Developments in the Jurisprudence of the International Monetary Fund Administrative Tribunal: 2005
- International Monetary Fund
- Published Date:
- December 2009
Established in 1994,1 the International Monetary Fund Administrative Tribunal (“IMFAT” or “Tribunal”) serves as an independent judicial forum for the resolution of employment disputes arising between the International Monetary Fund (“IMF” or “Fund”) and its staff members.2 An Applicant may challenge the legality of an “individual” or “regulatory” decision of the Fund by which he has been “adversely affect[ed].”3 In the case of challenges to “individual” decisions, an Application may be filed only after the Applicant has exhausted all available channels of administrative review.4 The Judgments of the Tribunal are final and without appeal.5
The Tribunal is composed of a President, two Associate Judges and two Alternate Judges, each appointed for two-year terms and eligible for reappointment.6 The composition of the International Monetary Fund Administrative Tribunal remained unchanged during the year 2005, with Judge Stephen M. Schwebel serving as the Tribunal’s President, Judges Nisuke Ando and Michel Gentot as Associate Judges, and Judges Georges Abi-Saab and Agustín Gordillo as Alternate Judges.7 During 2005, the Tribunal rendered four Judgments and two Orders. This review highlights some of the most significant issues, both substantive and procedural, addressed by the IMFAT during the year.8
Developments in the Substantive Law
The case of Mr. “F”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2005–1 (March 18, 2005) presented the Tribunal for the first time with the following issues of substantive law: (a) the lawfulness of the abolition of a position; (b) an allegation of religious discrimination; and (c) a claim that a staff member had been the object of harassment and a hostile work environment. Allegations of discrimination were also at issue in two additional Applications decided during 2005. In Ms. “W”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2005–2 (November 17, 2005), and Ms. “Z”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2005–4 (December 30, 2005), the Tribunal reviewed challenges to decisions taken under the Fund’s Discrimination Review Exercise (“DRE”), applying principles set out in an earlier Judgment.
Abolition of Position
The case of Mr. “F” required the Tribunal to interpret for the first time the law governing abolition of posts, which is set out in the Fund’s internal law in GAO No. 16. Mr. “F” asserted that the decision to abolish his position, which was part of a restructuring of his department, was not justified by institutional needs but rather served as a pretext for removing him from his work unit. Mr. “F” alleged that the abolition decision was motivated by religious discrimination and that during his employment he had been subjected to harassment and a hostile work environment based on his religious affiliation, which differed from that of his immediate co-workers. Mr. “F” additionally maintained that he was not given adequate notice of the abolition of his post nor good faith assistance in attaining a reassignment.
The Tribunal initially addressed the Applicant’s principal claim, that the abolition of his position represented an abuse of managerial discretion. Referring to the governing provisions of the Fund’s internal law, the Tribunal noted that the essential requirements for a lawful abolition of position are that the position has been abolished or redesigned to meet institutional needs and the incumbent is no longer qualified to fulfill its requirements.9
Reviewing the evidence, the Tribunal considered whether there were “material differences” between the duties assigned to Mr. “F” in his former post and those allocated to the position that was introduced in his section following its restructuring. The IMFAT concluded that the new position involved responsibilities materially different from, and more demanding than, those that had been performed by the Applicant.10 Moreover, in the view of the Tribunal, the Fund reasonably had exercised its discretion in determining that Mr. “F” was not qualified to meet the requirements of the redesigned position.11
In considering whether the abolition of Mr. “F”’s position was taken to meet institutional needs, the Tribunal also examined the rationale set out by the Fund for the structural changes affecting the Applicant’s work unit. The Tribunal concluded that the reasons advanced by the Fund in justification for these changes, including redeployment of positions to areas experiencing increased workload, were “credible and sufficient” to justify abolition of the Applicant’s post.12 The Tribunal rejected Mr. “F”’s contention that the abolition of his position had been “improperly motivated,”13 either to resolve longstanding personnel problems14 or by religious discrimination (see below).
While sustaining the abolition decision itself, the Tribunal nonetheless found in the Applicant’s favor as to his contention that the decision had not been taken in accordance with fair and reasonable procedures. The Tribunal concluded that while the procedures followed in the case of Mr. “F” were consistent with the Fund’s interpretation of Section 13.02 of GAO No. 16, i.e., that the notice period functions as notice of separation from service rather than of the abolition of position, “. . . the fair and transparent procedures that govern or should govern the operations of the Fund require that a staff member whose position is abolished be given reasonable notice of that prospect” and that the “summary notice” given to Mr. “F” was not adequate for that purpose. The Tribunal accordingly held that the Fund had failed to give Mr. “F” reasonable notice of the abolition of his post15 and awarded him compensation for this failure.16
Discrimination Prohibited by Universally Accepted Principles of Human Rights
The case of Mr. “F” was also the “. . . first in which the IMFAT ha[d] been called upon to address an allegation that a staff member’s career ha[d] been adversely affected by religious prejudice, a source of discrimination prohibited by the Fund’s internal law [footnote omitted] as well as by universally accepted principles of human rights.”17 Other Applicants, observed the Tribunal, had alleged discrimination of a “distinctly different and less serious type,” namely, that a classification scheme relating to Fund salary or benefits unfairly favored one category of staff members over another.18 In the view of the Tribunal, the allegation that the abolition of Mr. “F”’s position had been discriminatory on the ground of his religion was a “serious charge that may be subject to particular scrutiny by the Tribunal.”19
The Tribunal noted that the Fund had “recognized from its inception the importance to a global institution of maintaining a nondiscriminatory workplace,” incorporating a rule against discrimination in its “N Rules.”20 In recent years, the Fund had “taken additional steps evidencing the significance which it attaches to this matter,” in particular the adoption of the Discrimination Policy, which protects against “. . . differences in the treatment of individuals or groups of employees where [inter alia] the differentiation is not based on the Fund’s institutional needs and . . . is made on the basis of personal characteristics such as age, creed, ethnicity, gender, nationality, race, or sexual orientation . . . .”21
Mr. “F” alleged both that the abolition of his position had been improperly motivated by religious discrimination and that he had been the object of religious intolerance and workplace harassment during his employment with the Fund. As to the first claim, the Tribunal’s answer to the question of whether the decision to abolish Mr. “F”’s position was motivated by religious discrimination was “decidedly negative.” The Tribunal found “. . . no evidence that those who took the decision to abolish Mr. “F”’s position were so motivated.”22
The Tribunal responded to Mr. “F”’s second contention, i.e., that he had suffered discriminatory treatment during his career with the Fund, with reference to the Fund’s Discrimination Policy. Specifically, the IMFAT asked whether the Applicant had shown that he had been subjected to a “‘. . . pattern of words, behaviors, action or inaction (such as the failure to take appropriate action in response to a complaint of discrimination), the cumulative effect of which is to deprive the individual of fair and impartial treatment.’”23 The answer to that question was to be found by referring also to the Fund’s internal law prohibiting harassment in the workplace.
