## j2005-1 — Administrative Tribunal judgment (proceedings March 17–18, 2005)

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### The dispute, parties’ contentions, and procedural history
- Tribunal composition: Judge Stephen M. Schwebel, President; Judges Nisuke Ando and Michel Gentot, Associate Judges.
- Applicant: Mr. “F”, former staff member; Respondent: International Monetary Fund (the Fund).
- Applicant’s principal contentions:
  - Abolition of his position resulted in separation and was motivated by religious discrimination.
  - He was subjected to a hostile work environment based on religious affiliation.
  - Abolition was a pretext for removal rather than justified by institutional needs.
  - He was qualified for redesigned and other posts but was not considered or assisted in good faith.
  - He was not given adequate notice of abolition.
- Respondent’s principal defenses:
  - Abolition was lawful managerial discretion to meet legitimate institutional needs.
  - Applicant was not qualified for the redesigned position or the second available position.
  - No religious discrimination influenced the abolition or Applicant’s career.
  - Abolition, separation, and reassignment assistance complied with applicable procedures.
- Key procedural dates and filings:
  - Application filed with the Administrative Tribunal on November 20, 2003 (considered filed on original date after correction of deficiency).
  - Application transmitted to Respondent on December 9, 2003.
  - Respondent’s Answer filed January 23, 2004; Applicant’s Reply filed March 1, 2004; Fund’s Rejoinder filed April 1, 2004.
  - Grievance Committee Recommendation and Report issued July 31, 2003; Fund management accepted Recommendation by letter of August 26, 2003.
  - Tribunal proceedings took place March 17–18, 2005; the Tribunal decided not to hold oral proceedings.

### Employment history, restructuring, and abolition facts
- Employment chronology:
  - Joined the Fund February 4, 1980 as a Transcriber of “Language 1”.
  - 1990: appointed Translation Preparation Assistant at Grade A6.
  - October 1996: assumed Translation Coordination Assistant (“TCA”) position at Grade A6 after temporary assignment.
  - 1998: promoted to Grade A7.
  - TCA position abolished effective November 1, 2001.
- Organizational changes:
  - 1999: “Language 1” Section brought under Technology and General Services (“TGS”).
  - 2001: “Language 1” merged into a larger “Languages 1 & 2” Division; three support positions abolished in October 2001.
  - Merger took effect August 1, 2001; implementation delayed until October 2001 due to Applicant’s health concerns.
- Notice and separation timeline:
  - October 24–25, 2001: Applicant informed of abolition; notice stated abolition effective November 1, 2001.
  - Six-month reassignment period set November 1, 2001 – April 30, 2002 (pursuant to GAO No. 16).
  - Administrative arrangements: if reassignment not identified, extended notice period of 120 days then up to maximum 22.5 months of separation leave at full pay based on years of service.
  - Applicant separated from service effective July 31, 2004.

### Investigations, internal reviews, and evidence regarding Section problems
- Senior economist assignment and findings:
  - Senior economist appointed for two-year assignment starting November 30, 1998 to diagnose Section problems.
  - Findings included serious dysfunction, doubts about reliability of production statistics, understating and inflating of staff achievements by the Section Chief, and high resource costs addressing conflicts.
  - Senior economist praised Mr. “F” as “reliable, can-do,” with superior organizational skills and noted he “performed at the level of a research assistant” and contributed to DTP work and the [“Language 1”] Currency list.
  - TGS Language Services annual review (2000 APR) recommended training to enhance DTP, supervisory skills, ability to handle stress, and “most importantly to bring his written English skills up to Fund standards.”
  - Despite reservations in 2000 APR, Mr. “F” received a “1” performance rating for 2000; APRs for 1996–1999 contained “1” and “2” ratings.
- Administrative review and consultant investigation:
  - Applicant sought administrative review under GAO No. 31 on February 21, 2002; HRD conducted technical review and retained outside consultant to investigate discrimination/harassment allegations.
  - Director of Human Resources rendered decision exhausting administrative review on August 8, 2002, concluding TGS acted properly.

### Legal standards applied by the Tribunal
- Standard of review for abolition of position:
  - Abolition is a managerial decision reviewable only for abuse of discretion: can be overturned if “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.”
  - Test under GAO No. 16, Rev. 5 (July 10, 1990), Section 13: position abolished or redesigned to meet institutional needs and incumbent is no longer qualified; six-month reassignment obligation; notice provisions in Section 13.02; entitlement to resettlement and separation benefits per Sections 13.03–13.04.
- Material-difference test:
  - International jurisprudence requires that differences between old and new positions be “ones of substance” or a “clear material difference” to justify abolition/redesign.

