Judgment No. 92

Roberto Monge M. 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 Coqueijo Costa, Judge,

Has before it for judgment the proceedings on the complaint filed by Roberto Monge Madriz against the Secretary General of the Organization of American States.

The Complainant was represented by Ovidio Martínez, attorney, and the Secretary General by William Berenson, attorney of the Secretariat for Legal Affairs, all in conformity with Article 22 of the Rules of Procedure of the Administrative Tribunal.

WHEREAS:

    I. On June 21, 1985, the attorney for Mr. Monge filed a complaint against the Secretary General, as authorized under Article II of the Statute of the Tribunal, for his confirmation of the decision by the Assistant Secretary General to terminate Mr. Monge's services in accordance with Staff Rule 111.1.

The attorney for the Complainant referred first to the competence of the Tribunal to hear the present case and to its admissibility. After complying with the requirements as to the personal and official status of the Complainant, he went on to explain the facts on which the complaint is based, and in this respect stated, inter alia:

That the Complainant entered the General Secretariat on January 1, 1971, and continued in service until July 29, 1984. During that period, he held the post of messenger-chauffeur in the Office of the General Secretariat of the OAS in El Salvador; all his performance evaluations were good, and no disciplinary measures were applied to him, other than termination of his services.

That between December 5 and 9, 1983, a fact-finding mission consisting of the Chief of Geographic Unit I of OCAOFS and the Chief of the Division of Technical Services and Support of the Department of Human Resources went to El Salvador to examine the operations of the Office of the General Secretariat of the OAS and the situation of its personnel; to investigate the complaint addressed to the Staff Association by telex of November 29, 1983; to investigate information received from the Permanent Mission of El Salvador; and then to make appropriate recommendations.

That on December 14, the fact-finding mission signed a report stating, inter alia:

That the telex sent to the Staff Association was prepared by Guillermo R. Pino, and Zoila F. González and the Complainant made minor corrections and additions to it.

That Mr. Pino, a high-level professional employee, got in touch with Gladys Torres Paz de Abarca, Assistant Secretary of the Ministry for Planning and Coordination of Economic Development, on the basis of a friendship dating from their college years; that he explained to her the problems in the Office; and that she asked to see the other members of the staff. Mr. Pino denied having made those contacts and said that he had paid a visit to Mrs. Abarca.

That Mr. Monge persistently denied that he had made or participated in those contacts, was markedly uncooperative, and demonstrated a simply inexplicable capacity for concealing the truth, and it was only when Mr. Pino confirmed in his presence that Mr. Monge had indeed gone on the visit to Mrs. Abarca that Mr. Monge admitted his participation.

That the report of the fact-finding mission concludes that Mr. Pino was directly responsible for the unfounded accusations against the Director of the Office, because he had initiated the contact with the Government and had also told the other signers of the telex that Mr. Castro Castillo had threatened to hold him responsible for any attack on his integrity. The report concluded that Mr. Pino was responsible for having taken the other employees to the interview and had drafted most of the telex sent to the Association, acting in bad faith in all these matters, with the object of discrediting Mr. Castro Castillo and creating conditions that would make it impossible for him to continue to work in El Salvador. With regard to Mr. Monge, the report concluded that he also played a decisive role in the dealings with the Government and in the preparation of the telex, and obstructed the investigation.

That the report recommended that Mr. Pino be separated from service in accordance with Article 52(f) of the General Standards to Govern the Operations of the General Secretariat or else be suspended from duty for 30 days under Staff Rule 111.1(b)(iv) and transferred to another post. The report also recommended that Mr. Monge's services be terminated because of his record of difficulties and his behavior during the investigation.

That the Complainant believes that these recommendations are contradictory and not based on objective and fair criteria, since a lesser sanction was recommended for Mr. Pino without taking into account that the gravity of his misconduct was greater, and that he was a professional employee with authority over Mr. Monge, whose post is classified at the lowest level of the general services category.

That on January 5, 1984, the Director of OCAOFS recommended that the Secretary General "summarily dismiss Mr. Pino and Mr. Monge" in accordance with Staff Rule 110.5.

That on January 9, 1984, the Director of the Department of Human Resources sent a cable to Mr. Monge and Mr. Pino informing them that the Secretary General had initiated proceedings for summary dismissal, and on January 17, 1984, he sent them another cable accusing them of serious misconduct, in accordance with Article 31 of the General Standards, because they had solicited the influence of government representatives and had made false statements during the investigation.

