivalent qualifications" whereas the Spanish uses both "requisitos equivalentes" and "los mismos [the same] requisitos," which would be contradictory. Taking the English text as the more appropriate and consistent, the Complainant concludes that he is qualified to hold any of the five posts he has mentioned since all of them, including the one he held, are of the same general occupational type and require equivalent qualifications for effective performance. That the Respondent's arguments challenging his petition that any indemnity under Transitory Provision 2 of the Statute of the Tribunal be set at the equivalent of more than two years' salary are baseless. In this connection, he cites and quotes certain passages written by the Secretary General on the financial situation of staff members and some extracts from documents issued during the recent Washington meeting of the Federation of International Civil Servants Associations (FICSA). That with respect to the statements of the staff members who had asked to intervene as third parties, nobody informed him, when his post was abolished, whether the posts he had previously held were vacant or occupied or, in the latter case, whether the incumbents had less or more "priority" than he had. At the end of his reply, the Complainant comments on the amount of advance notice of termination he was given, which occurred after he had submitted his complaint. Finally he repeats the petitions made in his original complaint and adds that he should receive salary for the 60 days after he was notified of his termination following the Secretary General's decision upon receiving the report of the Advisory Committee on Reconsideration. V. On April 18, 1974, the representative of the Respondent presented his response to the Complainant's reply, and in this regard stated: That the Secretary General's decision was adopted before July 1, 1973. That with respect to the harmonious interpretation of legal regulations, the Complainant nowhere and at no time specifies the contradictions or conflicts that he says exist between articles 17(b) and 51(b) of the General Standards, on the one hand, and Staff Rule 109.5(b)(iii), on the other. Far from there being any conflict between these provisions, the Staff Rule complements and facilitates the application of the General Standards by establishing the conditions the Standards provide for in the abstract. That with respect to the restrictive interpretation of Staff Rule 109.5(b)(iii), he repeats that the precedents cited by the Complainant are not applicable to his case since they are based on regulations that differ from those in force in the OAS General Secretariat. That with respect to the interpretation of the phrase "other conditions being equal," the Complainant has failed to say that among the conditions that must be equal is that the posts be "of the same general occupational type." This circumstance does not exist in the present case for the posts mentioned by the Complainant. That in the case of Carr Donald, cited by the Complainant, Staff Rule 109.5(j), which is very broad in scope, was applied. It says that when a reduction in force takes place a member of the international career service has preference for any suitable vacant post whether or not the termination has taken place. That there is no doubt that the powers of the Advisory Committee on Reduction in Force are purely advisory, but once the Secretary General accepts and endorses the advice, it becomes an administrative decision. That as to the review of posts made by the Director of Personnel, it has been proved that everything possible was done to offer the Complainant a post before his services were terminated, but this proved to be impossible under the pertinent regulations. Although the posts that could have been offered him may have been of the same general occupational type as the one he held, he did not have the necessary qualifications for them. That with respect to the classification of posts made by the Complainant, not only are those to which he aspires not of the same general occupational type as the one he held but also he lacks the technical knowledge in personnel matters to evaluate and classify them. That the indemnity the Complainant seeks would not be possible, since this is in no way one of the exceptional cases referred to in Transitory Provision 2 of the Statute of the Tribunal. That with respect to the 60 days' advance notice that was given to the Complainant, Mr. Mendoza confuses a "final decision" for the purposes of an appeal to the Tribunal with the decision taken by the Secretary General after hearing the Grievance Committee, which served as the basis for the notice given him 60 days before he was separated from his post. Furthermore, in the United Nations, whose administrative procedures and regulations are the basis of those of the OAS General Secretariat, the implementation of decisions that are challenged or appealed and the consequences of those decisions are not suspended. VI. On May 6, 1974, the representative of the Complainant requested that, in accordance with Article 14.1 of the Rules of Procedure of the Tribunal, the General Secretariat be ordered to send to the Secretary of the Tribunal the complete files, including the recorded tapes, submitted by the Complainant to the Grievance Committee and the Advisory Committee on Reconsideration. He also requested, in exercise of his principal's right to state precisely which documents he wished to have exhibited to the Tribunal, that the General Secretariat deliver to the Tribunal the originals or certified copies of certain documents, which he listed. Finally, he requested the Tribunal to order the examination of the proposed witnesses Sheridan Besosa, Carr Donald, Víctor Silva, Roberto