Harassment and Hostile Work Environment
Accordingly, the case of Mr. “F” was not only the first to present the IMFAT with an allegation of discrimination on a ground prohibited by universally accepted principles of human rights, but also the first in which a staff member contended that he had been the object of harassment and a hostile work environment prohibited by the Fund’s Policy on Harassment. These contentions of discrimination and harassment were closely intertwined in the facts presented in Mr. “F”.
Moreover, in considering whether Mr. “F” had been “subjected to a hostile work environment in contravention of the Fund’s internal law,” the Tribunal observed that “. . . discrimination and harassment are closely related under the law of the Fund inasmuch as harassment on the basis of specified characteristics may amount to discrimination on such grounds . . . .”24 At the same time, the Fund’s prohibition on harassment provides more broadly that harassment is “any behavior, verbal or physical, that unreasonably interferes with work or creates an intimidating, hostile, or offensive work environment.”25
Examining the facts presented in the case of Mr. “F”, the Tribunal concluded that “. . . the evidence predominantly sustains the conclusion that the Section in which Mr. “F” worked suffered from an atmosphere of religious bigotry and malign personal relations among certain of its members, and that he in particular suffered accordingly. . . .” The IMFAT found “ground to conclude that Applicant suffered from harassment in the workplace, as that concept is defined in the Fund’s Policy on Harassment.” This was so, held the Tribunal, “though there is also evidence that he may have contributed to the malign atmosphere in the Section by his own behavior.” 26
In the view of the Tribunal,
. . . there is evidence in the record that Mr. “F” felt, and had reason to feel, that he was the object of hostility on the part of certain of his colleagues because his religion was different from theirs . . . . [T]here is also evidence that an atmosphere of religious animosity was tantamount to harassment that adversely affected the work performance and perhaps health of Mr. “F”. Harassment also appears to have had origins not of a religious kind.27
Moreover, the Tribunal found “no evidence in the record that Fund supervisors took effective action to deal with that unacceptable situation.”28 While a senior economist had been assigned to investigate and resolve personnel problems plaguing Mr. “F”’s work unit, in the view of the Tribunal, these efforts were “not enough to absolve the Fund of responsibility for not addressing Mr. “F”’s complaints of religious hostility.”29 In the light of the record, the Tribunal concluded that the Fund had failed to take effective measures in response to the religious intolerance and workplace harassment of which Mr. “F” was an object and awarded him compensation on that ground.30
Cases arising from the Discrimination Review Exercise (“DRE”)
During 2005, the IMFAT rendered Judgments in two cases arising from the Discrimination Review Exercise (“DRE”), an alternative dispute resolution mechanism implemented by the Fund for a brief period in the late 1990s to resolve longstanding complaints of discrimination that had not been raised through the Fund’s formal channels. Following its precedent in Ms. “Y” (No. 2), Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2002–2 (March 5, 2002), the IMFAT in Ms. “W” and Ms. “Z” reaffirmed that decisions taken under the DRE were subject to only limited review by the Tribunal. The Tribunal therefore declined to engage in a de novo consideration of the merits of the Applicants’ underlying discrimination claims.31
Accordingly, while the case of Mr. “F” presented the Tribunal directly with the question of whether a staff member had experienced discrimination violative of the Fund’s internal law as well as universally accepted principles of human rights, in the cases of Ms. “W” and Ms. “Z”, the Tribunal’s inquiry was limited to the sustainability of the DRE review teams’ conclusions and their ratification by the Director of Administration.
Both Ms. “W” and Ms. “Z” maintained that their careers with the Fund had been adversely affected by gender discrimination. Ms. “Z” also cited her national origin and age as bases of alleged discrimination, which she contended had prevented her from attaining a Fund career commensurate with her qualifications and experience. Ms. “W” had put forth statistical data, which she contended established that gender discrimination had affected her grade and salary.