That on February 9, 1984, the hearing officer recommended the summary dismissal of Mr. Pino on the ground of serious misconduct and the termination of the services of Mr. Monge under Article 52(f) of the General Standards or his suspension from duty for 30 days, which demonstrates that he did not consider the conduct imputed to Mr. Monge to be serious enough to violate Article 31 of the General Standards. The Secretary General did not take any of the measures recommended.

That on April 16, 1984, more than two months after the Secretary General received the report of the hearing officer, the Director of the Department of Human Resources sent a memorandum to the Acting Secretary General in which he said that he had arrived at the conclusion that, given the time that had elapsed, the summary dismissal recommended in the case of Mr. Pino was not appropriate, and that he did not consider Article 52(f) of the General Standards to be applicable to Mr. Monge's case. He also said that it was not necessary to conduct a new investigation, since the record of the case contained the information needed for the Disciplinary Committee to make its recommendations.

That on April 19, 1984, the Acting Secretary General accepted that recommendation and convoked the Joint Disciplinary Committee in accordance with Staff Rule 111.2, and Mr. Monge was duly notified.

That, as a question of fact, this decision had the following effects: (1) the summary-dismissal proceedings initiated against Messrs. Pino and Monge under Staff Rule 110.5 were considered terminated; (2) disciplinary proceedings were initiated under Staff Rule 111.3; (3) the procedure established in that Rule was changed and a procedure designed to hamper Mr. Monge's right to self-defense was imposed on the Disciplinary Committee, and (4) the same Staff Rule was violated by limiting the functions of the Committee to analysis of the history of the summary-dismissal procedure.

That on May 11, 1984, the Chairman of the Disciplinary Committee sent the report to the Director of the Department of Human Resources. The report said that the Committee had considered it unnecessary to hear from the hearing officer or from Messrs. Pino and Monge because the evidence was sufficient. That decision violated Staff Rule 111.3(b).

That the Committee's interviews with several employees of the General Secretariat are further evidence of the irregularities of the procedure, since all those interviewed were Secretariat staff members who had participated in the case as fact-finders, accusers, or advisers.

That the Disciplinary Committee recommended that Mr. Pino be suspended for 30 days without pay and that Mr. Monge be dismissed, although it added that an agreement with him, in the spirit of Article 52(f) of the General Standards to Govern the Operations of the General Secretariat, would be desirable.

That these conclusions are contradictory and discriminate against Mr. Monge, since the Committee stated that he and Mr. Pino were guilty of the same acts and had committed the same violations of the applicable regulations, yet it recommended a more lenient measure in the case of the person having the higher rank.

That the Assistant Secretary General confined himself to accepting the recommendations to suspend Mr. Pino in accordance with Staff Rule 111.1(b)(iv) and to terminate Mr. Monge's services under Staff Rule 111.1(b)(v).

That on June 5, 1984, Mr. Monge requested reconsideration in accordance with Staff Rule 112.2, and the Joint Advisory Committee on Reconsideration presented its final report on October 12, 1984. The report stated that Mr. Pino had withdrawn his request for reconsideration and accepted the disciplinary measure that had been applied to him. This limited Mr. Monge's possibilities of defending himself, since Mr. Pino' situation was protected as res judicata.

That the conclusions of the Reconsideration Committee prove that Mr. Pino is the responsible party and that Mr. Monge's role was secondary and subordinate to the initiatives and leadership of Mr. Pino, who, in his double capacity as a fellow countryman and a superior in rank, found no difficulty in recruiting the other employees. The Committee also concluded that summary dismissal would have been appropriate in the case of Mr. Pino, that it would have been recommended if his request for reconsideration had not been withdrawn, and that it would not be appropriate to penalize Mr. Monge more severely than Mr. Pino. Consequently, the Committee recommended that Mr. Monge be suspended for 25 days and placed on probation for a period of one year.

That on February 25, 1985, the Secretary General issued a decision confirming the decision to terminate Mr. Monge's services, and the present complaint challenges that decision.

That the complaint is based on Article II.1, 2, and 3 and Article VI.1(a) and 2 of the Statute of the Administrative Tribunal; on articles 49, 50, 51, 57, 58, 60, and 117(a), (b), and c of the General Standards; on Staff Rule 110.4(d) and Chapters XI and XII of the Staff Rules; on the general legal principle of audi alteram partem, relative to administrative due process; and on the general principle of law regarding abuse of power or authority.

    II. The attorney for the Secretary General answered the complaint in due time and proper form and stated, inter alia:

That most of the Complainant's performance evaluations were "satisfactory," not "good"; disciplinary proceedings were initiated against him in 1977, but, on the recommendation of the Disciplinary Committee that considered his case, no sanction was applied to him.

