## j1999-1 ## Source details **Canonical URL:** [j1999-1](https://www.imf.org/-/media/files/imfat/j1999-1.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j1999-1.pdf.md) - [Structured JSON version](/-/media/files/imfat/j1999-1.pdf.json) --- ### Tribunal proceedings and procedural history - The Administrative Tribunal of the International Monetary Fund met on August 11 and 12, 1999. The Tribunal was composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Agustín Gordillo, Associate Judges. - Timetable and filings: - April 16, 1999: Applicant ("Mr. 'A'") filed an Application with the Administrative Tribunal. - April 19, 1999: Application transmitted to the Respondent in accordance with the Tribunal’s Rules of Procedure. - April 22, 1999: Office of the Registrar issued a summary of the Application within the Fund pursuant to Rule XIV, para. 4. - May 18, 1999: Respondent filed a Motion for Summary Dismissal under Rule XII, seeking dismissal for lack of jurisdiction under Article II, para. 1 and para. 2 a, b, and c. - May 19, 1999: Motion transmitted to Applicant. - June 18, 1999: Applicant filed an Objection to the Motion for Summary Dismissal (Rule XII, para. 5 allows 30 days to object). - August 2, 1999: Tribunal decided not to hold oral proceedings requested by Applicant because Rule XIII, para. 1 condition that they be “necessary for the disposition of the case” was not met. - Procedural limitations: - Under Rule XII, para. 2, a Motion for Summary Dismissal suspends the period for answering the Application until the motion is acted on by the Tribunal; accordingly, consideration is confined to jurisdictional issues and substantive aspects are referred to only as necessary for disposition of jurisdictional issues. ### Factual background of the employment relationship - Engagement and contract terms: - Initial engagement: consultant under the Technical Assistance Program for a two-year period commencing in January 1990. - Letter of appointment stated: “You will not be a staff member of the Fund and will not be eligible for any benefits other than those specified in this letter.” It also stated: “This appointment can be terminated by you or the Fund on one month’s notice, or by mutual agreement.” - Contract renewals: the basic contract was renewed several times over a continuous period of nine years, with increases in remuneration but unchanged core terms. - Specific contractual provisions: - Same working hours and accrue annual leave on the same basis as a regular staff member. - Entitlement, on the same terms as regular staff, to participate in the Fund’s medical benefits plan; to receive employer contributions to medical and group life insurance plans; and to be eligible for spouse and dependency allowances, travel allowance, and travel insurance coverage. - Remuneration stated on the basis of annual gross salary; contract included proviso that the Fund would not reimburse Applicant for any national, state or other taxes arising in respect of his remuneration. - Departmental assignments and functions: - Assigned to Department “1” until September 1993; duties included heading missions; administering technical assistance for member countries; and commenting on staff papers on behalf of the Department. Department “1”’s Director stated: “Mr. [“A”] performed essentially the same work as the regular staff members who were Advisors in the Department during his tenure...” - Reassigned to Department “2” in October 1993; served there until contract expiry in February 1999. In Department “2”: - Served as the only consultant among five members of his profession in his unit. - Supervising official: “Mr.[ ‘A’]’s work was materially the same as work done by other headquarters based full-time consultants and regular IMF staff members alike, on [Applicant’s area of expertise], including going on missions to IMF member countries and providing advice to their government or central bank officials, alone or together with other IMF staff, preparing mission reports and memoranda . . ., and commenting on behalf of [Department ‘2’] on papers prepared by staff of other IMF Departments.” - Colleagues: Applicant “performed essentially the same function as his colleagues who are regular staff members” and acted “in a manner indistinguishable” from these staff; another colleague described him as a “fully integrated member of the Department”. - Expectations and termination: - Applicant alleges recruitment assurances that satisfactory performance could lead to conversion to regular staff after the initial two-year period; subsequent representations included a need to continue one more year and suggestions to pursue “mobility” within the organization. - Applicant alleges prospect of promotion to a supervisory position following an anticipated retirement in 1998; in March 1998 he was allegedly told that the position would not be filled and future vacancies would be lower level. - August 1998: Department Head allegedly informed Applicant of intent to end contractual employment. - September 14, 1998: Applicant received an extension noting “this will be the final extension of your contract.” - Final contract expiry: February 26, 1999. - Internal remedies and prior administrative steps: - January 14, 1999: Applicant wrote to the Fund’s Director of Administration asking that the Fund “formally recognize my status as regular staff.” Director of Administration replied on January 25, 1999 that (1) grievance procedures did not apply to contractual employees; and (2) arbitration for contractual employees would be limited to contract obligations and would not cover a decision not to extend employment. - February 4, 1999: Applicant requested Managing Director agree to submit dispute directly to the Administrative Tribunal pursuant to Article V, para. 4; request denied on February 24, 1999. - February 25, 1999: Applicant filed submission with the Fund’s Grievance Committee challenging non-renewal and seeking conversion to regular staff. March 1, 1999: Grievance Committee Chairman replied that GAO No. 31 grievance procedures are not available to contractual employees and that a decision not to extend a contract does not fall within the Fund’s arbitration procedures. ### Applicant’s principal contentions (merits and jurisdiction) - Merits contentions: - The Fund’s categorization of Applicant’s employment status as a “contractual employee” is arbitrary and belies the actual nature of his work. - Termination of the employment relationship is contrary to the Fund’s Employment Guidelines on staff appointments; Applicant’s position supported the basic institutional mission, required skills that do not change dramatically over a short period, and required continuity—criteria that, Applicant contends, indicate a regular staff appointment rather than a contractual appointment. - Principles of international administrative law require that international organizations not classify as an independent contractor an individual doing the work of an employee when that classification does not reflect the actual relationship. - The Fund created and disappointed expectations of continued employment on which Applicant relied to his detriment. - Equity considerations: expiration of contractual appointment and loss of associated medical insurance are a particular hardship given Applicant must provide coverage for an ailing family member. - Relief sought by Applicant: - conversion of status to regular staff as of January 2, 1993; - “reinstatement” as a regular staff member with all attendant rights, privileges and benefits; - the right to seek another Fund position if reinstatement in Department “2” is refused; - severance pay “if no other position materializes”; - retroactive payment for long-term service annual leave days; - participation in the Fund’s retirement program when he departs from the Fund; - such other relief as the Tribunal deems appropriate. - Jurisdictional contentions: - The Fund’s classification as contractual was an arbitrary administrative act that should not determine the Tribunal’s jurisdiction; to hold otherwise would presume as true the very fact at issue. - If the Tribunal declines jurisdiction, Applicant will have no opportunity for review on the merits by any impartial adjudicatory body. - The doctrine of audi alteram partem (every disputant is entitled to be heard), incorporated into the Fund’s internal law, requires that the Tribunal exercise jurisdiction over Applicant’s claim. ### Respondent’s principal contentions (Motion for Summary Dismissal) - Jurisdictional objections: - The Application should be dismissed as irreceivable because Article II, para. 2.c.