In each case, the Tribunal sustained the DRE review’s finding of nondiscrimination, concluding that the findings were not arbitrary or capricious but rather were reasonably supported by evidence.32 In the case of Ms. “W”, the Tribunal took account of the fact that the Applicant had been awarded relief as a result of the DRE process for “unfair or uneven treatment” and that the DRE by its terms was not designed to determine “discrimination” to a legal standard.33 Both Ms. “W” and Ms. “Z” also challenged the adequacy of the remedies granted them as a result of the DRE review; in each case, the Tribunal concluded that the remedies were reasonably based.34
The Tribunal additionally rejected a series of procedural complaints brought by each of the Applicants, holding that the procedures applied were “reasonable, appropriate and consistent with the DRE procedures and with the fair resolution of Applicant’s claim.”35 Notably, the Tribunal sustained the considerable leeway accorded the DRE teams in the methodology by which they conducted their reviews pursuant to the alternative dispute resolution mechanism. The way in which individual cases were to be considered was, by the terms of the DRE, to depend on the circumstances giving rise to the complaint. Accordingly, as Ms. “W” had raised with the DRE review team no specific instances or acts of discrimination from which her Fund career allegedly had suffered, it was, in the view of the Tribunal, understandable that the DRE team sought to discover whether there were reasons other than discrimination to explain her career progression.36 The Tribunal observed that the approach taken in the DRE review of Ms. “W”’s complaint differed from that taken in the case of Ms. “Z”, in which the Applicant did bring to the DRE team’s attention a series of incidents which, in her view, evidenced discrimination in her Fund career. In the case of Ms. “Z”, the Tribunal sustained the team’s approach as “entirely consistent with the overall method contemplated for the DRE exercise,” noting that the Applicant had appeared to take issue with the review team’s methodology of focusing its investigation on the series of incidents that she herself had drawn to its attention.37
In both cases, the Tribunal held that it was not arbitrary, capricious or discriminatory for the Fund to base the DRE review of individual cases upon qualitative as well as statistical factors and rejected the view that statistics alone might establish discrimination under the DRE.38 The Tribunal emphasized that the fact of the Applicants’ non-advancement was not proof of discrimination.39 Likewise, the Tribunal held that statistics relating to the outcomes of the discrimination review were not probative of discrimination in the DRE process or in the review of the Applicants’ complaints.40
Admissibility of Parties and Claims before the Administrative Tribunal
During 2005, the IMFAT also addressed the admissibility of parties and claims before the Tribunal. In Mr. “F”, Applicant v. International Monetary Fund, Respondent (Interpretation of Judgment No. 2005–1), IMFAT Order No. 2005–2 (December 6, 2005), the Tribunal, rejecting a request for interpretation of judgment pursuant to Article XVII of the Statute, underscored that, as a judicial body, its authority is limited to the resolution of concrete controversies and that it is not empowered to render advisory opinions. In Baker et al., Applicants v. International Monetary Fund, Respondent (Admissibility of the Applications), IMFAT Judgment No. 2005–3 (December 6, 2005), the Tribunal, denying a Motion for Summary Dismissal, elaborated the meaning of the “adversely affecting” requirement of Article II in the context of a direct challenge to a “regulatory” decision of the Fund. In Ms. “W” and Ms. “Z”, the Tribunal considered challenges to the admissibility of claims secondary to the Applicants’ principal contentions, on the ground that the Applicants had failed to meet the exhaustion of remedies requirement of Article V in respect of those claims.
Request for Interpretation of Judgment
As detailed above, the Tribunal in its Judgment in Mr. “F” sustained the Fund’s decision to abolish the Applicant’s position as a reasonable exercise of discretionary authority. Nonetheless, it found in favor of Mr. “F” on two other grounds, namely, that the Fund had failed (a) to take effective measures in response to religious intolerance and workplace harassment of which he was an object, and (b) to give Mr. “F” reasonable notice of the abolition of his position. The latter holding gave rise to a request by the Fund for interpretation of judgment.41
Article XVII of the Tribunal’s Statute provides that “[t]he Tribunal may interpret or correct any judgment whose terms appear obscure or incomplete, or which contains a typographical or arithmetical error.” The Fund in its request acknowledged that the operative provisions of the Judgment were clear in respect of their application in the case of Mr. “F”, i.e., there was no question as to how the Judgment should be executed. The Fund nonetheless contended that the request for interpretation was admissible on the ground that, with respect to future cases, the impact of the Tribunal’s decision on the Fund’s practices was unclear.42 The request identified two issues in particular on which the Fund sought the Tribunal’s views: (1) the nature and purpose of the requirement of advance notice of a decision to abolish a position; and (2) how long a period of notice would be considered “reasonable.”43
The Tribunal denied the Fund’s request for interpretation of judgment, emphasizing that its statutory authority to render an interpretation of judgment is one of two narrowly drawn exceptions to the general rule of finality of judgments.44 In the view of the Tribunal, the Fund had not specified in what respect the operative provisions of the Judgment were “obscure or incomplete” (Statute, Article XVII; Rule XX (2)).45 Moreover, observed the Tribunal:
The Tribunal is not an advisory body. Its powers do not go beyond the resolution of the cases brought before it by applicants. In the words of the Commentary on the Statute:
“. . . the Tribunal would not be authorized to resolve hypothetical questions or to issue advisory opinions.”46
The Tribunal concluded that “. . . the Fund is seeking advice rather than interpretation. It seeks advice as to how it should apply a holding in the case of Mr. “F” that in itself is not obscure or incomplete. The rendering of such advice is not within the powers of the Tribunal.”47
The “Adversely Affecting” Requirement of Article II and Direct Challenge to a Regulatory Decision
The limitation on the IMFAT’s authority to decide only concrete controversies was also at issue in Baker et al., Applicants v. International Monetary Fund, Respondent (Admissibility of the Applications), IMFAT Judgment No. 2005–3 (December 6, 2005), in which the Fund sought summary dismissal of Applications contesting a decision of the IMF Executive Board revising the system of staff compensation.48 The Tribunal denied the Fund’s Motion for Summary Dismissal, rejecting the contention that the Applicants had not been “adversely affect[ed]” by the contested decision, as required by Article II49 of the Statute.