That the former Secretary General was unable to take any measure on the recommendations of the hearing officer before leaving office.

That the memorandum of April 16, 1984, was written by the Acting Secretary General and not, as the Complainant alleges, by the Director of the Department of Human Resources, and the latter never recommended that the Disciplinary Committee be convoked. In that memorandum the Acting Secretary General merely suggested that there was no need for a new investigation, that the record shows that the Committee took this to be just a recommendation, and that it obtained additional evidence when it deemed it advisable. The Acting Secretary General did not violate the general principle of due process in referring the case to the Disciplinary Committee, because several of the alternative measures recommended by the hearing officer, such as suspension from duty, required a prior recommendation from the Disciplinary Committee in order to be applied.

That the report of the Reconsideration Committee erred in failing to take into account the extenuating circumstances present in Mr. Pino's case, and consequently the Acting Secretary General exercised his prerogative to reject its recommendations.

That the complaint does not challenge the facts related to the Complainant's violation of Article 31, his false statements, and his efforts to hamper the investigation carried out in November 1983 by Messrs. Luis Gómez and José Félix Palma. The Respondent therefore confines himself to incorporating into his answer by reference the facts contained in the reports of Messrs. Palma and Gómez, the investigators, and Luis Lizondo, the hearing officer.

That he acknowledges the applicability of the sections of the Statute of the Tribunal, the General Standards, and the Staff Rules cited by the Complainant and states that they were strictly complied with in the present case. But he does not acknowledge the applicability of Article 117 of the General Standards.

That the record shows that the decision to dismiss the Complainant was based on the recommendation of the Disciplinary Committee and on the factual determination that, besides violating Article 31 of the General Standards and deliberately making false statements, the Complainant obstructed the investigation, was unworthy of trust, and could no longer be useful to the Organization. The record shows that the decision to be lenient with Mr. Pino was also based on the conclusions of the Disciplinary Committee, which were adopted in their entirety by the Acting Secretary General.

That he rejects the applicability of the principle of audi altarem partem, because it was not violated. The Secretary General gave the Complainant the fullest opportunity to defend himself against the charges and to respond to the hearing official concerning the report of the fact-finders.

That he also rejects the applicability of the general principle of law on abuse of power or authority, because no such abuse took place. The decision to dismiss the Complainant was taken on the basis of a review of the documentation by the hearing officer and the recommendations of the Disciplinary Committee. Similarly, the Secretary General decided to confirm the measure taken by the Acting Secretary General only after consultation with the Reconsideration Committee and after reviewing the record of the case. The Secretary General determined on the basis of the record that the Complainant's misconduct was serious enough to warrant his dismissal, and that his having obstructed the investigation after the events in question left little room for leniency.

That, contrary to the Complainant's allegation, the Disciplinary Committee did take his oral defense into account and did not violate procedures. The Complainant was fully informed of the accusations against him by telexes sent by the Director of the Department of Human Resources on January 17, 1983, and April 19, 1984. The Director also sent him, on the 27th of that month, another telex giving him the names of the members of the Disciplinary Committee and informing him of the date of their first meeting. At the summary-dismissal hearing he defended himself and reviewed the testimony presented against him on that occasion.

That in accordance with the principles of administrative law, the due-process requirement of giving the defendant a hearing does not require that the person who makes the decisions based on the hearing be physically present to hear evidence. Nevertheless, normal procedure does require certain procedural mechanisms to ensure that a well-informed conclusion is reached on the matter. By reviewing tape recordings of the summary-dismissal proceedings at which the Complainant presented his defense, the Disciplinary Committee established an adequate mechanism for making sure that it arrived at a well-informed conclusion on the case, thereby meeting the requirements of due process and giving the Complainant an opportunity to be heard in accordance with the rules.

That the recommendations of the Disciplinary Committee were not arbitrary; they were based on a review of the facts and the mitigating circumstances in each case. Its report clearly reveals that it recommended dismissal because of Mr. Monge's intransigence and his refusal to cooperate with the investigators; while Mr. Pino admitted his misconduct early in the investigation, the Complainant continued to deny his involvement throughout the investigation. The Committee therefore considered that his misconduct made him "an employee who cannot be trusted in the office" and his continuation as an employee of the office became "undesirable."

That, although the Committee recommended the Complainant's dismissal, it determined that Mr. Pino's employment record away from El Salvador and his attitude during the investigation indicated that he could still be useful to the Organization at a post in a different country, and it therefore recommended the maximum applicable suspension and a transfer.