### Tribunal analysis on duties, qualifications, and legitimacy of restructuring
- Comparative duties:
  - TCA responsibilities (2000 APR) included job receipt/distribution, contractor monitoring, dispatch and database entries, statistical reporting and word count data, attendance collection, time report verification, supply management, and transcription support (including WEO support).
  - TP/PA position required “Language 1” as a mother tongue, excellent command of English, proficiency in Quark Xpress, state-of-the-art desk top publishing skills, proofreading and editing in “Language 1”, and ability to train/supervise TPAs.
  - TPA post-restructuring required desk top publishing competence and ability to prepare “Language 1” documents in final form consistent with IMF norms.
- Tribunal conclusions on substance and qualifications:
  - TP/PA responsibilities were materially different and more demanding than those of the TCA, particularly requiring an excellent aptitude in English not possessed by Applicant (paras. 56–59).
  - The Fund’s stated reasons—redeployment to areas of increased need, alignment within new Division, economies of scale at TCA level, and insufficient TCA workload in “Language 1”—were credible and sufficient to justify abolition (paras. 61–62).
  - Tribunal found Fund’s position that Applicant was not qualified for the redesigned TP/PA post persuasive, noting managerial discretion in assessing qualifications (paras. 63–70).

### Findings on improper motive, harassment, supervisory failures, and discrimination
- Improper motive:
  - Tribunal assessed dual motives and precedent: restructuring can be legitimate even if it also aims to resolve personnel conflicts, provided service-related grounds are sufficient.
  - Tribunal found “There is no evidence that those who took the decision to abolish Mr. ‘F’’s position were so motivated” by religious discrimination with respect to the abolition decision.
- Harassment and hostile work environment:
  - Tribunal found the Section “suffered from an atmosphere of religious bigotry and malign personal relations among certain of its members,” and Mr. “F” suffered accordingly.
  - Specific incidents alleged by Applicant included threats to make his life “miserable” if he did not convert, refusal by co-workers to take direction, orders to remove a holy text verse and a religious symbol from his key ring, and display of majority-group religious posters perceived as provocative.
  - Evidence showed supervisors and management did not take effective corrective measures; a senior economist intervened at times but hostility persisted after his departure.
  - Tribunal concluded Applicant suffered harassment as defined in the Fund’s Policy on Harassment, though Applicant may have contributed to the malign atmosphere by his own behavior.
- Supervisory responsibilities and failure:
  - Fund policies cited: Rule N-2 (non-discrimination), Discrimination Policy (July 3, 2003), Policy on Harassment (January 1995; Staff Bulletin 99/15), and Code of Conduct (1998) imposing duties on supervisors to address harassment and promote tolerance.
  - Tribunal found supervisors did not “move vigorously, or indeed moved at all, to investigate Mr. ‘F’’s complaints of religious hostility or to discipline staff members found to be the source of such hostility.”

### Procedural fairness, notice, and reassignment obligations
- Notice findings:
  - GAO No. 16, Section 13.02 entitles separated staff to 60 calendar days’ notice, extendable up to 120 calendar days by the Director of Administration.
  - Tribunal concluded fair and transparent procedures require reasonable advance notice of the prospect of abolition so staff can contest the decision; the summary notice given to Mr. “F” was “hardly adequate.”
  - Fund’s interpretation that the extended notice period satisfied obligations did not cure the lack of reasonable advance notice; Tribunal found a procedural failing.
- Reassignment efforts:
  - GAO No. 16, Section 13.01 requires efforts over not less than six months to reassign abolished-position staff consistent with qualifications and to provide appropriate training where helpful.
  - Tribunal found both parties at fault: the Fund’s efforts may not have been “energetic or pro-active,” and Mr. “F” showed little initiative in seeking alternatives (e.g., did not apply to the TPA position; declined certain opportunities).
  - Tribunal did not award compensation on the reassignment count, finding shared fault.