The statutory provision at issue prevents the Tribunal from exercising jurisdiction to decide a claim if the Applicant lacks standing to raise it. Drawing upon its earlier Judgment in the case of Ms. “G”, Applicant and Mr. “H”, Intervenor v International Monetary Fund, Respondent, IMFAT Judgment No. 2002–3 (December 18, 2002), the Tribunal reaffirmed that the “‘intendment of [the “adversely affected”] requirement is simply to assure, as a minimal requirement for justiciability, that the applicant has an actual stake in the controversy.’”50
The Fund had contended that the Baker Applicants had not been “adversely affected” by the Executive Board’s decision because the widening of discretion embodied in the contested decision had not resulted in any adverse financial consequences for the staff members in the 2005 compensation round. The Tribunal concluded, however, that the challenged decision did have “some present effect” on the Applicants’ position: “That effect is inherent in the wider discretion that the Executive Board has assumed in respect of salary adjustments which, in the absence of further action by the Executive Board, will be applied in 2006.”51
In the view of the Tribunal, the widening of the Fund’s discretion to adjust the compensation of its staff permitted the Applications to “cross the threshold of admissibility,” which the Tribunal noted was “. . . not steep, because, by the terms of Rule XII of the Rules of Procedure, an application may be summarily dismissed only ‘if it is clearly inadmissible.’” 52 The Tribunal, in sustaining the admissibility of Applications directly challenging a “regulatory” (as contrasted with an “individual”) decision of the Fund, found additional support in the Commentary on the Statute, which “. . . looks to resolution of a question of the legality of regulatory decisions ‘. . . before there has been considerable reliance on, or implementation of, the contested decision.’”53 The Motion for Summary Dismissal accordingly was denied.54
The Exhaustion of Remedies Requirement and the Admissibility of Related Claims
In Ms. “W” and Ms. “Z”, the Applicants not only challenged the results of the DRE review of their longstanding discrimination complaints but also sought to raise allegations secondary to those principal claims. Relying upon its jurisprudence elaborating the importance of and rationale for the exhaustion of remedies requirement of Article V,55 the Tribunal concluded that some of the Applicants’ related claims were admissible, while others were not. None of the additional claims was sustained on the merits.
In the case of Ms. “W”, the Applicant alleged that the Fund had failed to implement career development measures prescribed as part of the remedial action resulting from the DRE and had improperly used the report of the DRE investigation to deny her a promotion. These issues had arisen following Ms. “W”’s initiation of administrative review of the Director of Administration’s decision. The IMFAT concluded that it had no difficulty in passing upon Ms. “W”’s additional contentions, which related to the implementation of the contested DRE decision, “. . . insofar as they are a) closely linked with the challenge to the DRE decision itself and b) have been given some measure of review in the context of a procedure intended to give finality to longstanding claims.”56
The Tribunal explained its reasoning both in terms of the purposes of the administrative review requirement and the fact that the additional claims “. . . arose in the unique circumstance of the pendency of a complex review procedure, including voluntary mediation, designed to achieve a final resolution of the DRE complaints.”57 Moreover, the Grievance Committee, during its hearings in Ms. “W”’s case, had admitted testimony as to the allegations that the Applicant sought to raise before the Tribunal: “The Tribunal accordingly has the benefit of this evidentiary record and the parties have had the opportunity to settle their claims, thereby fulfilling policies underlying the requirement for exhaustion of administrative review.”58
Applying the same test to a different set of facts, however, in Ms. “Z”, the Tribunal held inadmissible a claim relating to past merit increases that the Applicant attempted to present via an additional pleading before the Tribunal but which had not been the subject of administrative review. In the circumstances, the Tribunal concluded that the claim was “neither ‘closely linked with the challenge to the DRE decision itself,’ nor ha[d] it ‘been given some measure of review’ in the Grievance Committee.”59
Additionally, Ms. “W” and Ms. “Z” both contended in their pleadings before the Tribunal that they continued to be subjected to discrimination on the same grounds of which they had complained through the DRE. In each case, the IMFAT held these contentions of “continuing” discrimination inadmissible on the basis that the Applicants had failed to exhaust the requisite channels of administrative review. The Tribunal underscored the importance of timely presentation of claims through the Fund’s formal channels for the resolution of staff disputes:
[I]n view of the conclusion . . . that the scope of the Tribunal’s review of DRE cases is limited and that the Tribunal may not examine underlying contentions of discrimination raised in the DRE as if they had been pursued through the steps required under GAO No. 31 . . . , there can be no ground for the Tribunal to find jurisdiction to review, as part of a challenge to a DRE decision, discrimination claims arising after the conclusion of the DRE process, based upon any theory of “continuing” discrimination.60
The IMFAT’s Fact-Finding Authority and its Relationship to the Fund’s Grievance Committee
In addition to refining its interpretation of the exhaustion of remedies requirement of Article V of its Statute, the IMFAT during 2005 had occasion to revisit the question of its relationship to the Fund’s Grievance Committee.61 In an earlier Judgment, the Tribunal had held that it does not function as an appellate body vis-à-vis the Grievance Committee because (a) the Tribunal makes both findings of fact and conclusions of law, and (b) the recommendation of the Grievance Committee to the Managing Director on the merits of a Grievance is not an “administrative act” within the IMFAT’s jurisdiction ratione materiæ.62 At the same time, the IMFAT, in reaching its findings and conclusions, “draws upon the record assembled through the review procedures.”63 “The Tribunal is authorized to weigh the record generated by the Grievance Committee as an element of the evidence before it,”64 and the IMFAT has commented on the value of the Grievance proceedings to the “reliability of later adjudication” by the Tribunal.65 Additionally, the Tribunal may “take account of the treatment of an applicant before, during and after recourse to the Grievance Committee.”66
Against this jurisprudential background, the Tribunal in 2005 considered a claim by Ms. “Z” that the Grievance Committee, in its review of her challenge to the DRE decision antecedent to her Application in the Tribunal, had failed to conduct its proceedings in a “neutral and professional manner” or in accordance with due process.67 The IMFAT responded to these allegations by declining to pass upon the Grievance Committee’s own fact-finding process while at the same time taking account of the role that the record of the Committee’s proceedings plays in the Tribunal’s decision making.