That dismissal is not an excessive sanction, given the misconduct of the Complainant. To the extent that the Acting Secretary General's decision to dismiss the Complainant was based on the unanimous finding that he was guilty of serious misconduct punishable by dismissal in accordance with Staff Rules 111.1(b) and 110.5, that decision falls properly within his powers and does not constitute abuse of authority or the imposition of punishment that is unreasonable and disproportionate to the misconduct.

That the Secretary General enjoys broad discretionary authority in applying the disciplinary measures provided for in the Staff Rules, so long as he acts only after receiving a recommendation from a Disciplinary Committee or a hearing officer, as appropriate, and from the director of the department or office concerned. Neither the Staff Rules nor the General Standards set specific guidelines for the exercise of such discretionary authority, and, absent such guidelines, the general principles of law are relevant in pronouncing judgment. In common law, different punishment for the same act is not necessarily unfair or prohibited.

That appellate courts in the United States have repeatedly upheld disparate sentences imposed by lower courts on co-defendants found guilty of the same crimes, when required by the circumstances. One of the many individual factors a judge may take into account in sentencing is the defendant's willingness to cooperate in an investigation, and that was a factor that the Disciplinary Committee and the Acting Secretary General took into account in determining that the appropriate sanction in this case was dismissal. The Acting Secretary General also took into account other extenuating factors, such as Mr. Pino's unblemished record for more than twenty years prior to his transfer to El Salvador and the fact that his services could still be useful to the Organization.

That the Secretary General does not object to the admittance of the documents and records that the Complainant wishes to introduce as evidence, or to hearing the witnesses he proposes, other than the Assistant Secretary General, provided that such evidence is consistent with generally accepted rules on evidence and with the Rules of Procedure of the Tribunal.

That for the foregoing reasons he specifically prays that the present complaint be dismissed in all its parts and that all the indemnities requested by the Complainant be denied.

    III. The attorney for the Complainant presented his reply to the answer of the Secretary General in due time and proper form and, in this regard, stated:

That the applicability of the principle of due process is accepted without reservation by all Administrative Tribunals of international organizations, and particularly by the Administrative Tribunal of the OAS; suffice it to mention Judgment No. 53 (Cuenca), in which the Tribunal declared that, since the employee was not given an opportunity to refute the accusations against him, the principle of administrative due process had been violated and his rights under Chapter XI of the Staff Rules had been violated.

That, contrary to the assertions of the representative of the Secretary General, there is documentary proof of the facts alleged in the present case, especially with respect to the violation of Staff Rule 111.3, on the procedures of the Disciplinary Committee. The important thing is that the Committee accepted what the Acting Secretary General told it in his memorandum of April 16, 1984, and did not permit Mr. Monge to exercise the right to defend himself recognized in that Rule. A committee designated by the Secretary General to investigate certain facts, or a hearing officer, cannot supplant him in his functions and duties, which have their legal base in the General Standards and in Chapter XI of the Staff Rules.

That Mr. Monge, Mrs. González, and Mr. Carmona were taken to the interview without having the slightest idea of its significance and did not go with the object of "soliciting the influence or support of the Assistant Secretary for Planning regarding problems of the Office." Their purpose was rather to accompany Mr. Pino, their supervisor, who had ordered them to go to the interview at the request of the Assistant Secretary for Planning. Neither the Palma-Gómez mission nor the hearing officer suggested that either Mrs. González or Mr. Carmona had violated Article 31 of the General Standards or had broken any other administrative rule, although the acts in which they had participated were the same as those in which Roberto Monge had participated.

That the report of the hearing officer contains no reference to the act or acts imputed to Mr. Monge in relation to the specific accusation of having given false testimony. The conclusions show that Mr. Monge did not make any false statement about the visit to the Assistant Secretary for Planning; rather, it was he who cooperated with the hearing officer and told the truth about the second visit, which Mr. Pino had denied. The report contains not a single fact that would prove that the Complainant had made a false statement.

That it is regrettable that an effort is being made to confuse the Tribunal by equating an accusation with the imposition of a disciplinary sanction.

That the memorandum of April 16, 1984, which was recognized in the answer brief as having been issued by the Acting Secretary General, constitutes documentary evidence that the summary proceedings initiated against Mr. Monge were terminated before their conclusion and that the Secretary General ordered the regular disciplinary proceedings provided for in Chapter XI of the Staff Rules. It has been established that the Committee was convoked and formed, but that it did not comply with the provisions of that chapter.

