## Administrative Tribunal of the International Monetary Fund — Case of Mr. “V” (August 11–13, 1999) ## Source details **Canonical URL:** [Administrative Tribunal of the International Monetary Fund — Case of Mr. “V” (August 11–13, 1999)](https://www.imf.org/-/media/files/imfat/j1999-2.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j1999-2.pdf.md) - [Structured JSON version](/-/media/files/imfat/j1999-2.pdf.json) --- ### Case, parties, and procedure - Tribunal composition: Judge Stephen M. Schwebel, President; Judges Nisuke Ando and Agustín Gordillo, Associate Judges. - Applicant: Mr. “V”, former Fund staff member; core contention: Fund breached a Retirement Agreement dated May 9, 1996 that provided for early retirement effective November 30, 1998. - Key procedural dates: - Application filed October 9, 1998; transmitted to Respondent December 4, 1998. - Fund’s Answer filed January 19, 1999. - Applicant’s Reply filed February 19, 1999; Fund’s Rejoinder filed April 16, 1999. - Tribunal denied Applicant’s request for oral proceedings on April 14, 1999. - President called for additional written statements April 27, 1999; Applicant given until April 30 to submit additional statement; Respondent until May 6 to respond. - President denied Applicant’s document production request July 12, 1999. - Tribunal reviewed transcript of Grievance Committee oral hearings involving Applicant and senior Fund officials. ### Alleged breach and the 1996 SBF Report - Applicant’s allegation: 1996 Separation Benefits Fund (SBF) Report included an entry (identifying characteristics but not name) listing Applicant’s reason for separation as: “Performance. Unable to produce work that met department’s standards. Retired.” - 1996 SBF Report circulation: transmitted to Fund Management, the Personnel Committee (Senior Personnel Managers in each department), the Ombudsperson, and the Chairman of the Staff Association Committee; copies became available for staff to read according to Applicant’s assertion. - Regulatory and classification context: - SBF regulatory basis: GAO No. 16, Rev. 5 (Separation of Staff Member). - Information security regime: GAO No. 35 (Information Security) with classification levels: NOT FOR PUBLIC USE; CONFIDENTIAL; STRICTLY CONFIDENTIAL; SECRET (Section 3.03.1). - 1996 SBF Report marked “STRICTLY CONFIDENTIAL.” ### Factual background and implementation of the Retirement Agreement - Employment chronology: Applicant began employment in 1969; promotions in 1979 and 1986. - Retirement Agreement core implementation steps (as reproduced verbatim in source): - Remain in the [ ] Department until May 9, 1997; continue to receive regular assignments. - Separation leave from May 12, 1997 through early retirement effective November 30, 1998; allocation of office in International Square, a computer, and a telephone; access to fax and photocopy machines. - Originals of 1992 and 1994 performance reports to be held under seal in the Administration Department and not subject to review except jointly by the Director of Administration and the General Counsel; all copies of 1992 and 1994 performance reports to be destroyed within ten days from signing of the separation agreement, with specified exceptions. - Performance rating for 1992 and 1994 to be removed from the Fund’s personnel data base. - No performance reports to be prepared for 1995 and 1996. - On May 1, 1996 and May 1, 1997, Applicant to receive a merit pay increase equivalent to the maximum of the range of possible merit increases associated with a ‘2' rating and Applicant’s salary quartile. - Paragraphs providing settlement of all causes of action, confidentiality of the terms, Ombudsperson assistance if required, and signature confirmation. - Implementation actions communicated May 17, 1996: originals sealed; all copies destroyed; numerical ratings for 1992 and 1994 removed from the personnel data base; Applicant did not dispute these actions. ### Content and circulation specifics of the 1996 SBF Report - Report characteristics: - Marked “STRICTLY CONFIDENTIAL”; memorandum from Director of Administration to Deputy Managing Director summarizing SBF use and policies. - Included a table listing each SBF disbursement case with characteristics: nationality; age at separation; department; grade; date of entry on duty; years of service; type of SBF; SBF months; effective date; and reasons for separation. - Included a table analyzing distribution of SBF funds by grade, nationality, age, length of service and similar factors. - Aggregate figures and identifiability: - Report documented a total of twenty cases. - Four cases, including Applicant’s (Case No. 10), are designated as performance related. - Entry for Applicant, Case No. 10, lists reason: “Performance. Unable to produce work that met department’s standards. Retired.” - The Report was transmitted to a total of thirty individuals: the Managing Director, Deputy Managing Directors, Senior Personnel Managers, the Ombudsperson and the Chairman of the Staff Association Committee. - Beginning with the 1997 SBF Report, annual Reports no longer reveal nationalities of SBF recipients. ### Parties’ primary contentions - Applicant’s principal contentions: - Fund violated Retirement Agreement by including information inconsistent with sealed records and confidentiality obligations, harming reputation and employment prospects. - “Sealing” should extend to contents; SBF Report used sealed-document contents. - Circulation constituted gross negligence or intentional misconduct and violated GAO No. 35 (Information Security) and N Rules. - Relief sought included rescission of the Managing Director’s decision, expungement/recall/redaction of the SBF entry, conversion/extension of leave with pay to November 30, 1999 (or reinstatement), rescission of resignation, compensation of three times Applicant’s annual gross pay with interest, and costs and attorneys’ fees. - Respondent’s principal contentions: - Preparation and limited circulation of the 1996 SBF Report did not breach the Retirement Agreement or Fund rules. - Confidentiality clause (Paragraph 8) applied to Applicant’s obligation not to disclose, not to a Fund-wide prohibition on limited internal reporting. - SBF Report reference derived from Assistant Director of Administration’s personal knowledge, not from sealed APRs. - Circulation to Personnel Committee, Ombudsperson and SAC Chairman was authorized under GAO No. 35 for those with a “specific need to know.” - If SAC reproduced the Report on its information desk, that action was independent and not attributable to the Fund. - Applicant failed to establish a nexus between the Report’s circulation and harm to employment prospects. ### Tribunal’s findings on central legal issues (paras. 54–79) - Source of SBF entry: - Assistant Director testified he supplied the information based on his own knowledge and not from sealed APRs. (para. 54) - Tribunal concluded credible evidence shows the 1996 SBF Report entry was based on Assistant Director’s knowledge, not sealed or destroyed records. (para. 63) - Sealing and scope: - “To seal” defined by Black’s Law Dictionary; paragraph 3 procedure required review of sealed documents only by Director of Administration and General Counsel acting jointly. (para. 55) - Tribunal concluded paragraph 3 was complied with (originals sealed, copies destroyed) and did not bar reliance on the Assistant Director’s personal knowledge. (para. 56) - Personnel data base removal: - Paragraph 4: “The performance rating of [ ] allocated to you in 1992 and 1994 will be removed from the Fund’s personnel data base.” (para. 57) - Applicant informed May 17, 1996 that numerical ratings “have been removed and replaced with a blank entry in the personnel database” and copies of the APRs “have been deleted and . . . all other known copies of said reports have been destroyed.” (para. 57) - Tribunal observed paragraphs 3 and 4 protect only records in existence at the time of the Agreement and do not bar creation of future records (e.g., 1996 SBF Report). (para. 61) - Confidentiality clause (paragraph 8): - Paragraph 8 text: “8. The above terms and conditions shall remain confidential and shall not be disclosed by you, either during or after your employment with the Fund.” (para. 64) - Tribunal concluded the language suggests both parties were required to keep terms “confidential,” though it expressly addresses Applicant; Tribunal applied GAO No. 35 meanings for confidentiality. (paras. 66, 68) - Tribunal concluded paragraph 8 did not prohibit the Fund from commenting critically on Applicant’s performance in the “Strictly Confidential” SBF Report. (para. 71) - “Cleansing” claim: - Applicant’s contention that parties intended to “cleanse” his record was not sustained; Fund rejected Applicant’s proposed broader prohibitions and “expungement” language. (paras. 