As to Ms. “Z”’s contentions that the Committee “blocked” her expert witness from testifying and improperly denied her request for documents, the Tribunal concluded that “. . . the Grievance Committee’s decisions as to the admissibility of evidence and production of documents are not subject to review by the Administrative Tribunal.” These decisions, held the Tribunal, like the final recommendation of the Grievance Committee on the merits of a Grievance, are not “administrative acts” within the contemplation of Article II of the Tribunal’s Statute. Rather, they rest exclusively within the authority granted the Grievance Committee under its constitutive instrument GAO No. 31.68
In light of its jurisprudence holding that it may weigh the record generated by the Grievance Committee as an element of the evidence before it, however, the IMFAT examined the record of the proceedings in the case of Ms. “Z” to determine whether there was “any cause to discount that record in the weighing of the evidence.” In the view of the Tribunal, the extensive transcripts of the Committee’s proceedings, in which Ms. “Z” had the active assistance of counsel and the opportunity herself to comment and pose questions to witnesses, revealed “no ground to question that [the record] be given any less than the full measure of weight that the Tribunal ordinarily accords to those proceedings.”69
While abstaining in Ms. “Z” from passing upon the Grievance Committee’s fact-finding process, the Tribunal also took note of the availability of its own fact-finding tools, observing that “. . . any lapse in the evidentiary record of the Grievance Committee may be rectified, for purposes of the Tribunal’s consideration of the case, through the Tribunal’s authority, pursuant to Article X of its Statute and Rules XVII and XIII of its Rules of Procedure to order the production of documents, to request information and to hold oral proceedings.” Ms. “Z”, the Tribunal observed, had made no such evidentiary requests of the Tribunal.70
The independence of the IMFAT’s fact-finding process was highlighted in the cases of Mr. “F” and Ms. “W”, in which the Applicants did avail themselves of the Tribunal’s authority to consider requests for production of documents. In applying Rule XVII of the Tribunal’s Rules of Procedure, the IMFAT decided independently of the Grievance Committee’s earlier determination the question of whether the requested documents were to be produced. In Mr. “F”, the Tribunal reviewed in camera documents that similarly had been examined by the Grievance Committee in order to assess their relevance to the issues of the case, along with competing privacy interests, under the terms of the Tribunal’s discovery Rule.71
Remedies and Legal Costs
The IMFAT, having decided in the case of Mr. “F” that the Applicant had prevailed in part on his claims, exercised its remedial authority as set out in Article XIV (1) of the Statute.72 The Tribunal’s Judgment in Mr. “F” was the second in which it awarded relief for intangible injury. Reaffirming its “‘. . . authority to reject an Application challenging the legality of an individual decision while finding the Fund nevertheless to be liable in part, as by procedural irregularity in reaching an otherwise sustainable decision,’”73 the Tribunal concluded that “. . . the relevant jurisprudence establishes that . . . relief may be awarded for intangible injury.”74 The Tribunal ordered the Fund to pay Mr. “F” compensation in the sum of $100,000 for its failures (a) to take effective measures in response to the religious intolerance and workplace harassment of which Mr. “F” was an object, and (b) to give him reasonable notice of the abolition of his post.75
In assessing Mr. “F”’s compensable legal costs pursuant to Article XIV (4),76 the Tribunal acknowledged that the Applicant was “. . . not successful on his principal and most complex claim, that the abolition of his position represented an abuse of discretion by the Fund.” Nonetheless, the Tribunal awarded Mr. “F” seventy-five percent of the total costs submitted, explaining its rationale in the following terms:
Although Applicant did not succeed on his principal claim, the Administrative Tribunal considers that the record assembled and argued by Applicant’s counsel in pursuit of that claim was indispensable to the Tribunal’s award to Applicant of substantial relief on other substantial counts, and that accordingly the Fund should bear the great majority of Applicant’s legal costs.77
During 2005, the Tribunal considered issues of substantive law with which it had not previously been confronted. These included: the requirements for a lawful abolition of position; allegations of discrimination on the basis of religion, which the IMFAT recognized as prohibited by universally accepted principles of human rights; and the relationship under the Fund’s internal law between discrimination and harassment in the workplace. While the case of Mr. “F” presented the Tribunal directly with the question of whether a staff member had been the object of impermissible discrimination, the cases of Ms. “W” and Ms. “Z” required the Tribunal to consider the sustainability of findings of nondiscrimination that had been made under an alternative dispute resolution procedure.