### Remedies, compensation, and costs
- Remedy authority:
  - Article XIV, Section 1 of the Statute permits the Tribunal to prescribe rescission of a decision and measures including payment of money to correct effects.
  - Tribunal may award compensation for procedural failures and process-related unfairness even if the substantive decision is sustained.
- Awards and orders:
  - The Tribunal sustained the lawfulness of the abolition as managerial discretion (operative paragraph 1).
  - The Tribunal found Mr. “F” entitled to financial compensation for:
    - Fund’s failure to take effective measures in response to religious intolerance and workplace harassment directed at Mr. “F”; and
    - Fund’s failure to give him reasonable notice of the abolition of his post (operative paragraph 2).
  - Monetary award: Mr. “F” is awarded the sum of $100,000 (operative paragraph 3).
  - Costs: The Fund shall pay Applicant the reasonable costs of his legal representation, to be assessed by the Tribunal following further submissions (operative paragraph 4). The Tribunal noted precedent permitting partial awards of claimed costs where success was limited.
  - Tribunal expressly rejected rescission of the abolition decision and did not require reinstatement; relief awarded was monetary and for costs.

*Administrative Tribunal of the International Monetary Fund, Washington, D.C., March 18, 2005.*

### Introduction

### Introduction

### The dispute and claims
- On March 17 and 18, 2005, the Administrative Tribunal of the International Monetary Fund, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges, met to adjudge the case brought against the International Monetary Fund by Mr. “F”, a former staff member of the Fund.
- Applicant’s principal contentions:
  - The decision to abolish his position resulted in his separation from service and was motivated by religious discrimination.
  - During his employment he was subjected to a hostile work environment based on his religious affiliation, which differed from that of his immediate co-workers.
  - The abolition of his position, part of a restructuring of his department, was a pretext for removing him from his work unit rather than justified by institutional needs.
  - He was qualified to meet the requirements of the redesigned position and a second position arising from the restructuring but was not considered for these positions nor given good faith assistance in finding alternative employment in the Fund.
  - He was not given adequate notice of the abolition of his position.
- Respondent’s principal defenses:
  - The decision to abolish Applicant’s position was a lawful exercise of managerial discretion taken in the interest of legitimate institutional needs.
  - Mr. “F” was not qualified for the redesigned position or the second position that became available.
  - Neither the abolition decision nor Applicant’s career were adversely affected by religious discrimination.
  - The abolition of post, separation, and efforts to assist in reassignment were carried out in accordance with applicable procedures, including that for notice of separation.

### Procedural history and jurisdictional matters
- Filing and pleadings:
  - Mr. “F” filed his Application with the Administrative Tribunal on November 20, 2003.
  - The Registrar advised of a deficiency under Rule VII, para. 3 and granted fifteen days to correct it; the Application, having been brought into compliance within the indicated period, is considered filed on the original date.
  - The Application was transmitted to Respondent on December 9, 2003.
  - Respondent filed its Answer on January 23, 2004.
  - Applicant submitted his Reply on March 1, 2004.
  - The Fund’s Rejoinder was filed on April 1, 2004.
- Notice within the Fund:
  - On January 6, 2004, pursuant to Rule XIV, para. 4 of the Rules of Procedure, the Registrar issued a Summary of the Application within the Fund.
- Oral proceedings:
  - The Tribunal decided not to hold oral proceedings, which neither party had requested, as they were not necessary for disposition of the case.
  - The Tribunal considered the transcript of oral hearings of the Grievance Committee, at which Applicant and other witnesses testified.

### Requests for production of documents and Tribunal rulings
- Applicant requested production of:
  1. Working papers, memoranda, e-mails, etc. showing how decisions on restructuring and abolition of Applicant’s position were made;
  2. The report of the former Ombudsperson that had led to the appointment of a senior Fund economist from outside Language Services to manage the Section and advise on solving problems that had arisen in the Section;
  3. The senior economist’s reports on the Section, extracts of which had been produced during the Grievance Committee’s proceedings;
  4. The senior economist’s terms of reference or management instructions regarding his tasks; and
  5. The report of an outside consultant engaged by the Director of Human Resources to investigate some of Applicant’s claims after Mr. “F” lodged a request for administrative review pursuant to GAO No. 31.
- Procedural handling of document requests:
  - Respondent had the opportunity to present observations under Rule XVII.
  - On December 10, 2004, the Tribunal denied Requests 1 and 4 on the ground that Applicant had not shown denial of access, the Fund having provided all documents responsive to these requests as part of the Grievance Committee’s proceedings.
  - Request 2 was denied on the ground that the Ombudsperson’s Terms of Reference provide that the Ombudsperson may not be called as a witness or be required to provide information in Tribunal proceedings.
  - The Tribunal requested delivery of the remaining responsive documents for in camera inspection on December 15, 2004.
  - On February 28, 2005, after in camera review and consideration of the parties’ views:
    - Request 3 (senior economist’s reports): denied insofar as only documents relating directly to Applicant should be produced to protect privacy; the same standard had been applied by the Grievance Committee.
    - Request 5 (outside consultant’s report): denied because the report flowed from Applicant’s request for administrative review rather than from proceedings leading up to the impugned decision and was therefore not relevant to that decision; disclosure was unnecessary as the Director of Human Resources’ August 8, 2002 letter fairly summarized the Report’s conclusions and similar information was in the record.
- Legal and procedural considerations cited:
  - Rule VII (Applications), Rule XIV, para. 4, Rule XVII (Production of Documents), and Article XII of the Tribunal’s Statute were applied as described.
  - The Tribunal noted protection of privacy and limits on calling the Ombudsperson as witness per the Ombudsperson’s Terms of Reference, June 1999.
  - The Tribunal distinguished its approach from an absolute “work product doctrine” while recognizing the need to preserve candor essential to administrative review and settlement processes.