(i) limits Tribunal competence to “any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff”; Applicant’s letter of appointment explicitly provided that he would not be a staff member. - The Tribunal’s jurisdiction is limited to challenges to decisions “taken in the administration of the staff of the Fund” (Article II, para. 2.a.), and therefore excludes judicial interference with recruitment and selection decisions. - The IMFAT is a tribunal of limited jurisdiction under Article III and has no powers beyond those conferred by the Statute; it lacks general jurisdiction based on equity or other grounds not provided by the Statute. - The remedy sought—retroactive appointment to a regular staff position—is not contemplated by the IMFAT Statute and would undermine the Fund’s employment regime. - The dual employment scheme of contractual and regular staff exists for legitimate organizational reasons, providing flexibility for deployment of human resources. - Applicant is bound by the terms and conditions of his letter of appointment as a contractual employee; the Fund must be able to rely on written and agreed terms of employment contracts. ### Consideration of the issues of the case — Categories of Fund employment - Three principal categories of employment exist within the Fund: staff appointments (both regular and fixed-term); contractual appointments; and vendor arrangements. - The Fund adopted Guidelines in 1989 and again in January of the year of the record to clarify allocation of functions among staff members, contractual employees and vendor personnel. - The 1989 Guidelines distinguish between staff and contractual appointments: - Positions normally filled by staff members: those carrying out the basic institutional mission of the Fund; those supporting that mission and requiring skills that will not change dramatically over a short period of time and for which there is a need for continuity of staff; those in which the individual is required to act on behalf of the Fund; and those involving supervisory responsibilities. - Positions normally to be filled on a contractual basis: those in which the Fund has little or no expertise; positions where the skills required are likely to change dramatically over time and continuity within the staff performing these tasks is not critical; positions in which services are needed for only a relatively short period of time. - According to the 1989 Guidelines, contractual appointees and vendor personnel generally should not perform the same tasks as staff members, except on a short-term basis or where individual circumstances warrant. - The Fund’s Motion for Summary Dismissal characterizes the Guidelines as guidance to the Recruitment Division and Fund departments that do not give rise to legal entitlements for individuals. The Motion echoes the Guidelines’ principle: “Appointments to the regular staff are intended to meet the long-term needs of the organization; in comparison, contractual employment is more flexible, in order to meet a particular work requirement, often in a specialized area for which there may be no long-term need.” - The Fund notes: “. . . staff members and contractual employees are both considered as employees of the Fund. . . .” - Differences between staff and contractual employment noted by the Fund include: - Recruitment: no constraints regarding geographical distribution of contractuals; contractual employees are not subject to a competitive appointment process. - Compensation: contractual employees are afforded greater flexibility and are exempt from the salary structure that governs staff remuneration. - Rules and restrictions: staff members are subject to the Fund’s N Rules (e.g., restrictions on political activity and outside employment), whereas contractual employees are not. - Dispute resolution: contractual employees have recourse to an arbitration procedure; staff members have access to the grievance procedure and the Administrative Tribunal. - The Fund asserts that in Department “2” Applicant provided technical assistance (“TA”) as a contractual employee because the long-term need for these functions and the particular specialties in question were uncertain. - The Fund observes that contractual employees performing TA services in Department “2” do not receive the same training, supervisory authority, or career development opportunities as staff. ### Policy development and systemic concerns - The allocation of personnel functions among the various categories of Fund employment has been controversial and is undergoing revision. - Adoption of the 1989 Guidelines and the revised Policy on Categories of Employment approved January 20, 1999 by the Executive Board were prompted by concerns that contractual and vendor personnel may be performing functions for which there is a long-term need and that should be performed by Fund staff. - The Fund acknowledges “anomalies in the current system of contractual employment” but contends that such difficulties should be addressed systemically rather than through individual litigation. - The 1999 revised Policy limits the cumulative duration of contractual appointments to a four-year maximum and states that functions expected to be needed for two years or more are normally to be performed by employees on staff appointments, while maintaining flexibility for headquarters-based TA experts where individual circumstances may justify hiring on a contractual basis for more than two years. ### Jurisdiction ratione personæ — Applicant’s standing before the Administrative Tribunal - Article II of the IMFAT Statute prescribes the Tribunal’s jurisdiction ratione personæ: - The Tribunal is competent to pass judgment upon any application by a member of the staff challenging the legality of an administrative act adversely affecting him. - For purposes of the Statute, “member of the staff” means: - (i) any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff; - (ii) any current or former assistant to an Executive Director; and - (iii) any successor in interest to a deceased member of the staff defined in (i) or (ii) above to the extent that he is entitled to assert a right of such staff member against the Fund. - Applicant’s contract expressly provided: “You will not be a staff member of the Fund and will not be eligible for any benefits other than those specified in this letter.” - The Executive Board’s Report accompanying the Statute: “Nor would persons employed under contract to the Fund have access to the tribunal.” The drafters’ legislative history reflects an intentional exclusion of contractual employees from the Tribunal’s jurisdiction ratione