The IMFAT in 2005 also responded to several challenges to the admissibility of parties and claims before the Tribunal, confirming the essence of its judicial character to decide only concrete controversies presented by adversely affected Applicants. It declined to render an interpretation of judgment in Mr. “F” where the terms of the Judgment were not “obscure or incomplete” and, in the view of the Tribunal, the Fund was seeking an advisory opinion. In Baker, the Tribunal concluded that Applicants seeking to challenge a revision to the Fund’s compensation system had met the “adversely affecting” requirement of Article II; although no financial consequences had been shown, the contested decision, by widening the Fund’s discretion in the setting of staff salaries, had “some present effect” upon the Applicants. In Ms. “W” and Ms. “Z”, cases arising from the Discrimination Review Exercise, the Tribunal assessed the issue of the admissibility of related claims in light of the purposes underlying the exhaustion of remedies requirement of Article V.
The Tribunal also elaborated during 2005 its relationship to the Fund’s Grievance Committee, reaffirming that it makes its own findings of fact and conclusions of law, while drawing upon the record assembled through the review procedures. In Ms. “Z”, the Tribunal abstained from regulating the Grievance Committee’s fact-finding process. In Mr. “F” and Ms. “W”, the Tribunal underscored its own independent fact-finding authority.
Additionally, the Tribunal during 2005 exercised its remedial authority pursuant to Article XIV of its Statute. It awarded compensation for intangible injury and ordered that the Fund bear the greater part of Mr. “F”’s legal costs, in view of the efforts required of his counsel in prevailing in part on multiple claims.
Registrar, International Monetary Fund Administrative Tribunal.
The Tribunal’s Statute was adopted by the IMF Board of Governors by Resolution 48–1 and entered into force on October 15, 1992. The Tribunal was formally established on January 13, 1994 when, pursuant to the Statute, the Managing Director notified the staff of the Fund of the appointment of the Tribunal’s members. (Statute, Article XX (2).)
The Tribunal’s jurisdiction also embraces enrollees in and beneficiaries under staff benefit plans challenging administrative acts arising under such plans. (Statute, Article II (1) (b).)
Statute, Article II (1) and (2).
Statute, Article V (1).
Statute, Article XIII (2).
Statute, Article VII (1)(a) and (b), and (2).
The Tribunal’s Judges must satisfy the statutory requirement that they possess the qualifications required for appointment to high judicial office or be jurisconsults of recognized competence. (Statute, Article VII (1) (c).) The composition of the Tribunal (2005) not only ably fulfills this requirement but also reflects major legal systems of the world:
Judge Stephen M. Schwebel (United States), President
Former President, International Court of Justice;
Associate Judge Nisuke Ando (Japan)
Professor of International Law, Doshisha University, Kyoto
Director, Kyoto Human Rights Research Institute
Member and Former Chairperson, Human Rights Committee under ICCPR;
Associate Judge Michel Gentot (France)
Former President of the Judicial Chamber, Conseil d’Etat, France
President, International Labour Organisation Administrative Tribunal;
Alternate Judge Georges Abi-Saab (Egypt)
Emeritus Professor of International Law,
Graduate Institute of International Studies, Geneva
Chairman of the Appellate Body, World Trade Organization;
Alternate Judge Agustín Gordillo (Argentina)
Emeritus Professor, University of Buenos Aires School of Law
Judge, Organization of American States Administrative Tribunal
Judge, International Labour Organisation Administrative Tribunal.
For reviews of the Tribunal’s earlier jurisprudence, see Goldman, “The International Monetary Fund Administrative Tribunal: Its First Six Years,” in International Monetary Fund Administrative Tribunal Reports, Vol. I, 1994–1999, pp. 1–33 (2000); Goldman, “Developments in the Jurisprudence of the International Monetary Fund Administrative Tribunal: 2000–2002,” in International Monetary Fund Administrative Tribunal Reports, Vol. II, 2000–2002, pp. 1–20 (2008); and Goldman, “Developments in the Jurisprudence of the International Monetary Fund Administrative Tribunal: 2003–2004,” in International Monetary Fund Administrative Tribunal Reports, Vol. III, 2003–2004, pp. 1–18 (2008).
Mr. “F”, para. 51.
Id., para. 59.
Report of the Executive Board to the Board of Governors on the Establishment of an Administrative Tribunal for the International Monetary Fund (“Report of the Executive Board”), p. 19.
This principle is particularly significant with respect to decisions which involve an assessment of an employee’s qualifications and abilities, such as promotion decisions and dismissals for unsatisfactory performance. In this regard, administrative tribunals have emphasized that the determination of the adequacy of professional qualifications is a managerial, and not a judicial, responsibility.
Mr. “F”, paras. 61–62.
The IMFAT observed that international administrative jurisprudence suggests that improper motive may be found, for example, if the purpose of the abolition of a position is to terminate a particular individual for misconduct or unsatisfactory performance, and that there must be a causal link between the contested decision and the alleged irregular motive. Id., paras. 71–74.