Leobons, and L. Raymond McDaniel at the same hearing as and immediately before the oral proceedings. On May 30, 1974, the President of the Tribunal, in accordance with Article 14.1 of the Rules of Procedure, decided to request the General Secretariat to send the Secretary of the Tribunal the complete files submitted by the Complainant to the Grievance Committee and to the Advisory Committee on Reconsideration so that the Tribunal might see them before issuing its judgment. On June 21, 1974, the Respondent complied with the order. VII. On July 24, 1974, pursuant to Article 14.2 of the Rules of Procedure, the present case was placed on the list of matters pending consideration. Once the President had set the opening date for the session corresponding to the fourth quarter of the year, the pertinent steps were taken for the formation of the Tribunal. In accordance with Article 8.2 of the Rules of Procedure, Alejandro Tinoco disqualified himself from hearing the case. After the self-disqualification was considered in accordance with the pertinent regulations, it was rejected, and the Tribunal was therefore composed of its three principal members. It met as scheduled, deliberated on the case sub judice, and decided, in accordance with Article 17 of the Rules of Procedure, to take the testimony of the witnesses offered by the Complainant on November 14 at 10:00 a.m., and to hold the oral proceedings requested by both parties at 4:00 p.m. on the same day. The hearing ordered for the taking of testimony began on the date and at the time indicated. It continued into the afternoon of the same day and ended on the morning of the following day, as the record shows. On November 15, in the morning, the oral proceedings were held, as the record shows. The Tribunal then decided that further evidence was not necessary in accordance with 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. In accordance with Article 25, the Tribunal designated Mozart Víctor Russomano to draft the judgment. Having examined the proceedings, the Tribunal now CONSIDERS: 1. That it is competent to hear the present complaint, pursuant to Article II of its Statute. 2. The complaint is based on the principle, in itself a healthy one, that the personnel management system of the Organization of American States provides for preference to be given to more senior staff members in the event that posts or activities have to be abolished. This theoretical principle, for which there are precedents in labor legislation and in the administrative law of a number of countries, has as its logical basis the fact that a longer-serving staff member is more useful to the Organization, because of his experience, and has more acquired rights. There is also the presumption that seniority in employment reflects the excellence of the services provided by the employee. The provision calling for preference based on seniority is therefore not a legal novelty or an advantage granted for the sole benefit of the employee. On the contrary, it is a measure that, on the one hand, shields the employee against discretionary protectionism on the part of the employer by taking his years of service into account and, on the other hand, ensures the optimum functioning of the organization by retaining in service the most senior employees, who presumably are also the most capable. 3. The personnel system of the General Secretariat of the Organization of American States was structured to ensure a balance between the interests of the administration and the individual rights of the staff members. The preference provision is therefore an important rule in cases of reduction in force. Where the General Standards to Govern the Operations of the General Secretariat deal with separation from service as a result of a reduction in force, in Article 51(b), they specifically mention articles 17 and 38. These provisions are in turn linked to Staff Rule 109.5(b)(iii), which states:
4. The Complainant first of all posits the existence of a conflict between the General Standards, issued at a later time, and the earlier Staff Rules and concludes that the later rule has repealed the earlier one. Even though there was no express partial repeal of Staff Rule 109.5(b)(iii), the Complainant argues that it was implicitly repealed. 5. Such a repeal, which is possible under the theory of the validity of legal standards, is not found in the case sub judice. Staff Rule 109.5(b)(iii) establishes that if posts are abolished the competition will be between staff members in posts "of the same general occupational type and for which equivalent qualifications are required." In other words, the preference provision, in the Staff Rules system, operates by means of a comparison between staff members holding posts of the same grade that have identical or equivalent functions. This interpretation follows from the examples given in the Rule to illustrate the principle. Where the General Standards refer to this matter, they use different terms but directly adopt the principle that the requirement of "other conditions being equal" is essential both for the competition between permanent staff members and other staff members to fill vacancies (Article 38) and for the specific case of the present complaint, i.e., for remaining in service in the event of reduction in force [Article 17(b)]. As the Complainant has argued, the General Standards, which are the later rules, establish by their very nature the generic principle that in all its modes of application the preference rule presupposes equality of other conditions between staff members in order for the more senior to be favored. The abstract rule contained in Article 17(b) does not conflict with the specific provisions of Staff Rule 109.5(b)(iii). This principle, in accordance with its regulatory juridical nature, develops, in great detail the practical application of the generic principle. From the foregoing, it is concluded that this appeal must be assessed and decided on the basis of the joint and harmonious application of Article 17(b) of the General Standards and Staff Rule 109.5(b)(iii). 