personæ, recognizing a separate dispute settlement mechanism for contractual employees whose employment is governed by contract terms rather than generally applicable staff regulations. - Applicant requests the Tribunal to look beyond his letter of appointment to find he was a “de facto” staff member. ### Jurisdiction ratione materiæ — Subject-matter limits of the Tribunal - Article II limits the IMFAT’s subject-matter jurisdiction to challenges by a staff member to “the legality of an administrative act adversely affecting him.” - The Statute defines “administrative act” as “any individual or regulatory decision taken in the administration of the staff of the Fund.” - The Executive Board’s Report states that this definition is intended to encompass all decisions affecting the terms and conditions of employment at the Fund, including those related to career, benefits, or other aspects of Fund appointment, and the staff regulations set forth in the N Rules. - The limits on jurisdiction ratione personæ and ratione materiæ are intertwined: - “Administrative acts” are restricted to those taken in the administration of the “staff”; actions with respect to non-staff (e.g., contractuals) are outside the Tribunal’s jurisdiction ratione materiæ. - The challenged administrative act must adversely affect the “member of the staff” bringing the challenge. - The Executive Board’s Report states: “The statute would not allow unsuccessful candidates to the staff to bring claims before the tribunal.” The Fund argues that the Statute’s jurisdictional provisions preclude judicial interference with recruitment and selection of staff and that staff appointments are not within the Tribunal’s competence ratione materiæ. - Precedent: In Mr. M. D’Aoust v. IMF, Judgment No. 1996-1 (April 2, 1996), the Tribunal held that decisions preliminary to an applicant’s becoming a staff member may be within the Tribunal’s competence ratione materiæ if the challenged act, once offer is accepted and the person becomes a staff member, affects him in his capacity as a member of the staff. By contrast, Mr. “A” has never become a member of the Fund’s staff. - Distinction from other tribunals: Applicant’s case differs from the ADBAT decision in which the applicant had already become a staff member before asserting entitlement to staff benefits for a prior period. ### The Tribunal as a tribunal of limited jurisdiction and institutional separation of powers - International administrative tribunals are tribunals of limited jurisdiction and may not exercise powers beyond those granted by their statutes. Article III of the IMFAT Statute: “The Tribunal shall not have any powers beyond those conferred under this Statute. . . .” - Article IV requires issues concerning the Tribunal’s competence to be settled “in accordance with this Statute,” empowering the Tribunal to determine its competence but to “interpret but not expand” its statutory authority. - Article III third sentence preserves distribution of power among the Administrative Tribunal and the Fund’s legislative and executive organs and provides that nothing in the Statute shall limit or modify the powers of Fund organs under the Articles of Agreement, including their lawful exercise of discretionary authority in taking individual or regulatory decisions (such as establishing or amending terms and conditions of employment). The Tribunal must respect the mandate of legislative or executive organs to formulate employment policies appropriate to the needs and purposes of the organization. ### Comparative jurisprudence and patterns - Instances where tribunals examined merits to decide jurisdiction: Joel B. Justin v. The World Bank, WBAT Decision No. 15 (1984); In re Labarthe, ILOAT Judgment No. 307 (1977); Camargo v. The Secretary-General of the United Nations, UNAT Judgement No. 96 (1965). - Instances where tribunals enforced contractual language and denied jurisdiction or limited remedies: In re Privitera, ILOAT Judgment No. 75 (1964); In re Darricades, ILOAT Judgment No. 67 (1962); In re Amezketa, ILOAT Judgment No. 1034 (1990); Teixeira v. The Secretary-General of the United Nations, UNAT Judgement No. 233 (1978). - Instances where tribunals looked beyond contract language and exercised jurisdiction broadly: In re Bustos, ILOAT Judgment No. 701 (1985) — series of short-term contracts renewed over 11 years were held to form a single contract of indefinite duration. - Relevant considerations in adjudicating jurisdictional questions where contractual status is disputed: - Whether the issue of contractual status is essentially identical to the merits (congruence of jurisdictional question and merits). - Whether factual evidence supports that the contractual form conceals the true nature of the relationship (e.g., long continuity, functional integration, or domination by the stronger party). - Whether the contract explicitly and unambiguously denies staff status and whether the applicant knowingly accepted those terms. - Whether national/institutional staff regulations or specific statutory definitions explicitly restrict tribunal competence. - Whether remedies sought exceed tribunal’s powers (e.g., tribunal cannot retroactively reform contract terms even when finding a continuous employment relationship). ### Policy developments and practical implications - Policy on Categories of Employment approved January 20, 1999 by the Executive Board: - “Functions that are needed for two years or more would be performed by employees on staff appointments. Functions that are expected to be performed for less than two years would be performed by contractual employees. Contractual appointments are used only for short-term employment, and can be extended if needed to a maximum cumulative period of four years. Extensions beyond two years require the approval of the Director of Administration.” - The Policy mirrors a similar 1989 Policy except that the 1989 Policy did not prescribe the two-year and four-year limitations embodied in the 1999 Policy. - Practical effects noted: - Had the 1999 Policy been in force and implemented during Mr. “A”’s tenure, the dispute likely would not have arisen; for headquarters-based technical assistance experts the 1999 Policy retains an option for “long-term contracts when such an approach is justified” and states the Policy “may need to be applied flexibly” (Para. 99). - Mr. “A” retains maintenance of group medical coverage for eighteen months after contract expiration without financial contribution by the Fund (Para. 99). - The Tribunal expressed disquiet and concern at a practice that may leave employees of the Fund without judicial recourse and recommended that policy-making organs of the Fund consider means of providing contractual employees with appropriate avenues of judicial or arbitral resolution, notably for disputes over whether functions meet criteria for staff appointment rather than contractual status (Para. 97). ### Tribunal conclusions and dispositive findings - Determinations (verbatim): 1. The Administrative Tribunal does not have jurisdiction to decide whether the Fund acted illegally when it entered into a series of contracts for contractual employment of the Applicant, allegedly in violation of its 1989 Employment Guidelines and principles of international administrative law, because Applicant apparently performed the same work as regular staff under contracts renewed several times in the course of nine years and then allowed to expire. 