That in his answer brief, the representative of the Secretary General cites as legal bases a long series of laws, jurisprudence, and opinions of authors that are not applicable to the present case, since the Administrative Tribunal has stated on several occasions that the laws of the member states are not applicable within the context of the OAS. The present complaint pertains to the imposition of disciplinary measures in an international organization, not to sanctions or punishment within the sphere of ordinary penal law.

    IV. The attorney for the Secretary General presented his response to the Complainant's reply in due time and proper form, and stated:

That he repeats everything said in his answer brief.

That the Secretary General complied with the principles of due process by permitting the Complainant to defend himself to a hearing officer. Moreover, the Secretary General paid his travel and other expenses to enable him to go to the hearing in Washington, D.C., where he had an opportunity to examine the accusations in considerable detail and present his defense. The Acting Secretary General's decision to obtain a "second opinion" from a Disciplinary Committee was designed to ensure that his final decision would be based on the fullest possible information. This cannot be construed as having violated the Complainant's rights. Even though the Complainant was fully informed of the date of the first meeting of the Disciplinary Committee and of the accusations, he failed to come before the Committee and did not make any additional statement or observation.

That the Complainant had an opportunity to be heard, which makes this case different from that of Cuenca v. Secretary General of the OAS, Judgment No. 53 (1980).

That the Complainant intentionally violated Article 31 of the General Standards, contrary to his claim that he did not do so intentionally but was "compelled by the authority that Mr. Pino had over him." This defense is not credible for the following reasons: (1) The record shows that in 1977, the then Director of the Office in El Salvador recommended a disciplinary measure against the Complainant on the ground of insubordination, as he had refused to serve as the personal chauffeur and messenger for the Director in non-OAS matters. The record also shows that the Complainant stated in his defense that he had refused because he considered such services improper, that the Disciplinary Committee that studied his case agreed with him, and that as a result the Secretary General did not apply any sanction. The record leaves no room for doubt that, in that instance, the Complainant showed himself quite capable of resisting his supervisor's authority when he so desired, and therefore his statement that Mr. Pino compelled him to go to the office of the Assistant Secretary for Planning against his will is simply unbelievable. (2) The facts show that the Complainant's statement that he visited this official's office without having any idea of the significance of the visit is not true. At that time, the Complainant and Mr. Pino had already met with Rafael Urquía, a former Assistant Secretary General, to discuss supposed problems involving Alberto Castro Castillo, the new Director of the National Office, and that they had also telephoned Ronald Scheman at headquarters and expressed similar concerns to him. The other employees of the Office did not participate in these acts and perhaps were not aware of the significance of their visit to the Assistant Secretary. (3) The Complainant cannot suggest in good faith that he, as a mere messenger and chauffeur, did not know his conduct was improper. In 1982, he and Mr. Pino signed a notarized statement that was sent to headquarters, in which he undertook to refrain from making complaints and comments that would harm the image of the Office. His meeting with the Assistant Secretary was a clear violation of that commitment.

That the Complainant's allegation that other employees were not accused and punished for violation of Article 31 of the General Standards is untrue, since the disciplinary measure of "oral admonition" was applied to Mr. Carmona and Mrs. González, in accordance with Staff Rule 111.1(b).

That, contrary to the Complainant's allegation, the report of the investigators and the testimony constitute ample evidence that he made false and misleading statements during the investigation. In addition, the hearing officer included that report in the list of documents he consulted in reaching his conclusions, and it appears as evidence in Appendix 3 of his report.

That in 1977 the Complainant's conduct came under review by a Disciplinary Committee, and the Secretary General has not attempted to confuse the Tribunal, as the Complainant alleges, nor has he claimed that an accusation is equivalent to the imposition of a disciplinary measure. In his memorandum of April 16, 1984, the Assistant Secretary General did not terminate the summary-dismissal proceedings against the Complainant, as the latter repeatedly claims; rather, the purpose of the memorandum was to request the advice and recommendations of the Disciplinary Committee on the record of the summary-dismissal proceedings.

That although he recognizes that general principles of law arising out of judicial practice in the member states are not binding, they may be relevant, absent explicit rules and regulations for a given case.

    V. On September 23, 1985, in accordance with Article 14.2 of the Rules of Procedure of the Tribunal, the present case was placed on the list of matters pending consideration.

Once the President had set the opening date for the twenty-sixth regular session, the pertinent steps were taken and the Tribunal was composed of Alejandro Tinoco, President; John L.A. de Passalacqua, Vice President; and Coqueijo Costa, Judge.