### Factual background and employment history
- Employment chronology and position details:
  - Mr. “F” joined the Fund on February 4, 1980 as a Transcriber of his native language (“Language 1”).
  - Promotions and appointments:
    - 1990: appointed to the post of Translation Preparation Assistant at Grade A6.
    - October 1996: following a temporary assignment as Special Projects Assistant, assumed the position of Translation Coordination Assistant (“TCA”) at Grade A6.
    - 1998: promoted to Grade A7.
  - The position of TCA (Grade A7) was abolished effective November 1, 2001.
- Organizational restructuring:
  - In 1999, the “Language 1” Section, as part of the Bureau of Language Services (“BLS”), was brought under the administration of the newly created department of Technology and General Services (“TGS”).
  - TGS combined the functions of the BLS, the Bureau of Computing Services, parts of the Administration Department, and a number of other entities.
  - In 2001, refinements to TGS’s organizational structure merged the “Language 1” Section into a larger preexisting language Division to form the “Languages 1 & 2” Division.
  - As part of the restructuring, Mr. “F”’s and two other support positions in the “Languages 1 & 2” Division were abolished.

### Problems in the “Language 1” Section and management response
- Longstanding issues:
  - The “Language 1” Section experienced interpersonal conflict, questions about integrity and productivity, and complaints of ineffectual supervision almost from its inception and throughout Applicant’s twenty-one year tenure in the unit.
- Applicant’s characterization:
  - Applicant attributes the Section’s problems to religious animosity between adherents of one major religion (a large majority of the Section’s staff) and another religion of which Mr. “F” was an adherent.
  - Applicant asserts that after abolition of his position the Section became religiously homogeneous with no persons of his religion remaining.
  - Applicant maintains that the conflicts mirrored those in the part of the world where “Language 1” is spoken, particularly his native country.
- Respondent’s characterization:
  - Respondent contends the problems did not derive from religious animosity among staff.
- Management intervention:
  - In September 1998, the Deputy Managing Director was informed by the Administration Department that the situation had reached “crisis proportions.”
  - In October 1998, the BLS Director proposed a plan for a long-term solution, acknowledging the causes went beyond possible deficiencies of the Section Chief.
  - A senior economist from another Fund department was appointed for a two-year assignment to diagnose roots of the problems, recommend solutions, guide and advise the Section Chief, investigate complaints, and eventually recommend future structure, role, size and staffing of the Section.

*Administrative Tribunal of the International Monetary Fund, Introduction (proceedings March 17–18, 2005).*