2. The Administrative Tribunal does not have jurisdiction ratione personæ over Applicant’s complaint since his letter of appointment stated that he “will not be a staff member of the Fund” and the Administrative Tribunal’s jurisdiction is restricted by its Statute to applications brought by a “member of the staff” (Art. II, para. 1.a.), defined as “any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff” (Art. II, para. 2.c.(i)). 3. The Administrative Tribunal does not have jurisdiction ratione materiæ over Applicant’s claim; the Fund’s decision to enter into a contract or series of contracts with an individual to serve as a contractual employee, rather than as a member of the staff, is not a “decision taken in the administration of the staff” (Art. II, para. 2.a.). 4. Equitable or other considerations do not enable the Administrative Tribunal to extend its jurisdiction to claims falling outside the express language of Article II of its Statute, when Articles III, IV, and XIX limit its powers to those conferred by the Statute. 5. The Administrative Tribunal is not entitled to exercise jurisdiction in this case because otherwise Applicant’s complaint may escape examination by an impartial adjudicatory body. The principle of audi alteram partem does not authorize or require this Administrative Tribunal to exercise jurisdiction in this case. 6. The Administrative Tribunal need not examine the merits of Applicant’s claim in order to decide whether it has jurisdiction in this case. It may base that decision on the language of Applicant’s letter of appointment and the Statutory provisions governing jurisdiction. (Paras. 100–6; Decision) - Final disposition: - The Administrative Tribunal unanimously grants the Fund’s Motion for Summary Dismissal. - Signatories recorded: Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Agustín Gordillo, Associate Judge; Celia Goldman, Acting Registrar. - Washington, D.C., August 12, 1999. *Administrative Tribunal of the International Monetary Fund — Judgment: Applicant v. International Monetary Fund; Decision and Reasons (unanimous), Washington, D.C., August 12, 1999.* ### Introduction ### Introduction ### Tribunal proceedings and procedural history - The Administrative Tribunal of the International Monetary Fund met on August 11 and 12, 1999. The Tribunal was composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Agustín Gordillo, Associate Judges. - Timetable and filings: - April 16, 1999: Applicant ("Mr. 'A'") filed an Application with the Administrative Tribunal. - April 19, 1999: Application transmitted to the Respondent in accordance with the Tribunal’s Rules of Procedure. - April 22, 1999: Office of the Registrar issued a summary of the Application within the Fund pursuant to Rule XIV, para. 4. - May 18, 1999: Respondent filed a Motion for Summary Dismissal under Rule XII, seeking dismissal for lack of jurisdiction under Article II, para. 1 and para. 2 a, b, and c. - May 19, 1999: Motion transmitted to Applicant. - June 18, 1999: Applicant filed an Objection to the Motion for Summary Dismissal (Rule XII, para. 5 allows 30 days to object). - August 2, 1999: Tribunal decided not to hold oral proceedings requested by Applicant because Rule XIII, para. 1 condition that they be “necessary for the disposition of the case” was not met. - Procedural limitations: - Under Rule XII, para. 2, a Motion for Summary Dismissal suspends the period for answering the Application until the motion is acted on by the Tribunal; accordingly, consideration is confined to jurisdictional issues and substantive aspects are referred to only as necessary for disposition of jurisdictional issues. ### Factual background of the employment relationship - Engagement and contract terms: - Initial engagement: consultant under the Technical Assistance Program for a two-year period commencing in January 1990. - Letter of appointment stated: “You will not be a staff member of the Fund and will not be eligible for any benefits other than those specified in this letter.” It also stated: “This appointment can be terminated by you or the Fund on one month’s notice, or by mutual agreement.” - Contract renewals: the basic contract was renewed several times over a continuous period of nine years, with increases in remuneration but unchanged core terms. - Specific contractual provisions: - Same working hours and accrue annual leave on the same basis as a regular staff member. - Entitlement, on the same terms as regular staff, to participate in the Fund’s medical benefits plan; to receive employer contributions to medical and group life insurance plans; and to be eligible for spouse and dependency allowances, travel allowance, and travel insurance coverage. - Remuneration stated on the basis of annual gross salary; contract included proviso that the Fund would not reimburse Applicant for any national, state or other taxes arising in respect of his remuneration. - Departmental assignments and functions: - Assigned to Department “1” until September 1993; duties included heading missions; administering technical assistance for member countries; and commenting on staff papers on behalf of the Department. Department “1”’s Director stated: “Mr. [“A”] performed essentially the same work as the regular staff members who were Advisors in the Department during his tenure...” - Reassigned to Department “2” in October 1993; served there until contract expiry in February 1999. In Department “2”: - Served as the only consultant among five members of his profession in his unit. - Supervising official: “Mr.[ ‘A’]’s work was materially the same as work done by other headquarters based full-time consultants and regular IMF staff members alike, on [Applicant’s area of expertise], including going on missions to IMF member countries and providing advice to their government or central bank officials, alone or together with other IMF staff, preparing mission reports and memoranda . . ., and commenting on behalf of [Department ‘2’] on papers prepared by staff of other IMF Departments.” - Colleagues: Applicant “performed essentially the same function as his colleagues who are regular staff members” and acted “in a manner indistinguishable” from these staff; another colleague described him as a “fully integrated member of the Department”. - Expectations and termination: - Applicant alleges recruitment assurances that satisfactory performance could lead to conversion to regular staff after the initial two-year period; subsequent representations included a need to continue one more year and suggestions to pursue “mobility” within the organization. - Applicant alleges prospect of promotion to a supervisory position following an anticipated retirement in 1998; in March 1998 he was allegedly told that the position would not be filled and future vacancies would be lower level. - August 1998: Department Head allegedly informed Applicant of intent to end contractual employment. - September 14, 1998: Applicant received an extension noting “this will be the final extension of your contract.” - Final contract expiry: February 26, 1999. - Internal remedies and prior administrative steps: - January 14, 1999: Applicant wrote to the Fund’s Director of Administration asking that the Fund “formally recognize my status as regular staff.” Director of Administration replied on January 25, 1999 that (1) grievance procedures did not apply to contractual employees; and (2) arbitration for contractual employees would be limited to contract obligations and would not cover a decision not to extend employment. - February 4, 1999: Applicant requested Managing Director agree to submit dispute directly to the Administrative Tribunal pursuant to Article V, para. 4; request denied on February 24, 1999. - February 25, 1999: Applicant filed submission