75–77) - Tribunal emphasized enforcement of negotiated settlement and that the Agreement reflected individualized bargaining and consideration. (paras. 78–79) ### Tribunal’s analysis of alleged rule violations and managerial discretion - GAO No. 35 (Information Security): - Tribunal rejected Applicant’s contention that the Report should have been classified higher than “Strictly Confidential”; classification of the Report as “Strictly Confidential” and its limited internal circulation were reasonable managerial decisions. (see discussion under GAO No. 35) - Tribunal found Section 7.02(iii) inapplicable because “no information or records were provided to any person under the Retirement Agreement.” (see analysis) - N Rules: - N-6 (prohibition on revealing unpublished information without Managing Director authorization) did not apply because the Report was circulated only to addressees within the Fund. (see analysis) - Rules governing SBF Report preparation: - Tribunal unable to conclude that possible identifiability of some recipients in the circulated Report violated preparation guidelines; starting 1997 nationalities were no longer revealed to enhance confidentiality. (see analysis) - Negligence or arbitrariness: - Tribunal rejected that circulation amounted to “at least grossly negligent, if not intentional” misconduct; any arguable lack of sensitivity by the Assistant Director was not gross negligence. (see analysis) ### Staff Association Committee (SAC) handling and Tribunal jurisdiction - Applicant’s assertion: SAC placed copies of the 1996 SBF Report on its information desk, making it publicly available to staff. - Tribunal jurisdictional holding: - SAC actions are not “administrative acts” taken in the administration of Fund staff and therefore lie outside Tribunal’s jurisdiction ratione materiæ. (see Section on SAC circulation and Tribunal jurisdiction) - Transmission of the Report to the SAC Chairman by the Fund is distinct from SAC’s independent handling; the Fund is not liable for SAC’s subsequent independent acts. (see analysis) - Tribunal factual findings regarding injury: - Applicant introduced no evidence that employers who denied him positions acted on knowledge from the SBF Report. - Applicant failed to establish nexus between SBF Report circulation and inability to obtain new employment; pre-existing reputational matters predated the Retirement Agreement. (see findings) ### Standard of review, Grievance Committee matters, and costs - Standard of review: - Grievance Committee reviews non-discretionary decisions for consistency with Fund rules and exercises deferential review of discretionary decisions unless arbitrary, capricious, discriminatory, or procedurally defective. (Section 5.01–5.02) - Tribunal may weigh Grievance Committee record as evidence but makes independent findings of fact and law. (Section 5 discussion) - Jurisdictional objections: - Tribunal declined to entertain Applicant’s challenge to the Grievance Committee’s exercise of jurisdiction in his case given procedural posture and relevant GAO No. 31 provisions. (see Section 5) - Costs request by the Fund: - Fund sought costs for defending allegedly frivolous claims before the Grievance Committee. - Tribunal found no statutory predicate established under Article XV and denied award of costs to the Fund for defending such claims. (Section 5 discussion) ### Final decision (enumerated) - The Administrative Tribunal unanimously decides: - 1. The Fund did not act illegally in preparing and circulating the 1996 SBF Report in accordance with Fund Policy. - 2. The SBF Report’s characterization of Applicant’s performance as “[u]nable to produce work that met department’s standards” did not violate Retirement Agreement paragraphs 3, 4, or 8; Fund did not agree to “cleanse” Applicant’s record nor to refrain from subsequent documents reflecting on his performance. - 3. There is no conflict between Fund internal law requiring circulation of the SBF Report and the Retirement Agreement; nondisclosure of SBF reporting requirements during negotiations was not illegal. - 4. Preparation and circulation of the 1996 SBF Report did not violate GAO No. 35, the N Rules, the SBF reporting requirements, or other confidentiality duties independent of the Retirement Agreement. - 5. Applicant’s claim that the Fund is liable for SAC acts with respect to the Report is not within Tribunal’s jurisdiction ratione materiæ. - 6. Because the Fund did not breach the Agreement or Fund rules, it was unnecessary to reach whether Applicant suffered injury; in any event Applicant failed to establish a nexus between the Report and his inability to obtain new employment. - 7. Representation of the Fund by its Legal Department before the Tribunal does not violate Article X, Section 3 of the Tribunal’s Statute. - 8. Tribunal cannot entertain Applicant’s challenge to the Grievance Committee’s exercise of jurisdiction in his case or its standard of review. - 9. Tribunal cannot grant the Fund’s request for an award of costs for defending allegedly frivolous claims made in the Grievance Committee. *Administrative Tribunal of the International Monetary Fund. Decision. Washington, D.C. August 13, 1999.* ### Introduction ### Introduction ### Case and parties - The Administrative Tribunal of the International Monetary Fund met on August 11, 12 and 13, 1999, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Agustín Gordillo, Associate Judges, to adjudge the case brought against the International Monetary Fund by Mr. “V”, a former staff member. - Applicant’s core contention: the Fund violated the terms of a Retirement Agreement entered into on May 9, 1996, which settled differences between Mr. “V” and the Fund and provided for his early retirement effective November 30, 1998. ### Alleged breach and contested SBF Report entry - Applicant alleges the Fund breached the Agreement by including in its 1996 Report of the Separation Benefits Fund (SBF Report) an entry referring to the Applicant (without naming him) that listed the reason for his separation as: “Performance. Unable to produce work that met department standards. Retired.” - The 1996 SBF Report was circulated to Fund Management, the Personnel Committee (Senior Personnel Managers in each department), the Ombudsperson, and the Chairman of the Staff Association Committee; Applicant alleges that copies became available for staff members to read. - Applicant also alleges the preparation and distribution of this information violated GAO No. 35 (Information Security) and other Fund rules and regulations. ### Procedural history - Application filed October 9, 1998; after amendments to comply with the Tribunal’s Rules of Procedure, transmitted to the Respondent on December 4, 1998. - Fund’s Answer filed January 19, 1999. - Applicant’s Reply filed February 19, 1999; Fund’s Rejoinder filed April 16, 1999. - On April 14, 1999 the Tribunal denied Applicant’s request for oral proceedings under Rule XIII, para. 1, finding oral proceedings not “necessary for the disposition of the case.” - Tribunal reviewed a transcript of oral hearings by the Fund’s Grievance Committee at which Applicant and senior Fund officials were heard. - On April 27, 1999 the President of the Administrative Tribunal, under Rule XI, called for additional written statements: Applicant given until April 30 to submit additional written statement; Respondent given until May 6 for responsive statement. - Applicant requested production of documents in his additional statement; President denied that request on July 12, 1999, on the ground the documents requested were irrelevant to the case. - The President also declined to transmit the text of Applicant’s April 21, 1999 request for additional pleadings to the Fund, noting the Rules do not provide for such transmission or response. ### Factual background of employment and separation - Applicant began employment with the Fund in 1969 and received promotions in 1979 and 1986. - Disputes arose regarding Applicant’s performance and its evaluation, notably in Annual Performance Reports (APRs). - Retirement Agreement permitted Applicant to remain in his department until May 9, 1997, then separation leave; early retirement effective November 30, 1998, more than a decade before mandatory retirement age of 65. - Separation leave was financed by the Fund’s Separation Benefits Fund (SBF). In 1996 the Fund produced a Report describing disbursements from the SBF, including identifying characteristics of recipients (but not names) and reasons for separation. - Applicant, while Vice-Chairman of the Staff Association Committee and visiting the Office of the Staff Association during separation leave, alleges he discovered copies of the 1996 SBF Report placed on an information desk and thereby learned the Report contained information about