Mr. “F” alleged inter alia that the “real purpose” for the restructuring was to resolve longstanding personnel problems in his Section rather than to achieve institutional efficiency. Having found the abolition decision to be justified by the institutional needs cited by the Fund, the Tribunal considered whether “. . . the fact that the Fund saw the restructuring not only as justified by [these] considerations . . . but as carrying the further advantage of overcoming the Section’s notorious personnel conflicts deprive[d] the restructuring of its legitimacy.” The Tribunal concluded that the legitimacy of the Fund’s exercise of discretionary authority was not vitiated by this additional motive. Id., paras. 78–79.
Id., para. 106. (This element of the Tribunal’s Judgment became the subject of a request by the Fund for interpretation of judgment. See infra Admissibility of Parties and Claims before the Administrative Tribunal.) Mr. “F” additionally maintained that the Fund had failed to comply with the requirement of Section 13.01 of GAO No. 16, which provides, in the case of abolition of position, that efforts shall be made to reassign the affected staff member to another position, consistent with his qualifications and the requirements of the Fund. The Tribunal concluded, upon reviewing the evidence, that fault was to be borne by both parties for “failure to energetically pursue such possibilities” and declined to award compensation to the Applicant on that ground. Id., para. 117.
Id., Decision. See infra Remedies.
Mr. “F”, para. 81. In Ms. “S”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 1995–1 (May 5, 1995), the Tribunal summarily dismissed, as beyond the reach of the Tribunal’s jurisdiction ratione temporis, an Application raising a claim of gender discrimination, as the complained of acts occurred prior to the effective date of the Statute. In Ms. “Y” (No. 2), Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2002–2 (March 5, 2002), the Tribunal confronted indirectly a claim of gender discrimination in reviewing conclusions under the Discrimination Review Exercise. See infra Cases arising from the Discrimination Review Exercise (“DRE”).
Mr. “F”, para. 81. See Mr. M. D’Aoust, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 1996–1 (April 2, 1996) (economist v. non-economist staff); Mr. “R”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2002–1 (March 5, 2002) (overseas Office Directors v. Resident Representatives); Ms. “G”, Applicant and Mr. “H”, Intervenor v. International Monetary Fund, Respondent, IMFAT Judgment No. 2002–3 (December 18, 2002) (Lawful Permanent Residents v. G-4 visa holders).
Mr. “F”, para. 50. Compare Mr. “F” with Mr. “R”, para. 47 and Ms. “G” para. 79 (applying “rational nexus” test to resolve claims of alleged discrimination in allocation of differing benefits to different categories of Fund staff).
The “N Rules” form part of the Rules and Regulations of the International Monetary Fund, supplementing the Articles of Agreement and By-Laws adopted by the Board of Governors. See Mr. “F”, note 15.
N-2. Subject to Rule N-1 above, the employment, classification, promotion and assignment of persons on the staff of the Fund shall be made without discriminating against any person because of sex, race, creed, or nationality. Adopted as N-1 September 25, 1946, amended June 22, 1979.
Id., paras. 83–84 and note 16.
Id., para. 90.
Id., quoting Discrimination Policy (July 3, 2003).
Mr. “F”, para. 93.
“Harassment, unfair treatment, abuse of power, and favoritism are also separate from discrimination, but they can all become discriminatory if they develop into a pattern and systematically address certain individuals or groups of individuals and have an impact on employees’ performance, development, career opportunities, and career progress.”
In two subsequent Judgments, the Tribunal was to distinguish the harassment complained of by Mr. “F” from allegations of harassment unrelated to discriminatory animus. See Ms. “BB”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2007–4 (May 23, 2007), paras. 73–77; Mr. “DD”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2007–8 (November 16, 2007), paras. 67–70.
Policy on Harassment, January 1995; Staff Bulletin No. 99/15 Harassment – Policy and Guidance to Staff, June 18, 1999, quoted in Mr. “F”, para. 91.
Mr. “F”, para. 100.
Id., para. 101.
Id., para. 100.
Id., para. 101.
Id., Decision. See infra Remedies.
Ms. “W”, para. 66 and note 23; Ms. “Z”, para. 49 and note 27, citing Ms. “Y” (No. 2).
Ms. “W”, paras. 91–102; Ms. “Z”, paras. 79–112.
Ms. “W”, para. 102.
Ms. “W”, paras. 103–113; Ms. “Z”, paras. 113–116.
Ms. “W”, para. 90; Ms. “Z”, para. 76. The Applicants had challenged such matters as the composition of the review teams and the alleged influence of the Administration Department in the review, as well as the methodology applied by the DRE review team in each case. See Ms. “W”, paras. 70–90; Ms. “Z”, paras. 53–76.
Ms. “W”, paras. 85–88.
Ms. “Z”, paras. 68–73.
Ms. “W”, paras. 18–21; Ms. “Z”, para. 74.
Ms. “W”, para. 98; Ms. “Z”, para. 109.
Ms. “W”, paras. 28, 112; Ms. “Z”, para. 115.
Mr. “F”, para. 106.
[T]he Tribunal’s view is that the fair and transparent procedures that govern or should govern the operations of the Fund require that a staff member whose position is abolished be given reasonable notice of that prospect. The staff member should be in a position when such a decision first is conveyed to him to set out any reasons that he or she may have to contest the propriety or equity of the abolition decision. [footnote omitted] The summary notice given to Mr. “F” in this case was hardly adequate for that purpose. Thus, on this ground, the Tribunal concludes that the Fund did not follow fair and reasonable procedures.
Mr. “F” (Order No. 2005–2), para. 12. The Fund maintained that interpretation of the Judgment by the Tribunal was appropriate in order that management could “‘. . . formulate corrective action that is consistent with the Tribunal’s views,’ asserting that such clarification will assist the Fund in complying with the Tribunal’s ruling in subsequent cases of abolition of position, thereby avoiding possible future litigation.” Id.