with the Fund’s Grievance Committee challenging non-renewal and seeking conversion to regular staff. March 1, 1999: Grievance Committee Chairman replied that GAO No. 31 grievance procedures are not available to contractual employees and that a decision not to extend a contract does not fall within the Fund’s arbitration procedures. ### Applicant’s principal contentions (merits and jurisdiction) - Merits contentions: - The Fund’s categorization of Applicant’s employment status as a “contractual employee” is arbitrary and belies the actual nature of his work. - Termination of the employment relationship is contrary to the Fund’s Employment Guidelines on staff appointments; Applicant’s position supported the basic institutional mission, required skills that do not change dramatically over a short period, and required continuity—criteria that, Applicant contends, indicate a regular staff appointment rather than a contractual appointment. - Principles of international administrative law require that international organizations not classify as an independent contractor an individual doing the work of an employee when that classification does not reflect the actual relationship. - The Fund created and disappointed expectations of continued employment on which Applicant relied to his detriment. - Equity considerations: expiration of contractual appointment and loss of associated medical insurance are a particular hardship given Applicant must provide coverage for an ailing family member. - Relief sought by Applicant: - conversion of status to regular staff as of January 2, 1993; - “reinstatement” as a regular staff member with all attendant rights, privileges and benefits; - the right to seek another Fund position if reinstatement in Department “2” is refused; - severance pay “if no other position materializes”; - retroactive payment for long-term service annual leave days; - participation in the Fund’s retirement program when he departs from the Fund; - such other relief as the Tribunal deems appropriate. - Jurisdictional contentions: - The Fund’s classification as contractual was an arbitrary administrative act that should not determine the Tribunal’s jurisdiction; to hold otherwise would presume as true the very fact at issue. - If the Tribunal declines jurisdiction, Applicant will have no opportunity for review on the merits by any impartial adjudicatory body. - The doctrine of audi alteram partem (every disputant is entitled to be heard), incorporated into the Fund’s internal law, requires that the Tribunal exercise jurisdiction over Applicant’s claim. ### Respondent’s principal contentions (Motion for Summary Dismissal) - Jurisdictional objections: - The Application should be dismissed as irreceivable because Article II, para. 2.c.(i) limits Tribunal competence to “any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff”; Applicant’s letter of appointment explicitly provided that he would not be a staff member. - The Tribunal’s jurisdiction is limited to challenges to decisions “taken in the administration of the staff of the Fund” (Article II, para. 2.a.), and therefore excludes judicial interference with recruitment and selection decisions. - The IMFAT is a tribunal of limited jurisdiction under Article III and has no powers beyond those conferred by the Statute; it lacks general jurisdiction based on equity or other grounds not provided by the Statute. - The remedy sought—retroactive appointment to a regular staff position—is not contemplated by the IMFAT Statute and would undermine the Fund’s employment regime. - The dual employment scheme of contractual and regular staff exists for legitimate organizational reasons, providing flexibility for deployment of human resources. - Applicant is bound by the terms and conditions of his letter of appointment as a contractual employee; the Fund must be able to rely on written and agreed terms of employment contracts. *Administrative Tribunal of the International Monetary Fund, Introduction (meeting held August 11 and 12, 1999).* ### 35. The Fund’s Employment Guidelines on categories of employment are guidelines to ### 35. The Fund’s Employment Guidelines on categories of employment are guidelines to ### Consideration of the issues of the case — Categories of Fund employment - Three principal categories of employment exist within the Fund: staff appointments (both regular and fixed-term); contractual appointments; and vendor arrangements. - Applicant (Mr. “A”) complains that although he was employed on a contractual basis, the nature and continuity of his work indicate that he should have held a staff appointment of indefinite duration. - The Fund adopted Guidelines in 1989 and again in January of the year of the record to clarify allocation of functions among staff members, contractual employees and vendor personnel. - The 1989 Guidelines distinguish between staff and contractual appointments: - Positions normally filled by staff members: those carrying out the basic institutional mission of the Fund; those supporting that mission and requiring skills that will not change dramatically over a short period of time and for which there is a need for continuity of staff; those in which the individual is required to act on behalf of the Fund; and those involving supervisory responsibilities. - Positions normally to be filled on a contractual basis: those in which the Fund has little or no expertise; positions where the skills required are likely to change dramatically over time and continuity within the staff performing these tasks is not critical; positions in which services are needed for only a relatively short period of time. - According to the 1989 Guidelines, contractual appointees and vendor personnel generally should not perform the same tasks as staff members, except on a short-term basis or where individual circumstances warrant. - The Fund’s Motion for Summary Dismissal characterizes the Guidelines as guidance to the Recruitment Division and Fund departments that do not give rise to legal entitlements for individuals. The Motion echoes the Guidelines’ principle: - “Appointments to the regular staff are intended to meet the long-term needs of the organization; in comparison, contractual employment is more flexible, in order to meet a particular work requirement, often in a specialized area for which there may be no long-term need.” - The Fund also notes that “. . . staff members and contractual employees are both considered as employees of the Fund. . . .” - Differences between staff and contractual employment noted by the Fund include: - Recruitment: no constraints regarding geographical distribution of contractuals; contractual employees are not subject to a competitive appointment process. - Compensation: contractual employees are afforded greater flexibility and are exempt from the salary structure that governs staff remuneration. - Rules and restrictions: staff members are subject to the Fund’s N Rules (e.g., restrictions on political activity and outside employment), whereas contractual employees are not. - Dispute resolution: contractual employees have recourse to an arbitration procedure; staff members have access to the grievance procedure and the Administrative Tribunal. - The Fund asserts that in Department “2” Applicant provided technical assistance (“TA”) as a contractual employee because the long-term need for these functions and the particular specialties in question were uncertain; contractual employment permits flexibility to adjust to changes in demand for TA services by member countries. - The Fund observes that contractual employees performing TA services in