himself. ### Terms of the Retirement Agreement (full text reproduced in source) - Key provisions included (preserved verbatim as in Agreement): - Remain in the [ ] Department until May 9, 1997; continue to receive regular assignments. - Separation leave from May 12, 1997 through early retirement effective November 30, 1998; allocation of office in International Square, a computer, and a telephone; access to fax and photocopy machines. - Originals of 1992 and 1994 performance reports to be held under seal in the Administration Department and not subject to review except jointly by the Director of Administration and the General Counsel; all copies of 1992 and 1994 performance reports to be destroyed within ten days from signing of the separation agreement, with specified exceptions if Applicant sought to reopen performance issues or made disparaging statements about staff. - Performance rating for 1992 and 1994 to be removed from the Fund’s personnel data base. - No performance reports to be prepared for 1995 and 1996. - On May 1, 1996 and May 1, 1997, Applicant to receive a merit pay increase equivalent to the maximum of the range of possible merit increases associated with a ‘2' rating and Applicant’s salary quartile. - Paragraphs providing settlement of all causes of action, confidentiality of the terms, Ombudsperson assistance if required, and signature confirmation. ### Negotiation history and related proposals - Negotiations over the Agreement involved oral and written communications; Assistant Director of the Administration Department testified involvement in negotiations for at least five years before May 1996; Applicant testified negotiations began in December 1995. - Applicant sought “expungement” of portions of the 1992 and 1994 APRs in written proposals; those requests were rejected. The final Agreement provided sealing of originals, destruction of copies, and removal of numerical ratings from the personnel data base rather than an “expungement” notation that evaluations were “seriously flawed.” - Applicant (through counsel) proposed additional language for paragraph 3 to prohibit referral or communication of the 1992 and 1994 assessments “except as provided in this paragraph”; that sentence was rejected and not included in the final Agreement. - Applicant signed a standard separation letter by April 30, 1996; on May 2, 1996 Applicant signed a document similar to the final Agreement but without paragraphs 7 and 8; Fund asserts the May 2 document did not take effect as management approval was lacking. - On May 3, 1996 Applicant filed a grievance seeking reconsideration of his 1994 APR; management required a final Agreement resolving underlying disputes before granting approval. - Final Agreement dated May 7, 1996, issued by the Deputy Director of Administration; Applicant signed on May 9, 1996, released the Fund from pre-existing claims and provided confidentiality; on May 10, 1996 Applicant withdrew his request for review of the 1994 APR. ### Implementation actions by the Fund - On May 17, 1996, Assistant Director of Administration notified Applicant that originals of the 1992 and 1994 performance reports had been sealed, all copies destroyed, and numerical ratings for those years removed from the personnel data base; Applicant did not dispute these actions. - A “To Whom It May Concern” letter dated April 26, 1996 stated: “The unavailability of a completed performance report for 1 92, 1 94, 1995 and 1996 does not in any way reflect adversely on Mr. [ “V”]’s performance during those years or on his career.” Issuance of this letter was not in the Agreement terms but was negotiated collaterally. ### Separation Benefits Fund regulatory basis and reporting practice - Regulatory basis: GAO No. 16, Rev. 5 (Separation of Staff Member). - GAO No. 16 provides that mandatory SBF benefits apply for separation for medical reasons without access to disability pension, abolition of position, reduction in strength, or change in job requirements; mandatory payments are calculated per GAO No. 16, including “one and one-fourth months’ salary for each year of service” subject to maximums specified in GAO No. 16. - GAO No. 16 also authorizes discretionary SBF payments “to facilitate separation” at the Director of Administration’s sole discretion; benefits to Mr. “V” were awarded under this discretionary provision. - The SBF Report practice (initiated in 1995 and continued in 1996) disclosed identifying characteristics of recipients (not names) and reasons for separation, and the Report was transmitted to Fund Management, the Personnel Committee, the Ombudsperson, and the Chairman of the Staff Association Committee. *Administrative Tribunal of the International Monetary Fund — Introduction (case involving Mr. “V” and the Fund), August 11–13, 1999.* ### Section 4.06 above, are granted at the sole discretion of the Director of Administration. The maximum amount ### j1999-2 - Section 4.06 above, are granted at the sole discretion of the Director of Administration. The maximum amount ### The 1996 Separation Benefits Fund (SBF) Report - The 1996 SBF Report is marked “STRICTLY CONFIDENTIAL” and is a memorandum from the Director of Administration to the Deputy Managing Director summarizing SBF use for the year and the underlying policies governing such use. - The Report includes: - A table listing each SBF disbursement case with characteristics: nationality; age at separation; department; grade; date of entry on duty; years of service; type of SBF; SBF months; effective date; and reasons for separation. - A table analyzing distribution of SBF funds by grade, nationality, age, length of service and similar factors. - The Report documents a total of twenty cases, encompassing both mandatory and discretionary uses of SBF funds. - Four cases, including Applicant’s (Case No. 10), are designated as performance related. - The Report’s statement on performance-related use: “Performance Problem: SBF resources for performance related problems are used only where such problems have been fully documented, where other remedies have failed and where separation is clearly in the best interest of the institution. Use of SBF on the grounds of performance was made for four staff members in FY 1996.” - Entry for Applicant, Case No. 10, lists the reason for separation as: “Performance. Unable to produce work that met department’s standards. Retired.” - Applicant’s name was not included on circulated copies except where required on the copy transmitted to the Deputy Managing Director; however the Assistant Director of Administration acknowledged the entry was identifiable by nationality, department and age. - Beginning with the 1997 SBF Report, annual Reports no longer reveal nationalities of SBF recipients. - The 1996 SBF Report was transmitted to a total of thirty individuals: the Managing Director, Deputy Managing Directors, Senior Personnel Managers, the Ombudsperson and the Chairman of the Staff Association Committee. ### Information security and classification (GAO No. 35) - GAO No. 35 provides four information classification levels: NOT FOR PUBLIC USE; CONFIDENTIAL; STRICTLY CONFIDENTIAL; and SECRET. (Section 3.03.1.) - “STRICTLY CONFIDENTIAL” is used for: - (i) information entrusted to the Fund on a confidential basis not adequately protected by CONFIDENTIAL; - (ii) information generated by the Fund whose unauthorized disclosure would likely cause embarrassment or difficulties for the Fund or members; - (iii) information involving matters of strict personal privacy (e.g. medical and financial information related to benefit entitlements); - (iv) other information judged necessary to restrict access to those with a specific need to know. - Access rule: “For information classified STRICTLY CONFIDENTIAL, access shall be limited to those having a specific need to know the information, as determined by the originating office or by those having authority for clearance, in consultation with the originating office.” (Section 4.02.3) - Section 7.02 requires persons in possession of such information to safeguard them in accordance with: - (i) the Rules and Regulations of the International Monetary Fund (specifically Rules N4, N5, N6 and N11), - (ii) the provisions of GAO No. 35 and related standards, procedures and guidelines, - (iii) the agreements, arrangements or understandings under which the information or records were provided. ### Facts about Applicant’s post-separation employment efforts - Applicant testified that after the Retirement Agreement in May 1996 he made multiple unsuccessful efforts to secure alternative employment. - In autumn 1996 Applicant sought assistance from the Assistant Director of Administration for a senior position at another international organization; a general employment background letter was provided by Administration Department rather