The Tribunal began its session on October 21, 1985, took cognizance of this case, among others, and decided in its Resolution No. 171 that a public hearing would be held on October 23, 1985, at 3:30 p.m., to receive the testimony of the persons proposed, with the exception of the statement of the Secretary General. The Tribunal also accepted the documentary evidence provided by the parties and ordered oral proceedings.

After the testimony had been presented, the Tribunal met and, in accordance with Article 27 of its Rules of Procedure, designated one of its members to draft the judgment.

Having examined the proceedings, the Tribunal now

CONSIDERS:

I. COMPETENCE

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

II. QUESTIONS AT ISSUE

        2. The questions at issue are:

a. Whether the conduct imputed to the Complainant is sufficient cause for dismissal;

b. Whether the Secretary General violated due process in terminating the Complainant's employment; and

c. Whether the sanction applied to the Complainant is legally valid, given the circumstances of the case.

            a. Whether the conduct imputed to the Complainant constitutes sufficient cause

        3. The facts that constitute the serious misconduct imputed to the Complainant are divided into two phases. First, it is alleged that the Complainant violated Article 31 of the General Standards in appealing to an official of the Salvadorian Government for support of accusations against the Director of the Office of the OAS in that country and in sending a telex to the President of the Staff Association on the same matter.

        4. Secondly, serious misconduct is imputed to the Complainant and the application of Article 52(f) of the General Standards and Staff Rule 110.5(a)(ii) is recommended because he concealed the fact of his presence and participation in the visit to request the support of Assistant Secretary Abarca, and lied systematically to the fact-finding mission about this and about the telex sent to the Staff Association at headquarters.

        5. As can be seen from the facts determined by the Secretary General through the fact-finding committee of Messrs. Palma and Gómez, it is evident (a) that the Complainant was employed as messenger-chauffeur in the Office of the OAS in El Salvador; (b) that at the request of Mr. Pino, his superior, the Complainant signed jointly with him a telex addressed to the OAS Staff Association complaining of the conduct of the Director of the Office in El Salvador; (c) that at the request of Mr. Pino, he was present with the latter at a meeting convoked by Mrs. Abarca, an official of the Government of El Salvador, to discuss complaints against Mr. Castro Castillo, the Director of the OAS Office, and (d) that, in drafting the telex, his role was limited to introducing into the text "minor corrections or additions."

        6. Pursuant to Article 31 of the General Standards to Govern the Operations of the General Secretariat:

No staff member may seek influence or support of a representative on an organ or other entity of the Organization, or of any government, in matters affecting the administration of or discipline in the General Secretariat. All questions regarding these matters shall be settled in accordance with the pertinent provisions of the regulations in force.

        7. At first sight it would appear that the Complainant's presence at the meeting convoked by Mrs. Abarca violates this article. However, the record shows only that he was present at that meeting and not what he did. Moreover, it should be kept in mind that Mr. Pino was the one who dealt with Mrs. Abarca and that the presence of the Complainant was promoted by Mr. Pino, his superior, at the request of Mrs. Abarca.

        8. The Complainant's role in the telex sent to the Staff Association complaining about the conduct of the Director of the Office should be analyzed from two different standpoints. On the one hand, it should be borne in mind that it is essential to protect a staff member's right, particularly when he is stationed away from headquarters, to present his complaints and grievances to the General Secretariat without fear of reprisals. On the other hand, it must also be taken into account that it is necessary to avoid, as far as possible, dishonest accusations and complaints made in bad faith against staff members of the Organization.

        9. In the present case, the documentary evidence indicates that the staff of the Office in El Salvador were dissatisfied with the Director and felt he mistreated them. Their complaints were expressed in documents addressed to the Secretary General and to the Staff Association. The documents indicate that the situation had continued for several months.

        10. The fact-finding mission was unable to verify the staff members' complaints other than minor incidents probably caused by differences in "idiomatic turns of speech." However, the mission examined minutely the question whether it was true that "contacts" had been established between the dissatisfied employees, including the Complainant, and officials of the Salvadorian Government. The mission required each of them to make statements about those contacts; the Complainant refused to cooperate with the mission and repeatedly denied the facts.

        11. It is this denial that, in the opinion of the General Secretariat, is one instance of the serious misconduct for which the Complainant should be dismissed, since the persons who acknowledged their participation (Carmona and González) were merely admonished.