Department “2” do not receive the same training, supervisory authority, or career development opportunities as staff. ### Policy development and systemic concerns - The allocation of personnel functions among the various categories of Fund employment has been controversial and is undergoing revision. - Adoption of the 1989 Guidelines and the revised Policy on Categories of Employment approved January 20, 1999 by the Executive Board were prompted by concerns that contractual and vendor personnel may be performing functions for which there is a long-term need and that should be performed by Fund staff. - The Fund acknowledges “anomalies in the current system of contractual employment” but contends that such difficulties should be addressed systemically rather than through individual litigation. - The 1999 revised Policy limits the cumulative duration of contractual appointments to a four-year maximum and states that functions expected to be needed for two years or more are normally to be performed by employees on staff appointments, while maintaining flexibility for headquarters-based TA experts where individual circumstances may justify hiring on a contractual basis for more than two years. ### Jurisdiction ratione personæ — Applicant’s standing before the Administrative Tribunal - The Fund moves for summary dismissal on grounds that as a former contractual employee, Mr. “A” lacks standing before the Administrative Tribunal and is not within the Tribunal’s jurisdiction ratione personæ. - Article II of the IMFAT Statute prescribes the Tribunal’s jurisdiction ratione personæ: - The Tribunal is competent to pass judgment upon any application by a member of the staff challenging the legality of an administrative act adversely affecting him. - For purposes of the Statute, “member of the staff” means: - (i) any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff; - (ii) any current or former assistant to an Executive Director; and - (iii) any successor in interest to a deceased member of the staff defined in (i) or (ii) above to the extent that he is entitled to assert a right of such staff member against the Fund. - Applicant’s contract expressly provided: “You will not be a staff member of the Fund and will not be eligible for any benefits other than those specified in this letter.” - The Fund points to the Executive Board’s Report accompanying the Statute: “Nor would persons employed under contract to the Fund have access to the tribunal.” The drafters’ legislative history reflects an intentional exclusion of contractual employees from the Tribunal’s jurisdiction ratione personæ, recognizing a separate dispute settlement mechanism for contractual employees whose employment is governed by contract terms rather than generally applicable staff regulations. - The Statute’s reliance on the language of the letter of appointment to define “member of the staff” leaves little room to doubt whether a particular individual is or is not a staff member. Applicant requests the Tribunal to look beyond his letter of appointment to find he was a “de facto” staff member. ### Jurisdiction ratione materiæ — Subject-matter limits of the Tribunal - Respondent also contends the Application should be dismissed as falling outside the Tribunal’s jurisdiction ratione materiæ. - Article II limits the IMFAT’s subject-matter jurisdiction to challenges by a staff member to “the legality of an administrative act adversely affecting him.” - The Statute defines “administrative act” as “any individual or regulatory decision taken in the administration of the staff of the Fund.” - The Executive Board’s Report states that this definition is intended to encompass all decisions affecting the terms and conditions of employment at the Fund, including those related to career, benefits, or other aspects of Fund appointment, and the staff regulations set forth in the N Rules. - The limits on jurisdiction ratione personæ and ratione materiæ are intertwined: - “Administrative acts” are restricted to those taken in the administration of the “staff”; actions with respect to non-staff (e.g., contractuals) are outside the Tribunal’s jurisdiction ratione materiæ. - The challenged administrative act must adversely affect the “member of the staff” bringing the challenge. - The Executive Board’s Report states: “The statute would not allow unsuccessful candidates to the staff to bring claims before the tribunal.” The Fund argues that the Statute’s jurisdictional provisions preclude judicial interference with recruitment and selection of staff and that staff appointments are not within the Tribunal’s competence ratione materiæ. - Precedent: In Mr. M. D’Aoust v. IMF, Judgment No. 1996-1 (April 2, 1996), the Tribunal held that decisions preliminary to an applicant’s becoming a staff member may be within the Tribunal’s competence ratione materiæ if the challenged act, once offer is accepted and the person becomes a staff member, affects him in his capacity as a member of the staff. By contrast, Mr. “A” has never become a member of the Fund’s staff. - Distinction from other tribunals: Applicant’s case differs from the ADBAT decision in which the applicant had already become a staff member before asserting entitlement to staff benefits for a prior period. ### The Tribunal as a tribunal of limited jurisdiction and institutional separation of powers - International administrative tribunals are tribunals of limited jurisdiction and may not exercise powers beyond those granted by their statutes. Article III of the IMFAT Statute: “The Tribunal shall not have any powers beyond those conferred under this Statute. . . .” - The Executive Board’s Report explains that the Tribunal’s powers are limited and that the statutory provision defining competence is simultaneously a prohibition on exercising competence beyond that conferred. - Article IV requires issues concerning the Tribunal’s competence to be settled “in accordance with this Statute,” empowering the Tribunal to determine its competence but to “interpret but not expand” its statutory authority. - Article III third sentence preserves distribution of power among the Administrative Tribunal and the Fund’s legislative and executive organs and provides that nothing in the Statute shall limit or modify the powers of Fund organs under the Articles of Agreement, including their lawful exercise of discretionary authority in taking individual or regulatory decisions (such as establishing or amending terms and conditions of employment). The Tribunal must respect the mandate of legislative or executive organs to formulate employment policies appropriate to the needs and purposes of the organization. _International Monetary Fund_ ### 59. That the Administrative Tribunal may not exercise powers beyond those conferred on ### 59. That the Administrative Tribunal may not exercise powers beyond those conferred on ### Jurisdictional limits and Statutory amendment - The IMFAT’s Statute was adopted by the Board of Governors of the Fund (Resolution No. 48-1, Establishment of the Administrative Tribunal of the International Monetary Fund). - Article XIX: “This Statute may be amended only by the Board of Governors of the Fund.” - Accompanying commentary: the Board of Governors “...remain[s] open ... to amend or abrogate the statute of the tribunal after its establishment. In this fashion, the nature of the judicial function performed by the tribunal could be limited or altered with respect to future cases.” (Report of the Executive Board, p. 41.) ### Principal issue in the case - Core question: whether the nature of Applicant’s allegation on the merits— that he was illegally