than directly from the Managing Director or the former department. - The Senior Personnel Manager of Applicant’s former department stated willingness to provide positive references if contacted; no inquiries were made. - Assistant Director of Administration testified the other organization’s personnel director said Applicant’s prospects were not good due to other candidates’ subject-matter background; Applicant testified a very senior official of that organization told him he was the top candidate. - Applicant and his former immediate supervisor testified the Managing Director personally and verbally recommended Applicant to the Director-General of that organization; Applicant speculated non-selection may have been due to the organization’s personnel director being a former Fund staff member aware of Applicant’s performance ratings. - Applicant asserts difficulties getting interviews and hearing about unadvertised positions; he claims information in the 1996 SBF Report forced him to “fend off conflicting official records” when explaining circumstances of his resignation. - Applicant alleges denial of a consulting opportunity with one of the Fund’s departments subsequent to separation on November 30, 1998. ### Parties’ principal contentions — Applicant - Administration Department violated the Retirement Agreement by including information inconsistent with Applicant’s record or with information the Fund agreed to seal and keep confidential, damaging Applicant’s reputation and career. - “Sealing” applies to contents as well as physical documents; documents sealed were the basis for the information in the SBF Report. - Circulation of the Report was at least grossly negligent, if not intentional; Administration Department’s knowledge of SBF reporting policy indicates bad faith or fraud in negotiating with Applicant. - Distribution damaged Applicant’s reputation within the Fund and impaired ability to obtain supportive references externally. - Circulation violated GAO No. 35, Section 7.02(iii) and the N Rules (Staff Regulations) regulating transmission of information. - The dispute is contractual (the Retirement Agreement) rather than an administrative discretion matter and thus outside the Grievance Committee’s jurisdiction; GAO No. 31, Section 5 improperly constrains review to “applicable Fund rules and regulations.” - Article X, Section 3 of the Tribunal’s Statute prohibits the Fund’s Legal Department from representing the Fund before the Administrative Tribunal. - Applicant seeks remedies including rescission of the Managing Director’s decision, expungement/recall/redaction of the 1996 SBF Report’s comments about Applicant, conversion or extension of leave with pay to November 30, 1999 (or reinstatement), rescission of Applicant’s undated resignation notice, compensation of three times Applicant’s annual gross pay with interest, and costs and attorneys’ fees. ### Parties’ principal contentions — Respondent (the Fund) - Preparation and limited circulation of the 1996 SBF Report did not violate duties under the Retirement Agreement or Fund rules and regulations. - The Retirement Agreement’s confidentiality clause (Paragraph 8) applied to Applicant’s disclosure obligations, not to the Fund; the Fund treats such terms as confidential but “confidential” within the Fund allows limited availability consistent with institutional needs. - The Fund rejected Applicant’s proposed expungement language as amounting to an unacceptable blanket secrecy obligation; instead it agreed to narrower constraints consistent with institutional needs. - The SBF Report’s reference to Applicant’s performance derived from the Assistant Director of Administration’s own knowledge, not unauthorized access to sealed reports. - Circulation to the Personnel Committee, the Chairman of the Staff Association and the Ombudsperson was intended to enhance credibility, transparency and accountability of SBF policy and to avoid perceptions of abuse. - GAO No. 35, Section 4.02.3 authorizes access to STRICTLY CONFIDENTIAL documents by those “having a specific need to know.” - If copies were left on the Staff Association Office table, the Staff Association officials acted inconsistently with the STRICTLY CONFIDENTIAL designation; the Fund is not responsible for Staff Association actions. - Applicant has not established a nexus between circulation of the SBF Report and harm to his subsequent employment prospects or professional reputation. - Article X, Section 3 of the Tribunal’s Statute does not bar the Fund’s Legal Department from representing the Fund before the Administrative Tribunal. - The Grievance Committee was competent to determine whether the Fund breached the Retirement Agreement. - The Fund seeks reasonable attorneys’ fees for costs before the Grievance Committee relating to allegedly frivolous claims. ### Consideration of central legal issue - Applicant alleges breach of the Retirement Agreement by dissemination in the 1996 SBF Report of information stating he was “[u]nable to produce work that met department’s standards.” - Applicant relies on three provisions of the Agreement: - (a) sealing of the 1992 and 1994 performance reports and destruction of copies (paragraph 3); - (b) removal of the 1992 and 1994 ratings from the “personnel data base” (paragraph 4); - (c) the confidentiality clause (paragraph 8). - Applicant contends the Agreement’s underlying purpose was to “cleanse his record” and that the SBF Report undermines that purpose. - The Fund contends it fulfilled the Agreement’s explicit requirements: originals of the 1992 and 1994 reports were sealed in Administration Department and all copies destroyed; confidentiality clause did not obligate the Fund to absolute secrecy; and the Agreement did not provide for blanket cleansing of Applicant’s performance record. - Paragraph 3 of the Retirement Agreement (quoted in full) provides originals of the 1992 and 1994 performance reports will be held under seal in the Administration Department and only reviewed jointly by the Director of Administration and the General Counsel; sealing does not govern if Applicant seeks to reopen performance issues or, in the opinion of the Director of Administration, Applicant makes disparaging statements about Fund staff integrity or competence; all copies of the 1992 and 1994 reports will be destroyed within ten days from signing of the separation agreement. - There is no dispute the originals were sealed and copies destroyed as provided by Paragraph 3. - Applicant asserts sealing should extend to contents and that sealed-document contents formed the basis for the SBF Report entry because SBF policy requires documented performance problems. *Source: International Monetary Fund — j1999-2 (1996 SBF Report excerpt).* ### 54. The Fund argues, to the contrary, that the information regarding Applicant in the SBF ### 54. The Fund argues, to the contrary, that the information regarding Applicant in the SBF ### Sealing of records and source of SBF Report entry - The Assistant Director of Administration testified that he supplied the information regarding the reason for Mr.“V”’s separation as it appeared in the 1996 SBF Report, relying on his own knowledge of the case and not upon the sealed Annual Performance Reports (APRs). (para. 54) - The Tribunal cites a definition of “to seal” from Black’s Law Dictionary, 6th ed., 1990: to seal means “to close by any kind of fastening that must be broken before access can be obtained,” and notes the Agreement’s paragraph 3 procedure requiring review of sealed documents only by the Director of Administration and the General Counsel acting jointly. (para. 55) - Applicant’s testimony before the Grievance Committee described his understanding that “under seal” meant a container “that would have glued upon it the statement that pursuant to this agreement, this can be only opened by joint action of the director of Administration and the general counsel…” and that sealing was agreed as an alternative to the “expungement” he had proposed so the Fund could retain one copy for its defense. (para. 55) - The Tribunal concludes that paragraph 3 did not prohibit the Assistant Director from preparing the 1996 SBF Report entry based on his own knowledge. The originals of Applicant’s 1992 and 1994 APRs had been placed “under seal” and all copies destroyed, so the Fund complied with paragraph 3. The Fund did not undertake to conceal the broader contours of Mr. “V”’s performance. (para. 56) ### Removal of 1992 and 1994 performance ratings from “personnel data base” - Paragraph 4 of the Retirement Agreement: “4. The performance rating of [ ] allocated to you in 1992 and 1994 will be removed from the Fund’s personnel data base.” (para. 57) - On May 17, 1996, Applicant was informed that his numerical ratings for 1992 and 1994 had been “deleted from the personnel