        12. The mission accused the Complainant of obstructing its investigation by systematically denying his participation in the dealings with Assistant Secretary Abarca and then insisting that he was ordered to be present by Mr. Pino, his superior.

        13. Without now discussing the degree of misconduct, which will be addressed subsequently, this Tribunal believes that determining whether an employee is guilty of misconduct is a function of the Disciplinary Committee, which in this instance relied essentially on the report of the fact-finding mission.

        14. The Tribunal finds that it was inappropriate for the fact-finding mission to impute to the Complainant new misconduct merely because he refused to incriminate himself regarding his presence at the meeting with Mrs. Abarca. To permit charges to be made on the basis of a person's refusal to admit and confess misconduct imputed to him would be tantamount to violation of the basic principle that no one may be compelled to testify against himself in a case in which he is a party.

        15. The record shows that the Complainant at first denied being present at the meeting and subsequently admitted that he had attended with Mr. Pino, but it does not prove that he expressed any opinions or views there.

        16. Consequently, this Tribunal has arrived at the following conclusions: (a) that, in accordance with Article 31 of the General Standards, the Complainant was guilty of misconduct by going to the meeting with Mrs. Abarca at the request of Mr. Pino, his superior, and of Mrs. Abarca, to request support against the Director of the OAS Office in El Salvador; (b) that the Complainant did not violate the General Standards or the Staff Rules by signing the telex prepared by Mr. Pino regarding the conduct of the Director of the OAS Office, and (c) that the Complainant's original refusal to admit that he had been present at the meeting with Mrs. Abarca does not constitute an independent act of misconduct, given the circumstances present of the present case.

b. Whether the Secretary General violated due process in terminating the Complainant's employment

        17. According to the facts in this complaint, the staff of the OAS Office in El Salvador sent a telex to the Staff Association complaining of the conduct of the Director of the Office. A copy of the telex was sent to the Secretary General, and he appointed a mission consisting of Messrs. Palma and Gómez to investigate the case within the following terms of reference:

        1. To examine the operations of the Office of the General Secretariat of the OAS in El Salvador and, particularly, the situation of its personnel.

        2. To investigate the complaint formulated in the telex sent to the Staff Association on November 29, 1983, which was received by the Association on December 1, 1983, a copy of which was delivered to the General Secretariat, and also to investigate the information received from the Permanent Mission of El Salvador, which was transmitted by Mr. Alfredo Millán, Minister Counselor of the Mission.

        3. To make pertinent recommendations.

        18. The report prepared by the mission shows that it did not find that the Director of the Office was guilty of any misconduct. However, it did consider that the employees who had complained were guilty of misconduct, and admonished two of them and recommended the dismissal of two more, including Mr. Monge, the Complainant.

        19. In the case of Mr. Pino, the mission recommended, as alternatives, that he be separated from service under Article 52(f) of the General Standards or be suspended for 30 days in accordance with Staff Rule 111.1(b)(iv) and transferred to another duty station. In the case of Mr. Monge, it recommended that his services be terminated pursuant to Article 52(f) of the General Standards.

        20. After studying the report and recommendation of the fact-finding mission conducted by Messrs. Palma and Gómez, the Director of OCAOFS decided that the Complainant was guilty of serious misconduct under Staff Rule 110.5 and recommended to the Secretary General his summary dismissal, pursuant to that Rule.

        21. In January 1984, the Secretary General initiated summary-dismissal proceedings and designated Luis Lizondo as hearing officer. The Complainant was notified of this and was provided with the means to travel to headquarters so that he could make any statements and present any evidence that he cared to. In due course, Mr. Lizondo presented his report, in which he recommended, as alternatives, that the Complainant's services be terminated under Article 52(f) of the General Standards or that he be suspended from duty for 30 days pursuant to Staff Rule 111.1(b)(iv).

        22. Two months later, in a communication dated April 16, 1984, the Secretary General arrived at the conclusion that:

. . . it would not be appropriate to apply Article 52(f) of the General Standards as a sanction, as was recommended in the case of Mr. Monge, because its application here would be contrary to the spirit of that provision.

        23. In the same letter, the Secretary General said that he had decided to convoke a Joint Disciplinary Committee to obtain its views on the sanctions to be applied, and he stated that:

. . . it is not necessary to carry out a new investigation, as the record contains all the information needed for the Joint Disciplinary Committee to make its recommendations.