6. Article 17(b) of the General Standards covers two separate hypotheses, both of which, despite their difference, fall under the provision for preference based on seniority when a reduction in force occurs. In the first case, the matter is one of filling vacant posts. In the second, the rule provides that the preference for continuing in service gives the senior staff member the right to displace another, less senior staff member. In both hypotheses, the requirements for the exercise of the right of preference are the same. However, in applying the rules to a particular event, the interpreter may attribute a different scope to the same requirement. Thus, it is possible ad argumentum to interpret Article 17(b) broadly in dealing with appointments to vacant posts, in the sense that the staff member may compete for a vacant post of the same or a lower grade. In this case, even where there is competition among several staff members, the broad interpretation (more favorable to the employee) may be admissible because there is no displacement of another staff member. Conversely, when the preference is used to displace another staff member who was not affected by the reduction in force, the requirement of "other conditions being equal" must be interpreted restrictively, so that the competition is not among all the holders of posts of the same grade but only among those of the same general occupational type for which the qualifications are the same and the functions are identical or at least very similar. Otherwise, if the argument were adopted that a more senior staff member may displace a less senior in the same or lower grade in all cases of reduction in force, there could be a progressive and descending displacement that would ultimately affect the staff members in lower grades, with inevitable injury, in all or almost all cases, to the humblest. On the other hand, the preference in favor of the more senior staff member is justified to the extent that the administration may choose between staff members of the same category and grade who perform identical or very similar functions. If this were not so, that provision would become in practice an odious instrument of instability and especially a cause of resentment and conflicts that would destroy the desirable solidarity of the permanent staff of the Organization. 7. To sum up, then, it follows from Article 17(b) of the General Standards, read together with Article 51(b) and with Staff Rule 109.5(b)(iii), that the Complainant's right to displace another staff member who would not have been affected by the reduction in force and to occupy his post presupposes the existence of "equal conditions" between the two, that is, that both hold posts of the same general occupational type for which the same qualifications are required. This means that in a reduction in force the operation of preference for the most senior staff member presupposes that the staff members involved are in the same grade, hold posts of the same general occupational type, and also perform identical, related, or very similar functions. Consequently, the present complaint must be assessed with an eye to the job descriptions of the Complainant and of the staff members mentioned as being in the same grade and holding posts of the same occupational type. 8. Both the Complainant and the five staff members over whom he believes he has preference are classified as P-1, but there is a great difference between the posts and duties of those staff members and the post and duties of the Complainant. This belief arises from an examination of the evidence and in particular from a comparison of the job descriptions presented by the Complainant. The Complainant was an assistant, grade P-1, in the Department of Information and Public Affairs and performed the duties he mentions. A detailed examination of his duties shows that they were specifically connected with the "Carta Semanal de la OEA" and that he was required to maintain the subscriber and distribution lists and also to provide information about the Alliance for Progress and to perform other functions concerned with the production and distribution of the "Carta Semanal." In addition to these activities, it was the Complainant's duty to maintain relations with the internal organs of the General Secretariat, particularly the Office of Publications, and with various national and international agencies, but always limited to the distribution of the "Carta Semanal." Other important work of the Complainant had to do with attention to the news materials from the Organization teletype and from newspapers in Latin America and the United States for the preparation of the publication "Noticias y Comentarios Periodísticos." These, in summary, are the activities performed by the Complainant as assistant, grade P-1, in the Department of Information and Public Affairs. The other five staff members work elsewhere in the General Secretariat. The fact that their services are rendered in different administrative areas of the General Secretariat is clearly irrelevant. But it must be emphasized that the Complainant's post and those of these staff members differed not only in their titles and classifications but also in their functions, as will now be shown. 