data base,” based on communications stating the ratings “have been removed and replaced with a blank entry in the personnel database” and that copies of the APRs “have been deleted and . . . all other known copies of said reports have been destroyed.” (para. 57) - Applicant did not dispute that these actions occurred; his contention was ambiguity over the term “personnel data base” and whether it encompassed more than the electronic records referenced. (para. 58) - Applicant’s testimony: he viewed “personnel data base” as linked to paragraph 3 and thought any additional data in the Fund that would disclose the sealed reports should be removed. He accepted it as a “general term” rather than a “Fund specific term of art.” (para. 59) - The Assistant Director testified he understood “personnel data base” to refer solely to an electronic record and that Applicant had expressed concern about having a blank space in that electronic record. (para. 60) - The Tribunal observes paragraph 3 and paragraph 4 refer to sealing or removal only of records in existence at the time of the Agreement and therefore would not protect against creation of future records regarding Applicant’s past performance, such as the 1996 SBF Report. The 1996 SBF Report entry for Mr. “V” did not supply his performance ratings. (para. 61) - Applicant’s counsel had proposed language: “The assessment of your performance for 1992 and 1994 shall not be referred to or communicated, orally or in writing, to anyone except as provided in this paragraph.” The Fund rejected this supplementation. (para. 62) - The Tribunal concludes credible evidence shows the 1996 SBF Report entry was based on the Assistant Director’s knowledge, not the sealed or destroyed records, and that nothing in the Agreement barred the Fund from relying on such knowledge or from creating a subsequent report stating inability to produce work that met department’s standards was the reason for separation. (para. 63) ### Confidentiality clause (paragraph 8) - Paragraph 8 of the Retirement Agreement: “8. The above terms and conditions shall remain confidential and shall not be disclosed by you, either during or after your employment with the Fund.” (para. 64) - A contested issue: whether paragraph 8 imposes obligations on the Fund as well as on Applicant. Applicant contends it restricts the Fund from disseminating information about the Agreement through the 1996 SBF Report; the Fund contends paragraph 8 applies only to Applicant. (para. 64) - Paragraph 8 was not part of the original draft Applicant signed May 2, 1996; it was one of two paragraphs (the other paragraph 7) required by Fund management in the final Agreement signed May 9, 1996. The Fund sought it to prohibit disclosure by Applicant of “exceptional” and “unprecedented” benefits. (para. 65) - The Tribunal concludes the language of paragraph 8 suggests both parties were required to keep the terms “confidential,” though the provision expressly addresses Applicant (“shall not be disclosed by you”). (para. 66) - The Tribunal applies the Fund’s usage of “Confidential” as given meaning by GAO No. 35 (information security), noting GAO No. 35 forms part of the Fund’s internal law and that the Fund treated such personnel documents as “Confidential” under GAO No. 35 in this case. (para. 68) - The 1996 SBF Report was classified “Strictly Confidential,” permitting circulation only to staff with a “need to know” as determined by the originating office under GAO No. 35, Section 4.02.3. (para. 69) - Applicant argued sealing required an even higher level of security than “Confidential” or “Strictly Confidential”; the Tribunal observes sealing of documents is not dealt with by GAO No. 35 and is not part of the Fund’s standard policy relating to information security. (para. 70) - The Tribunal concludes paragraph 8 did not prohibit the Fund from commenting critically on Applicant’s performance in the “Strictly Confidential” SBF Report, the purpose of which was to explain uses of the Separation Benefits Fund. (para. 71) ### Did the Fund agree to “cleanse” Applicant’s record? - Applicant’s contention: the parties intended to “cleanse” his performance record so no record would reflect negatively on his performance; the 1996 SBF Report entry ran counter to that intention. (para. 72–73) - Applicant’s testimony described his “basic concern [was] reputational damage,” that he needed “a ‘completely clean record from the Fund’ in order to secure new employment,” and that he was “willing to make sacrifices to have this record.” He expected no references to performance problems in Fund documents created after the Agreement. (para. 73) - Applicant worried about “conflicting records” and inability to represent to prospective employers that he had no performance problems if the 1996 SBF Report were revealed. He was also concerned staff references would be compromised because administrators had been informed that the reason for his departure was performance. (para. 74) - The Tribunal finds insufficient support that the Fund agreed to “cleanse the Applicant’s record.” The Fund rejected Applicant’s proposed broader prohibition on referring to the 1992 and 1994 assessments and also rejected his proposal for “expungement” of portions of the APRs. (para. 75) - Negotiating history shows both parties shared an understanding sealing was intended to facilitate Applicant’s ability to secure employment outside the Fund, but the Assistant Director believed inclusion of the information in the internal 1996 SBF Report did not infringe the “spirit of the Agreement” because the Report was for internal circulation and unlikely to be revealed to prospective employers. Staff were prohibited from disclosing Report information outside the Fund. (para. 76) - The Tribunal concludes neither the language nor the negotiating history supports that the parties intended a full “cleansing” of Applicant’s performance record. The record remained in existence; only access to specific elements objected to by Mr. “V” was blocked. (para. 77) - The Tribunal emphasizes the importance of enforcing negotiated settlement and release agreements where a staff member receives benefits upon separation in exchange for release of claims; tribunals look for individualized bargaining and exchange of consideration as indicia the agreement reflects a real balancing of interests. (para. 78–79) *Administrative Tribunal (paras. 54–79).* ### 80. In Alexander Frederick Kirk, Applicant v. International Bank for Reconstruction and ### In Alexander Frederick Kirk, Applicant v. International Bank for Reconstruction and Development, Respondent, WBAT Decision No. 29 (1986) and related Administrative Tribunal analysis ### Enforceability of broad release provisions and consideration - The WBAT enforced the release provisions of a settlement agreement against the applicant’s contention that it did not preclude the particular claim he presented to the administrative tribunal. - The WBAT examined both the language and the negotiating history of the agreement, concluding that “the broad release provision embraced the Applicant’s preexisting salary claim” (WBAT Decision No. 29, para. 32). - The WBAT found the agreement supported by consideration because the applicant “had received substantial benefits in exchange for the broad release provision” (WBAT Decision No. 29, para. 39), noting: - “The arrangements for paid leave, for other financial benefits, and for outplacement assistance, were not entitlements of staff members retiring early; to a significant degree, the grants were within the Respondent’s discretion. The only promise made by the Applicant in exchange for these benefits was expressed in the release provision he challenges here. The Tribunal therefore concludes that that promise was supported by a valid cause or consideration.” (para. 39) - The WBAT emphasized that entering a settlement to avoid a less pleasant alternative does not invalidate the agreement: “the desire to avoid a less pleasant alternative is always the motivation for entering into a settlement agreement, and cannot provide a basis for overturning it.” (WBAT Decision No. 29, para. 35) - The WBAT noted that where the language of a release is clear, an applicant seeking a narrower release should have “expressly sought some qualification or limitation in the wording of the contract” (WBAT Decision No. 29, para. 31). ### Negotiation context, counsel involvement, and voluntariness - The Administrative Tribunal referenced Arda Kehyaian v. IBRD, WBAT Decision No. 130 (1993), which held that in release agreements staff members are assumed to have balanced benefits and to have consented to the proposed agreement under pressures inherent in the process that do not by themselves constitute duress (WBAT Decision No. 130, para. 26). - In the present case (Mr. “V”), Applicant sought