        24. The Committee held several sessions, at which it heard the taped record of the hearings conducted by Mr. Lizondo and also interviewed Messrs. Palma and Gómez. The Committee felt that it was not necessary to hear from the Complainant because it considered that the available documentation and the taped record of his interviews with the fact-finding mission were sufficient. Consequently, it recommended the application of Staff Rule 111.1(b)(v) and said that it would be desirable to reach an agreement with him in the spirit of Article 52(f) of the General Standards.

        25. The Secretary General notified the Complainant in due time of his decision to accept the recommendation of the Joint Disciplinary Committee, and the Complainant requested the convocation of the Joint Advisory Committee on Reconsideration and designated his representative.

        26. The Reconsideration Committee examined the case on the basis of the record and presented its report, in which it concluded that the Complainant had violated Article 31 of the General Standards and was guilty of serious misconduct for not admitting his presence at the meeting. The Committee recommended his suspension from duty for a period of 25 days pursuant to Staff Rule 111.1(b)(v).

        27. The Secretary General did not accept the recommendation of the Reconsideration Committee but did accept that of the Disciplinary Committee, and terminated Complainant's services in accordance with Staff Rule 111.1(b)(v).

        28. The Complainant challenged the Secretary General's decision, claiming that the Joint Disciplinary Committee had not heard him and had based its conclusions exclusively on the report of the fact-finding mission.

        29. It is only now, before this Tribunal, that the Complainant has challenged the Disciplinary Committee's finding that it was unnecessary for him to come before it to make statements and to defend his case. The Tribunal considers that it is not essential for due process that an opportunity be provided for making statements whenever an administrative measure is reviewed. Therefore, the Tribunal concludes that the principle of due process was not violated in this case.

c. Whether the sanction applied to the Complainant is legally valid, given the circumstances of the present case

        30. Determination of the disciplinary sanction to be applied to an employee who is guilty of serious misconduct is a discretionary function of the Secretary General, which he exercises on the basis of the recommendations of the Disciplinary Committee. As the Tribunal has established, such decisions may not be arbitrary but must take into account considerations of timeliness, advisability, fairness, and logic and the rights of the employee concerned.

        31. All the reports submitted by missions, hearing officers, Disciplinary Committees, and Reconsideration Committees coincide in concluding that the campaign waged against the Director of the Office of the OAS in El Salvador was instigated, developed, and perpetrated by Mr. Pino, the Acting Director. As the record shows, it was he who drafted the telex sent to the Staff Association; it was he who initiated contacts with the Salvadorian Government; and it was also he who promoted the participation of the other members of the Office staff.    

        32. Except for the report of the Disciplinary Committee, all the reports coincide in recommending sanctions that are essentially similar for both Mr. Pino and the Complainant. Taking into account the fact that Mr. Pino had been given 30 days' suspension from duty, the Reconsideration Committee therefore understood that it could not recommend a sanction of more than 25 days' suspension for the Complainant. The Secretary General did not accept that recommendation.

        33. The Tribunal considers that although the Secretary General has the authority to terminate the services of certain employees, the decision to terminate the services of the Complainant under Staff Rule 111.1(b)(v) does not conform to the nature of the Complainant's misconduct. It further finds that the record does not definitely show that Mr. Monge attended the meeting with Mrs. Abarca at his own initiative, in violation of Article 31 of the General Standards.

        34. The Tribunal cannot fail to note the manifestly discriminatory treatment that the General Secretariat has given the case of Mr. Monge, in comparison with that given to the case of his supervisor. This in itself constitutes an injustice, especially given the difference between Mr. Monge's level and that of his supervisor.

        35. In this case, the principle of labor law known as in dubio pro operario is applicable.

By virtue of the foregoing, and pursuant to Article II.1 and 2 and Article VII.2 of its Statute, the Administrative Tribunal unanimously

RESOLVES:

        1. To declare that the Secretary General must reinstate the Complainant as a permanent staff member in the grade that he had at the time of his separation from service.

        2. To declare that the Secretary General must pay the Complainant the salary that he would have received from the day of his separation up to the date of his reinstatement, together with the increments and benefits that correspond to that period.

        3. In the event that the Secretary General makes use of his option under Article VII.2 of the Statute of the Tribunal, an amount equivalent to 2 years' basic salary, to be paid to the Complainant by the General Secretariat, is set as indemnity. In this case, the amounts provided in paragraph 2 above shall not be paid to him.

        4. The sum of US$2,000 is set as the amount of attorney's fees that the General Secretariat must pay the Complainant.

Let notification be given.

Washington, D.C., November 1, 1985

Alejandro Tinoco, Esq. / President

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

Coqueijo Costa, Esq. / Judge

Martha Braga, Esq. / Secretary