classified as a contractual employee when he should have been hired as a member of the staff of the Fund—requires the Administrative Tribunal to exercise jurisdiction despite statutory jurisdictional limits. - Statutory definition at issue: “member of the staff” defined as “any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff” (Art. II, para. 1.a.). - Applicant’s letter of appointment expressly states that he “will not be a staff member of the Fund”. - Applicant’s position: the Tribunal should look beyond the language of the letter to determine de facto staff status and not allow the Fund’s allegedly illegal classification to control jurisdiction. ### Procedural alternatives before the Tribunal - Two alternatives presented to the Tribunal: - Enforce the contract language and deny jurisdiction based on the IMFAT Statute and the express terms of Applicant’s letter of appointment. - First examine the merits (whether Applicant should be accorded staff membership based on the nature and continuity of his work) and then decide whether jurisdiction ratione personæ and ratione materiæ can be exercised despite the contractual language. ### Comparative jurisprudence (international administrative tribunals) - Instances where tribunals examined merits to decide jurisdiction: - Joel B. Justin v. The World Bank, WBAT Decision No. 15 (1984): “The question whether or not the Applicant holds a contract of employment with the Respondent and, therefore, is a staff member under Article II of the Statute can be decided only after a substantive consideration of the case.” (Para. 23.) WBAT found a contract had been formed but later terminated when applicant was informed he was ineligible. (Para. 39.) - In re Labarthe, ILOAT Judgment No. 307 (1977): “If the complainant does establish that he has such a contract, it is not disputed that in the circumstances of this case his claim must succeed. Thus, the issue between the parties on jurisdiction is also the issue between them on the merits...” (Para. 4.(d).) Tribunal found a contract and awarded compensation. - Camargo v. The Secretary-General of the United Nations, UNAT Judgement No. 96 (1965): “The question whether or not the Applicant must be regarded as the holder of a contract of employment with the United Nations can therefore be decided only after a substantive consideration of the case...” (p. 87.) UNAT found no valid acceptance and thus no contract. (p. 88.) - Instances where tribunals enforced contractual language and denied jurisdiction or limited remedies: - In re Privitera, ILOAT Judgment No. 75 (1964): contract stated “the present contract does not confer upon the holder the title of official of the World Health Organization”; tribunal declined jurisdiction and held only the contract governs. (Para. 2–3.) - In re Darricades, ILOAT Judgment No. 67 (1962): applied UNESCO Staff Regulations/Rules definition of “staff member” and denied jurisdiction where appointment was sole and specific for a meeting; contract specified that “the undersigned shall not be regarded as a staff member.” (Para. 1–2.) - In re Amezketa, ILOAT Judgment No. 1034 (1990): dismissed claims that special services agreements were a “legal fiction”; rights limited to terms of agreements and disputes subject to arbitration. (Para. 3.) - Teixeira v. The Secretary-General of the United Nations, UNAT Judgement No. 233 (1978): UNAT rejected claim that factual situation could change legal contractual status where applicant had accepted special service agreements and expressly waived staff status; awarded a termination indemnity but rejected claims of unequal treatment vis-a-vis staff. (Paras. II, III, VI, VIII, XI, XII.) - Instances where tribunals looked beyond contract language and exercised jurisdiction broadly: - In re Bustos, ILOAT Judgment No. 701 (1985): series of short-term contracts renewed over 11 years were held to form a single contract of indefinite duration; Tribunal held jurisdiction did not depend upon formal staff membership where link was “more than a purely casual one.” (Paras. 1, 5, 6, 9, 11.) - Bustos outcome: awarded compensation but not retroactive reinstatement; Tribunal noted it has “no power to reconstruct the contract retroactively nor to reform the version of it in which until its termination the complainant acquiesced.” (Para. 11.) ### Patterns, considerations, and precedential distinctions - Relevant considerations in adjudicating jurisdictional questions where contractual status is disputed: - Whether the issue of contractual status is essentially identical to the merits (congruence of jurisdictional question and merits). - Whether factual evidence supports that the contractual form conceals the true nature of the relationship (e.g., long continuity, functional integration, or domination by the stronger party). - Whether the contract explicitly and unambiguously denies staff status and whether the applicant knowingly accepted those terms. - Whether national/institutional staff regulations or specific statutory definitions explicitly restrict tribunal competence. - Whether remedies sought exceed tribunal’s powers (e.g., tribunal cannot retroactively reform contract terms even when finding a continuous employment relationship). ### Implications for the IMFAT determination - The IMFAT faces established precedents both for: - Proceeding to the merits in order to determine whether it has jurisdiction (Justin, Labarthe, Camargo). - Denying jurisdiction based on contractual language and statutory definitions or limiting relief to contractual terms (Privitera, Darricades, Amezketa, Teixeira). - The Tribunal must decide whether to: - Rely on the express terms of Applicant’s letter of appointment and Art. II, para. 1.a., to deny jurisdiction; or - Undertake substantive examination of factual circumstances to determine whether Applicant was a de facto staff member and thereby whether jurisdiction ratione personæ and ratione materiæ can be exercised. *Extract adapted from IMFAT discussion, paras. 59–81.* ### 10. The present case is of a very exceptional, if not unique, character. It can ### j1999-1 - 10. The present case is of a very exceptional, if not unique, character. It can ### Factual background and comparative precedent (Amora and others) - Jorge O. Amora v. Asian Development Bank, ADBAT Decision No. 24 (1997): applicant worked from 1979 until 1993 under a series of contractual agreements and was appointed as a regular staff member in 1993; upon reaching mandatory retirement age in 1995 he sought retirement and other benefits dating back to 1979 and the tribunal upheld his claims. - Contractual clauses in Amora included: “‘Nothing contained in the terms and conditions herein..shall be construed as establishing or creating any relationship other than that of independent contractor between the Bank and [him].’” and “‘[He] shall not be entitled to any compensation, allowances, benefits or rights from or against the Bank other than expressly provided therein....’” (Para. 3.) - ADBAT findings in Amora: - The MOAs did not reflect the true relationship; the tribunal concluded the applicant was not an independent contractor but a staff member in regular employment of indefinite duration since 1979 (Paras. 