additional wording to protect against later actions but that wording was rejected by the Fund. Applicant was assisted by counsel in negotiations at least in part, which the Tribunal considered indicative that the Retirement Agreement reflected a considered choice by Applicant. - The Tribunal concluded that where vigorous, individualized negotiation occurred and alternative language was proposed and rejected, the plain meaning of negotiated terms should be accorded effect. ### Enforcement of the Retirement Agreement and assessment of remedies - The Administrative Tribunal concluded that the specific terms of the Retirement Agreement must be enforced and that Applicant’s construction of those terms must be rejected. - The Tribunal found that Applicant relinquished litigation rights and rehabilitative remedies in exchange for substantial consideration, including “unprecedented” large monetary and lasting pension benefits as described by the Fund. ### Alleged conflict between Retirement Agreement and SBF reporting requirements - Applicant contended the Fund’s contractual obligations under the Retirement Agreement prevailed over internal law requiring preparation and circulation of the SBF Report; this contention assumed a conflict between the Agreement and SBF reporting requirements. - The Tribunal concluded that inclusion in the 1996 SBF Report of information relating to Applicant’s performance did not violate the Retirement Agreement. The Agreement required: - sealing of his 1992 and 1994 performance reports and destruction of copies; - removal of the numerical ratings for those years from the personnel data base; - an obligation to keep confidential the terms of the Agreement. - The SBF reporting requirements required inclusion in a “Strictly Confidential” report with limited circulation in the Fund a listing of cases, not identified by name, giving reasons for expenditure of SBF funds in each case. - Conclusion: the Retirement Agreement and SBF reporting requirements were not in conflict; the question whether the Retirement Agreement prevails did not arise. ### Alleged illegality for nondisclosure of SBF reporting requirements during negotiations - Applicant asserted the Fund acted illegally by not disclosing SBF reporting requirements during negotiation of the Agreement. - The Tribunal referenced IMFAT Judgment No. 1996-1 (April 2, 1996) (Mr. M. D’Aoust v. IMF) where the Tribunal held that although the Fund and applicants are not in an equal bargaining position and relevant undisclosed information can support a challenge, acceptance of an offer is only a presumption against challenge and does not bar claims of misrepresentation or irregularity (D’Aoust, para. 12). - Applying D’Aoust, the Tribunal concluded that even if SBF reporting requirements were “relevant information” in the Fund’s possession, the Fund did not deliberately mislead Applicant, misrepresent facts, or engage in irregularity by not disclosing those requirements during negotiation of the Retirement Agreement. - The Tribunal noted that disclosure might have transgressed the “Strictly Confidential” classification of the SBF Report. ### Whether circulation of the 1996 SBF Report violated rules, regulations, or duties independent of the Retirement Agreement - Applicant alleged violations of: - GAO No. 35 (Information Security); - the N Rules; - guidelines governing preparation of the Report; - and that circulation was “arbitrary and capricious” or “at least grossly negligent, if not intentional”. 1) GAO No. 35 (Information Security) - Applicant advanced two prongs under GAO No. 35: - (1) Retirement Agreement required information pertaining to Applicant in the 1996 SBF Report be classified higher than “Strictly Confidential” (Section 4.02.3); - (2) by allegedly violating the Retirement Agreement, the Fund also violated Section 7.02 (iii) of GAO No. 35, which requires honoring agreements under which information is provided. - The Tribunal rejected the first prong, noting the SBF Report summarized information and did not mention Mr. “V”’s performance ratings; the sealed APRs’ content was distinct from the summary in the SBF Report. - The Tribunal explained the only classification higher than “Strictly Confidential” is “Secret” and quoted the “Secret” criteria (Section 3.04.4) and the guidance that “STRICTLY CONFIDENTIAL” should be used sparingly and “SECRET” only in exceptional circumstances (Section 3.05.3). - The objective of GAO No. 35 balances protection against unauthorized access with information flow and organizational efficiency (Section 1.02). - The Tribunal concluded it was reasonable managerial discretion to classify the 1996 SBF Report as “Strictly Confidential” and to circulate it to the Managing Director, Deputy Managing Directors, Senior Personnel Managers, the Ombudsperson and the SAC Chairman, given the Report’s role in promoting transparency of personnel practices and Fund-wide reactions to SBF allocations. - The Tribunal rejected the second prong, finding Section 7.02 (iii) inapplicable because “no information or records were provided to any person under the Retirement Agreement,” and the argument presupposed a breach of the Agreement which the Tribunal did not sustain. 2) The N Rules - The Tribunal identified N-6 as the only N Rule pertaining to protection of information: - N-6 prohibits staff from revealing unpublished information without Managing Director authorization or using unpublished information for private advantage (adopted as part of N-5 September 25, 1946, amended June 22, 1979). - Because the 1996 SBF Report was circulated only to addressees within the Fund, the Tribunal determined N-6 did not apply to these circumstances. 3) Rules regarding preparation of the SBF Report - Applicant alleged the ADM Policy memorandum limited disclosure of beneficiaries’ names to the Managing Director (the memorandum in fact notes names are to be provided to the Deputy Managing Director). - The Tribunal observed that entries in the circulated Report could be identifiable (nationality, departmental affiliation, age) and that beginning with the 1997 Report nationalities were no longer revealed to enhance confidentiality. - The Tribunal was unable to conclude that possible identifiability of some recipients in the circulated Report violated guidelines governing preparation of the Report. 4) Any other duty of confidentiality; claims of arbitrariness or gross negligence - The Tribunal found the policy requiring preparation and circulation of the Report was based on transparency and equity considerations and that selecting thirty high-level Fund personnel to receive the Report was reasonably designed to gather Fund-wide response to SBF allocations. - The Tribunal rejected the allegation that circulation amounted to “at least grossly negligent, if not intentional” misconduct, citing ADBAT Decision No. 20 (1996) (Ronald K. Chan v. Asian Development Bank) where restricted internal notification did not constitute insensitive or negligent publicity. - The Tribunal noted that while the Assistant Director of Administration “would have done well to consider more fully any relevant implications of the Retirement Agreement,” any arguable lack of sensitivity was not gross negligence. ### Outstanding question addressed - The Tribunal framed and resolved the question whether the Fund is liable for actions of the Staff Association Committee with respect to handling the 1996 SBF Report in the context of the Report’s internal circulation and confidentiality classifications; the Tribunal’s findings on managerial discretion, applicability of GAO No. 35, N Rules, and Report preparation guidelines inform that assessment. *Administrative Tribunal findings and WBAT decisions as cited in the cited Administrative Tribunal analysis* ### 104. Applicant asserts that the Staff Association Committee (“SAC”), in furtherance of its ### j1999-2 - 104. ### SAC circulation and Tribunal jurisdiction - Applicant asserts the Staff Association Committee (“SAC”), “in furtherance of its goals,” provided copies of the 1996 SBF Report at its information desk, making it available for unfettered review by any staff member. - The Tribunal concludes that the argument asking it to impute liability to the Fund for the SAC’s actions fails because the activities of the SAC are not “administrative acts” taken in the administration of the staff of the Fund and accordingly are not within its jurisdiction. - The Fund circulated to the SAC Chairman a copy of the 1996 SBF Report; the Report was classified and marked “Strictly Confidential” pursuant to GAO No. 35. - Applicant testified (unchallenged) before the Grievance Committee that the Report was reproduced and left in view of visiting staff members in the office of the Staff Association, and that at the time of the alleged actions by the SAC he was serving