Id., para. 14.
Id., para. 6. Article XIII (2) provides: “Judgments shall be final, subject to Article XVI and Article XVII, and without appeal.” See generally Mr. “R” (No. 2), Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2004–1 (December 10, 2004).
Mr. “F” (Order No. 2005–2), para. 14.
Id., para. 16, quoting Report of the Executive Board, p. 13.
Id., para. 17.
In Baker, seven staff members filed identical Applications upon which the Tribunal rendered a single Judgment on the Fund’s Motion for Summary Dismissal.
Article II (1) provides in pertinent part:
1. The Tribunal shall be competent to pass judgment upon any application:
a. by a member of the staff challenging the legality of an administrative act adversely affecting him . . . .
Baker, para. 17, quoting Ms. “G”, para. 61.
Baker, para. 21.
Id., para. 20.
Regulatory decisions could be challenged by adversely affected staff within three months of their announcement or effective date. It is considered useful to permit the direct review of regulatory decisions within this limited time period. As a result, the question of legality, and any related issues (such as interpretation or application) could hopefully be firmly resolved before there had been considerable reliance on, or implementation of, the contested decision.
The pleadings resumed on the merits. Following a subsequent Executive Board decision further amending the compensation system, however, the Tribunal dismissed the Applications as moot. See Baker et al., Applicants v. International Monetary Fund, Respondent (Dismissal of the Applications as Moot), IMFAT Judgment No. 2006–4 (June 7, 2006). New Applications were filed contesting the later decision of the Executive Board, resulting in the Tribunal’s Judgment in Daseking-Frank et al., Applicants v. International Monetary Fund, Respondent, IMFAT Judgment No. 2007–1 (January 24, 2007).
Article V (1) provides: “When the Fund has established channels of administrative review for the settlement of disputes, an application may be filed with the Tribunal only after the applicant has exhausted all available channels of administrative review.”
Ms. “W”, para. 119.
Id., para. 118.
Ms. “Z”, para. 14, quoting Ms. “W”, para. 119. The same test was also applied in Ms. V. Shinberg (No. 2), Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2007–5 (November 16, 2007), paras. 85–89 (retaliation claim held inadmissible where it had not been given any measure of review through the Fund’s dispute resolution process).
Ms. “W”, para. 120.
The Tribunal in Mr. “F” . . . took cognizance of a pattern of conduct where separate administrative review had not been undertaken as to each individual act. The case of Mr. “F” may be distinguished, however, from the present case [of Ms. “W”] because the discriminatory conduct alleged by Mr. “F” had taken place prior to, rather than following, the initiation of administrative review procedures under GAO No. 31.
With respect to “individual decisions” of the IMF that are challenged before the Administrative Tribunal, the administrative review requirement of Article V of the Statute typically is exhausted through the Fund’s Grievance Committee, in which the Applicant’s claims and the Fund’s defenses are first presented in a forum that is advisory to the Fund’s management. The Grievance Committee renders a Recommendation and Report to the Fund’s Managing Director who then takes a final decision on the matter.
D’Aoust, para. 17.
Ms. “J”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2003–1 (September 30, 2003), para. 96. “The authority of the Administrative Tribunal to make both findings of fact and conclusions of law, and therefore to review de novo the legality of an administrative act of the Fund, stems from the Tribunal’s unique role as the sole judicial actor within the Fund’s dispute resolution system.” Id., para. 95. The Tribunal “. . . is not bound by the reasoning or recommendation of the Grievance Committee.” Mr. “V”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 1999–2 (August 13, 1999), para. 129.
D’Aoust , para. 17.
Ms. “Y” (No. 2), para. 40.
D’Aoust, para. 17.
Ms. “Z”, para. 117.
Id., para. 119.
Id., paras. 121–122.
Id., para. 120 and note 32.
The Tribunal may reject the request to the extent that it finds that the documents or other evidence requested are clearly irrelevant to the case, or that compliance with the request would be unduly burdensome or would infringe on the privacy of individuals. For purposes of assessing the issue of privacy, the Tribunal may examine in camera the documents requested.
If the Tribunal concludes that an application challenging the legality of an individual decision is well-founded, it shall prescribe the rescission of such decision and all other measures, whether involving the payment of money or otherwise, required to correct the effects of that decision.
Mr. “F”, para. 120, quoting Ms. “C”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 1997–1 (August 22, 1997), para. 44 (awarding the sum equivalent to six months salary for irregularities of process in the non-conversion of a fixed-term appointment).
Mr. “F”, para. 121.
Mr. “F”, para. 122 and Decision. The Tribunal’s Judgment did not apportion the award as between the two counts upon which Mr. “F” had prevailed.
If the Tribunal concludes that an application is well-founded in whole or in part, it may order that the reasonable costs incurred by the applicant in the case, including the cost of applicant’s counsel, be totally or partially borne by the Fund, taking into account the nature and complexity of the case, the nature and quality of the work performed, and the amount of the fees in relation to prevailing rates.
Mr. “F”, Applicant v. International Monetary Fund, Respondent (Assessment of compensable legal costs pursuant to Judgment No. 2005–1), IMFAT Order No. 2005–1 (April 18, 2005). In its Judgment in Mr. “F”, para. 124, the IMFAT also reaffirmed that a request for costs deriving from representation in proceedings antecedent to the Tribunal’s consideration of a case falls within the scope of the Tribunal’s remedial authority.