22–23, 31–32, 41–45). - Recourse to successive short-term or temporary contractual appointments for jobs essentially of a permanent nature is not fair employment practice unless there is a clear functional justification and management exigency; such appointments are subject to limitations based on norms of good administration (Para. 27). - Successive extensions and renewals for an unbroken term of almost 14 years supported a finding of intended indefinite duration (Para. 41). - Distinction noted: in Amora jurisdiction ratione personæ arguably not in doubt because the applicant had acquired regular staff status by 1993, but ADBAT nonetheless placed its holding on jurisdiction after conclusions on the merits (Para. 85). ### Jurisdictional analysis by the Administrative Tribunal (IMFAT) - Governing statutory provisions and definitions referenced: - Article II, para. 1.a. and Art. II, para. 2.c.(i) of the IMFAT Statute defining jurisdiction and “member of the staff.” - Article III (second sentence) prescribing the law the Tribunal “shall apply,” including generally recognized principles of international administrative law concerning judicial review of administrative acts (Report of the Executive Board, p. 18). - Key legal questions: - Whether IMFAT has jurisdiction ratione personæ given Applicant’s letter of appointment stating he “will not be a staff member of the Fund.” - Whether IMFAT has jurisdiction ratione materiæ as to whether the Fund’s decision to engage an individual as a contractual employee, rather than a staff member, constitutes a “decision taken in the administration of the staff” (Art. II, para. 2.a.). - Whether equitable considerations or the principle of audi alteram partem require IMFAT to extend or exercise jurisdiction to avoid leaving the Applicant without judicial redress. - Comparative jurisprudence considered: - Shkukani v. Commissioner-General of UNRWA, UNAT Judgement No. 628 (1993): concerned differing treatment of staff categories and availability of external judicial review; UNAT applied an equitable reading to afford review where otherwise none existed. - Darricades (supra, paras. 70–71) and ILOAT approach: recognized that denying jurisdiction may leave complainant without redress but emphasized tribunals are courts of limited jurisdiction and must apply mandatory provisions governing competence (quoted: “3. The Tribunal recognises that as a result of holding that it lacks jurisdiction, complainant is thereby regrettably deprived of any means of judicial redress ... the Tribunal, being a Court of limited jurisdiction, is bound to apply the mandatory provisions governing its competence.”). ### Role and scope of audi alteram partem and internal law application - Article III directs the Tribunal to apply the internal law of the Fund, including generally recognized principles such as the right to be heard (audi alteram partem), but: - The second sentence of Article III prescribes what law IMFAT “shall apply” when it has jurisdiction; it does not determine the Tribunal’s jurisdictional scope (Paras. 93–94). - Audi alteram partem supplies standards for assessing legality of administrative acts that come within the Tribunal’s jurisdiction (examples: disciplinary procedure challenges; Ms. “C.”, Judgment No. 1997-1 (August 22, 1997) — lapse in due process when meaningful opportunity to rebut adverse evidence was lacking) (Paras. 94–95). - The Tribunal concluded that the mere fact a claim may otherwise escape judicial examination does not require IMFAT to exercise jurisdiction; jurisdiction is conferred exclusively by the Statute and cannot be extended on equitable grounds (Paras. 95–96). ### Fund policy developments and practical implications - Policy on Categories of Employment approved by the Fund’s Executive Board on January 20, 1999: - “Functions that are needed for two years or more would be performed by employees on staff appointments. Functions that are expected to be performed for less than two years would be performed by contractual employees. Contractual appointments are used only for short-term employment, and can be extended if needed to a maximum cumulative period of four years. Extensions beyond two years require the approval of the Director of Administration.” - The Policy was communicated via placement on the Fund’s internal website and mirrors a similar 1989 Policy except that the 1989 Policy did not prescribe the two-year and four-year limitations embodied in the 1999 Policy (Para. 98). - Practical effects noted: - Had the 1999 Policy been in force and implemented during Mr. “A”’s tenure, the dispute likely would not have arisen; for headquarters-based technical assistance experts the 1999 Policy retains an option for “long-term contracts when such an approach is justified” and states the Policy “may need to be applied flexibly” (Para. 99). - Mr. “A” retains maintenance of group medical coverage for eighteen months after contract expiration without financial contribution by the Fund (Para. 99). - Tribunal’s expression of concern: - The Tribunal is “bound to express its disquiet and concern at a practice that may leave employees of the Fund without judicial recourse” and recommends that policy-making organs of the Fund consider means of providing contractual employees with appropriate avenues of judicial or arbitral resolution, notably for disputes over whether functions meet criteria for staff appointment rather than contractual status (Para. 97). ### Tribunal conclusions and dispositive findings - Determinations (verbatim numbering and text preserved where provided): 1. The Administrative Tribunal does not have jurisdiction to decide whether the Fund acted illegally when it entered into a series of contracts for contractual employment of the Applicant, allegedly in violation of its 1989 Employment Guidelines and principles of international administrative law, because Applicant apparently performed the same work as regular staff under contracts renewed several times in the course of nine years and then allowed to expire. 2. The Administrative Tribunal does not have jurisdiction ratione personæ over Applicant’s complaint since his letter of appointment stated that he “will not be a staff member of the Fund” and the Administrative Tribunal’s jurisdiction is restricted by its Statute to applications brought by a “member of the staff” (Art. II, para. 1.a.), defined as “any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff” (Art. II, para. 2.c.(i)). 3. The Administrative Tribunal does not have jurisdiction ratione materiæ over Applicant’s claim; the Fund’s decision to enter into a contract or series of contracts with an individual to serve as a contractual employee, rather than as a member of the staff, is not a “decision taken in the administration of the staff” (Art. II, para. 2.a.). 4. Equitable or other considerations do not enable the Administrative Tribunal to extend its jurisdiction to claims falling outside the express language of Article II of its Statute, when Articles III, IV, and XIX limit its powers to those conferred by the Statute. 5. The Administrative Tribunal is not entitled to exercise jurisdiction in this case because otherwise Applicant’s complaint may escape examination by an impartial adjudicatory body. The principle of audi alteram partem does not authorize or require this Administrative Tribunal to exercise jurisdiction in this case. 6. The Administrative Tribunal need not examine the merits of Applicant’s claim in order to decide whether it has jurisdiction in this case. It may base that decision on the language of Applicant’s letter of appointment and the Statutory provisions governing jurisdiction. (Paras. 100–6; Decision) - Final disposition: - The Administrative Tribunal unanimously grants the Fund’s Motion for Summary Dismissal. - Signatories recorded: Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Agustín Gordillo, Associate Judge; Celia Goldman, Acting Registrar. - Washington, D.C., August 12, 1999. --- _Source: https://www.imf.org/-/media/files/imfat/j1999-1.pdf_