as its Vice-Chairman. ### Legal status and functions of the Staff Association - Rule N-14 (Staff Regulations) guarantees the right of staff to associate: “Persons on the staff of the Fund shall have the right to associate in order to present their views to the Managing Director and the Executive Board, through representatives, on matters pertaining to personnel policies and their conditions of service.” (IMF Rules and Regulations, Rule N-14, Adopted June 22, 1979.) - The Staff Association is a self-governing organization governed by a seven-member Staff Association Committee (including a Chairman, Vice-Chairman and Secretary-Treasurer) elected from the membership. - The Association may be dissolved by its membership by referendum with the approval of two-thirds of the membership. (Constitution of the Staff Association, Articles IV, V and XV.) - Purposes (Constitution, Article II): - “a. to promote the interests and general welfare of the staff; and” - “b. to cooperate with the Managing Director in furthering the efficient conduct of the work of the staff.” - Activities (Constitution, Article III): - “a. arrange for communicating the views of the staff to the management with respect to any matter affecting the staff;” - “b. assist the Managing Director, at his request, in matters relating to the staff; and” - “c. organize and provide facilities for recreational, educational, and welfare activities for the staff.” ### Tribunal’s jurisdiction ratione materiæ and definition of “administrative act” - The Administrative Tribunal’s jurisdiction is limited by Article II of the Statute to challenges by an adversely affected staff member to the legality of an “administrative act.” - An “administrative act” is defined as “any individual or regulatory decision taken in the administration of the staff of the Fund.” (Statute, Article II, Sections 1a. and 2.a.) - The Report of the Executive Board and Tribunal commentary emphasize that administrative acts typically encompass decisions affecting terms and conditions of employment, including staff regulations set forth in the N Rules. - The Tribunal found that an act of the SAC in making the Report available to staff is not a “decision taken in the administration of the staff of the Fund” and therefore not an administrative act within the Tribunal’s jurisdiction. - The Tribunal rejected the argument that the Fund’s act of transmitting the Report to the SAC Chairman renders the SAC’s subsequent handling of the Report attributable to the Fund; the act of transmission is distinct from the SAC’s independent handling. - The Staff Association acts independently of the Fund; even if it sometimes functions in an advisory role to management, its primary purpose is to represent staff interests rather than act as an extension of Fund management. - Rule and procedural constraints: - Pleadings are exchanged between an applicant and the Fund; the Staff Association may not be an applicant (Art. II, Section 1) nor an intervenor (Rule XIV, para. 1). - The Tribunal may permit the Staff Association to communicate views as amicus curiae (Rule XV). ### Applicant’s claimed injury and evidentiary findings - Applicant contends distribution of the 1996 SBF Report damaged his reputation within the Fund and impaired his ability to obtain supportive references and outside employment. - The Fund asserts Applicant established no nexus between preparation/circulation of the Report and his inability to find employment or any damage to his professional reputation. - Tribunal findings: - Applicant introduced no evidence that anyone responsible for denying him employment acted on knowledge obtained from the SBF Report. - Applicant’s assertions about specific former staff or potential employers having knowledge of performance ratings were speculative and unproven; no particular connection to the SBF Report was alleged. - Applicant’s claim that his former department intervened to prevent a Fund consultancy bore no relation to the circulation of the SBF Report and, as to requested documents on that matter, the Tribunal found them “irrelevant” to the case. - The Tribunal noted that “wide-spread reputational damage in the community” pre-existed the Retirement Agreement; the Retirement Agreement could not be treated as obscuring that pre-existing fact. - Conclusion: The Administrative Tribunal concludes that Applicant has not shown he suffered injury to his professional reputation or to his ability to find alternative employment as a result of the Fund’s alleged actions in preparing and circulating the 1996 SBF Report. ### Additional issues raised by Applicant - Representation by the Fund’s Legal Department before the Administrative Tribunal: - Applicant objected that Article X, Section 3 of the Tribunal’s Statute (which provides: “3. Each party may be assisted in the proceedings by counsel of his choice, other than members of the Fund’s Legal Department, and shall bear the cost thereof, subject to the provisions of Article XIV, Section 4 and Article XV.”) was violated by Legal Department representation of the Fund. - The Tribunal concluded that Article X, Section 3 is intended to prohibit members of the Legal Department from representing Applicants (to avoid conflict of interest), not to bar the Legal Department from representing the Fund. - The Statute’s Commentary confirms the prohibition’s purpose: to prevent members of the Fund’s Legal Department from assisting applicants because of “the inherent conflict of interest such assistance would pose.” - The Tribunal’s Rules contemplate representation of the Fund by the Legal Department (Registrar transmits applications to the General Counsel), and in practice the Legal Department has represented the Fund. - Conclusion: Applicant’s objection to Legal Department representation of the Fund is not sustained. - Applicant’s challenge to the Grievance Committee’s jurisdiction and standard of review: - Applicant argued the Grievance Committee lacked subject matter jurisdiction because the complaint pertained to a defined contractual relationship rather than exercise of administrative discretion. - The Grievance Committee’s jurisdiction and standards are governed by GAO No. 31, Rev. 3, including: - Section 4.01: Committee’s jurisdiction to hear complaints that a staff member was adversely affected by a decision inconsistent with Fund regulations governing personnel and conditions of service. - Section 4.02: Jurisdiction only after exhaustion of applicable administrative review channels, unless Managing Director (or designee) permits direct submission. - Section 4.03: Limitations excluding challenges to (i) decisions of the Executive Board; (ii) staff regulations as approved by the Managing Director; or (iii) decisions under the Staff Retirement Plan within competence of Admin or Pension Committees. - Section 4.04: The Committee decides whether it has jurisdiction for the purpose of proceeding with a grievance. *Administrative Tribunal judgment (excerpt).* ### Section 5. Standard of Review ### Section 5. Standard of Review ### Scope and standards of the Grievance Committee - 5.01 Non-Discretionary Decisions: The Grievance Committee shall review each non-discretionary decision challenged by the grievant and shall determine whether the challenged decision was consistent with and taken in accordance with applicable Fund rules and regulations. - 5.02 Review of Discretionary Decisions: When a grievant challenges a decision made in the exercise of discretionary authority, the Committee shall uphold the challenge only if it finds that the decision was arbitrary, capricious, or discriminatory, or was procedurally defective in a manner that substantially affected the outcome. ### Jurisdictional dispute between Applicant and the Fund - The Fund contends that the Grievance Committee’s authority to “. . . hear any complaint by a staff member to the extent that the staff member contends that he or she has been adversely affected by a decision that was inconsistent with Fund regulations governing personnel and their conditions of service” embraces contractual as well as regulatory requirements; therefore the Fund concludes the Grievance Committee had jurisdiction to decide Applicant’s claim. - The Tribunal notes it is “odd” for an Applicant who submitted his case to the Grievance Committee to later argue that that body lacked jurisdiction; ordinarily such an argument would be raised as a defense to a motion to dismiss for failure to exhaust applicable channels of review. - If no applicable channels of administrative review existed, an Application must be filed no more than three months after notification of the challenged decision. Article VI, Section 1 provides: “An application challenging the legality of an individual decision shall not be admissible if filed with the Tribunal more than three months