9. The staff members Manuel Díaz, M. Euceda Santos, and Humberto M. Valdés hold identical posts with identical functions, as the Complainant shows by furnishing only the job description of Mr. Díaz. They all work in the Secretariat for Management and perform general administrative functions. In general and briefly, their duties include administrative and financial advice; the preparation of the preliminary draft Plan of Operations of the office, in accordance with instructions from their supervisors; general reports, in particular the "Progress Report"; the coordination of technical assistance programs; the recording and control of funds allocated to OAS projects in the field, when this responsibility has been assigned to the office; the preparation of accounts; and finally, among other duties, that of replacing the representative and the Director during temporary absences, when so designated. The staff member María Antonieta Odekerken holds a post that is totally different from the others, as a legal researcher in the Department of Legal Affairs. According to the information provided by the Complainant, her duties are, briefly, to do research for the preparation of studies and documents on various technical and legal questions; to advise on the preparation of publications and reports of the Office of the Director; to coordinate work for the preparation of special studies by specialists in the Department in accordance with instructions from the Department Director; to collaborate in the preparation of Department documents for inter-American conferences as they relate to matters within the competence of the Department; to draft letters and memoranda for the Director of the Department; to take and transcribe dictation in Spanish and English; and to act, on occasion, in various positions as a member of the secretariat of inter-American conference and meetings held at the headquarters of the Organization or in the member countries. Finally, Santiago Bartucevic provides services related to fellowship administration in the Office of Fellowships and Training. He carries out research on the activities of former fellows of the Organization, in the manner indicated in his job description; reviews the files of fellows, especially to obtain information for the register of former fellows, and takes part in preparing the Directory of Former Fellows; works with the Chief of the Former Fellows Unit on the Plan of Operations of the Unit and with the task force responsible for the application of the computer system in the Fellowship Program; takes part in efforts to promote associations of former fellows in the member states, and so on. 10. It seems unnecessary to go any further. The comparison of the duties actually performed by the Complainant and those of the five staff members mentioned reveals the marked contrast between them. The testimony has shown that the Complainant is a competent staff member of recognized professional ability. It was even emphasized on that occasion that he is very well educated, more so than some of the other five staff members. But the applicability in each specific case of the preference based on seniority in a reduction in force is not assessed by comparing the potential ability of the Complainant with that of the other staff members. It may happen that a staff member separated from the service is more senior and more capable and competent than others; but the criterion adopted for keeping him in the service with a right to displace another staff member is not solely the subjective one of technical ability, which must also be evaluated concretely, but more especially the double, objective one of seniority in the service and sameness or similarity of the functions inherent in each post. For example, the right of displacement in consequence of the preference provision could be upheld as among the staff members Manuel Díaz, M. Euceda Santos, and Humberto Valdés, if one of them were separated by reduction in force despite having greater seniority in the service than the others, since their posts and functions are absolutely identical, according to the Complainant's information, but this is inadmissible when the staff members' functions are essentially different. Otherwise, it could happen, ad terrorem, that the Complainant's contention, if carried to an extreme, would require this Tribunal, through successive similar complaints, to review the administrative classification of all the staff members of the General Secretariat in the light of their personal and technical qualifications, which, is really outside of its specific competence. Contrary to the Complainant's contention, the evidence does not show that his separation has been the result of a discriminatory act of the Secretary General. Rather, an assessment of the testimony shows that his separation was the result of a mere reduction in force, in other words, without prejudice to his satisfactory performance of his duties and notwithstanding the fact that he was a competent staff member who fulfilled his obligations. Therefore, this judgment does not affect his right to possible re-employment as provided for in Staff Rule 109.5(j), which states:
By virtue of the foregoing, by the simultaneous application of articles 51(b) and 17(b) of the General Standards, read together with Staff Rule 109.5(b)(iii), and bearing in mind the difference between the functions performed by the Complainant and those of the other five staff members over whom he considers himself to have preference, the Tribunal unanimously RESOLVES: To dismiss the present complaint and consequently to acquit the Respondent, with no effect on the rights of the third parties summoned.
Let notification be given. Washington, D.C., November 21, 1974
Mozart Víctor Russomano, Esq. / President Juan Bautista Climent Beltrán, Esq. / Vice President Alejandro Tinoco, Esq. / Judge Jorge L. Zelaya, Esq. / Secretary OEA/Ser.R TRIBAD/21 21 November 1974 Original: Spanish |