after all available channels of administrative review have been exhausted, or, in the absence of such channels, after the notification of the decision.” ### Relationship between the Tribunal and the Grievance Committee; standard of review applied by Tribunal - The Tribunal is authorized to weigh the record generated by the Grievance Committee “as an element of the evidence before it,” but the Tribunal does not stand in the position of an appellate court reviewing the actions of that Committee. - Quoted from D’Aoust v. International Monetary Fund, IMFAT Judgment No. 1996-1 (1996): “17.... Moreover, the Tribunal does not accept the Applicant’s assertion that it functions as an appellate body from the Grievance Committee because the Tribunal’s competence is not limited as it would be if it were a court of appeal; e.g., it makes findings of fact as well as holdings of law. At the same time, the Tribunal may take account of the treatment of an applicant before, during and after recourse to the Grievance Committee. The Tribunal is authorized to weigh the record generated by the Grievance Committee as an element of the evidence before it.” - Because the Tribunal makes its own independent findings of fact and holdings of law, it is not bound by the reasoning or recommendation of the Grievance Committee. ### Applicant’s challenge to the Grievance Committee’s jurisdiction and standard of review - The Tribunal finds it would be difficult for Applicant to show he was “adversely affect[ed]” by the Grievance Committee’s exercise of jurisdiction or its standard of review, assuming Applicant intends his challenge as a challenge to a “regulatory decision” under Article II. Article II, Section 1.a. provides: “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; . . .” - GAO No. 31 grants the Grievance Committee authority to decide, for the purpose of proceeding with a grievance, whether it has jurisdiction over a matter (GAO No. 31, Section 4.04). Applicant did not specifically challenge the legality of this provision of the GAO. - The Administrative Tribunal accordingly concludes that it cannot entertain Applicant’s contentions about the Grievance Committee’s exercise of jurisdiction. ### Fund’s request for costs for defending allegedly frivolous claims - The Fund requests, under Article XV of the Statute of the Administrative Tribunal and the Tribunal’s Order No. 1997-1, that the Tribunal award it costs incurred in defending allegedly frivolous claims brought by Applicant in the underlying Grievance Committee proceedings; those allegedly unfounded claims were not included in the Application before the Tribunal. - Article XV of the Tribunal’s Statute provides: “1. The Tribunal may order that reasonable compensation be made by the applicant to the Fund for all or part of the cost of defending the case, if it finds that: a. the application was manifestly without foundation either in fact or under existing law, unless the applicant demonstrates that the application was based on a good faith argument for an extension, modification, or reversal of existing law; or b. the applicant intended to delay the resolution of the case or to harass the Fund or any of its officers or employees. 2. The amount awarded by the Tribunal shall be collected by way of deductions from payments owed by the Fund to the applicant or otherwise, as determined by the Managing Director, who may, in particular cases, waive the claim of the Fund against the applicant.” - The Fund did not allege that Applicant brought frivolous claims before the Tribunal and conceded the allegedly unfounded claims made in administrative review “have not been included in the Application to the Tribunal.” Therefore the Fund failed to allege the predicate required for an award under Article XV (that “a. the application was manifestly without foundation...” or “b. the applicant intended to delay...”). - The Fund argued that Order No. 1997-1 supports awarding costs for legal representation during administrative review because that Order included costs of legal representation in administrative proceedings where the statutory predicate for an award of costs (Article XIV, Section 4) had been met. Article XIV, Section 4 provides: “4. 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.” - The Tribunal distinguishes Order No. 1997-1 from the Fund’s present request: - In Ms. “C.” the statutory trigger that the Application be “well-founded in whole or in part” had been met; here the statutory trigger that the Application be “manifestly without foundation” has not even been alleged. - Order No. 1997-1 gave effect to a principle embodied in GAO No. 31; adopting the Fund’s argument here would effectively supply a provision absent from GAO No. 31 permitting costs to be awarded against a grievant for pressing frivolous claims—a change the Tribunal cannot make. - Article XIV, Section 4 and Article XV serve different statutory purposes and are not symmetrical: Article XIV, Section 4 promotes cost-shifting in favor of prevailing applicants to increase access to the Tribunal; Article XV penalizes the bringing of frivolous claims to deter abuse of the review process. - Conclusion on costs: There is no basis in Article XV or in the Tribunal’s interpretation of Article XIV, Section 4 in Order No. 1997-1 for the Tribunal to award costs to the Fund for defending any frivolous claims brought by Applicant in the Grievance Committee. ### Tribunal’s findings and final decision - FOR THESE REASONS, the Administrative Tribunal of the International Monetary Fund unanimously decides: - 1. The Fund did not act illegally, either with respect to the Retirement Agreement it had entered into with Applicant or with respect to any Fund rule or regulation, when it prepared and circulated the 1996 SBF Report, in accordance with Fund Policy. - 2. The preparation of the SBF Report and its circulation to a limited number of addressees within the Fund, which by way of explanation for the disbursement of SBF resources on Applicant’s behalf characterized his performance as “[u]nable to produce work that met department’s standards”, did not violate any of the following clauses of the Retirement Agreement: paragraph 3 (sealing of Applicant’s 1992 and 1994 APRs); paragraph 4 (removal of the numerical APR ratings for 1992 and 1994 from the “personnel data base”); or paragraph 8 (confidentiality clause). Nor did the Fund agree as part of the Retirement Agreement to “cleanse” Applicant’s record or to refrain from producing any document subsequent to the conclusion of that Agreement that might reflect on his performance. - 3. There is no conflict between the Fund’s internal law, requiring circulation of the SBF Report, and its contractual obligations to Applicant under the Retirement Agreement. Likewise, the Fund did not act illegally or improperly in not bringing to Applicant’s notice during negotiations with Applicant the SBF reporting requirements. - 4. The preparation and circulation of the 1996 SBF Report did not violate any Fund rules or regulations or breach any duty owed by the Fund to Applicant independent of the Retirement Agreement, either under GAO No. 35, the N Rules, the SBF reporting requirements themselves, or any other duty of confidentiality. - 5. Applicant’s claim that the Fund is liable for alleged acts of the Staff Association Committee (SAC) with respect to the handling of the 1996 SBF Report that was circulated on a “Strictly Confidential” basis to the SAC Chairman is not within the Tribunal’s jurisdiction ratione materiæ, which is limited to “decision[s] taken in the administration of the staff”. - 6. As the Tribunal holds that the Fund did not breach the Retirement Agreement or violate any Fund rule or regulation in its preparation and distribution of the 1996 SBF Report, and that Applicant’s claim that the Fund is responsible for acts of the SAC is not within the Tribunal’s jurisdiction, it is therefore not necessary to reach the question of whether Applicant suffered any injury thereby. In any event, it holds that Applicant has not established any nexus between the Fund’s acts in the preparation and distribution of the 1996 SBF Report and Applicant’s failure to obtain new employment. - 7. The Tribunal holds that the representation of the Fund by its Legal Department before the Administrative Tribunal does not violate Article X, Section 3 of the Tribunal’s Statute. - 8. The Tribunal cannot entertain Applicant’s challenge to the Grievance Committee’s exercise of jurisdiction in his case or its application of its standard of review. - 9. Finally, as there is no supportive statutory basis, the Tribunal holds that it cannot grant the Fund’s request for an award of costs for defending allegedly frivolous claims brought by Applicant in the Grievance Committee. --- _Source: https://www.imf.org/-/media/files/imfat/j1999-2.pdf_