### Section in an informed, balanced, and institutional manner, and

### Section in an informed, balanced, and institutional manner, and

### Background and investigative findings
- A senior economist was appointed for a two-year period starting November 30, 1998, to review the [“Language 1”] Section.
- The BLS Director reported that “... most staff from the [“Language 1”] Section had complained, through various institutional channels, about their general level of dissatisfaction with the running of the Section.” The Director further attributed a “... serious disfunctioning and in very high costs in terms of resources spent (often at senior staff level) in many meetings with ADM and the Fund management.”
- The senior economist reported that the then Section Chief “consistently understated the achievements and abilities of some staff members,” including those of Mr. “F”, while “inflated the achievement and skills of other staff,” including the staff member later appointed to the TP/PA position created after abolition of other positions.
- The senior economist asserted that the Section Chief “attempted to put [the other staff member] at a comparative advantage to take a leading role in the work on DTP [Desk Top Publishing] by inflating his qualifications and experience.”
- The senior economist concluded there were “doubts regarding the reliability of statistics produced to measure both the production of the Section and the individual performance of the staff,” suggesting that statistics were “massaged” in favor of staff preferred by the Section Chief. The BLS Director noted that the Section’s “production/productivity stats [statistics] is, to put it mildly, seriously in doubt.”
- The senior economist rated Mr. “F” highly and relied upon him to gather statistical information:
  - “At the outset, I found Mr. [“F”] easy to work with; he is a reliable, can-do operator, and possesses superior organizational skills. .... Although the content of his job remained the same, his work as TCA put tremendous pressure on his time. The translation jobs, both dispatched and requested, had increased by almost 50 percent over the previous year. Due to his superior organizational skills, the Section did not miss a deadline. .... [Mr. “F”] rose to the occasion and did a superior job. In fact, he performed at the level of a research assistant. I relied on him.
One objective for Mr. [“F”] was the production of the [“Language 1”] WEO in-house using Desk Top Publishing (DTP) techniques. He was able to produce a dummy version. However, due to the pressures from his work as TCA, the DTP received a lower priority. In addition, he completed the [“Language 1”] Currency list for the first time.”
- TGS Language Services officials’ views differed: the 2000 Annual Performance Review (APR) stated Mr. “F” “... bears some responsibility in the fact that team spirit and open communication were still lacking in the [“Language 1”] Section last year....” and recommended training to enhance DTP, supervisory skills, ability to handle stress, and “most importantly to bring his written English skills up to Fund standards.... [Mr. “F”] must realize that poor writing and communication skills will remain a serious handicap in his career development.”
- Despite the 2000 APR reservations, the senior economist recommended and Mr. “F” received a “1” performance rating for 2000. Applicant’s APRs for 1996-1999 show none of the strong reservations found in 2000; throughout his Fund career Mr. “F” uniformly received “1” and “2” performance ratings.
- The senior economist’s relationship with Language Services senior officials deteriorated, and he resigned from the assignment in mid-2000, citing inadequate support.

### Reorganization plans and rationale (2001)
- By January 2001, following departure of the senior economist and the Section Chief under review, TGS and HRD proposed reorganizing BLS language Sections to resolve longstanding problems in the [“Language 1”] Section.
- Key January 2001 proposal elements:
  - Combine three small language Sections into a single Division to achieve “economies of scale” and reduce duplication at the Translation Coordination Assistant (TCA) level: “... only one TCA would control the flow of documents for all three language sections under the supervision of the Chief of the new Division.”
  - Eliminate the [“Language 1”] Section TCA position and consolidate TPA/DTP and proofreader positions into a single role, with the two “saved” positions redefined as the new division chief and the new divisional TCA. The proposal observed “It is unlikely that any of the current incumbents in the [“Language 1”] Section would have the range of skills required for such a ‘combined’ TPA/DTP/proofreader position, and a new person would therefore need to be hired.”
  - Emphasized rebuilding the Section “without those staff members that have been at the heart of the Section’s continuous problems for many years under different supervisors.”
- March 2001: Plans for a “Phase 2 Reorganization” of TGS aimed at dissolving a layer of management overhead and reshaping/deploying functions, including removing senior management teams from the Bureau of Language Services (BLS).
- June 2001 revision: Rather than creating a new Division, merge smaller language Sections into pre-existing Divisions; continue to emphasize rebuilding the [“Language 1”] Section without staff perceived as central to its problems.
- The June 2001 proposal stated integration would make some support functions redundant, including the current [“Language 1”] Section TCA position, “of which up to three would be redeployed.”
- The June proposal recommended immediate abolition of Applicant’s (Mr. “F”) TCA position following integration into the new “Languages 1 & 2” Division.

### Implementation and personnel actions (mid-2001 to 2004)
- The Deputy Managing Director approved the June 2001 proposal in July; the merger creating the “Languages 1 & 2” Division took effect August 1, 2001.
- Implementation delayed until October 2001 due to concerns about Mr. “F”’s health:
  - Between May and the end of September 2001 (and in 1995-1996), the Counseling and Consultation Service provided counseling to Mr. “F” for work-related stress. The counselor reported Mr. “F” felt job insecurity, perceived work being taken away, and “... not really felt support in that office for a long time.” Mr. “F” also cited “...concerns about the differences, both personal and religious differences in the office and how he thought the kind of office environment had been a very difficult one.” In mid-summer his emotional health declined and he was placed on sick leave for a month.
- October 18, 2001: Division Chief informed the TGS Advisor that he was ready to proceed with abolition of Applicant’s position and another support position. Recommendations included redefining one Translation Editorial Officer position as a TP/PA at A7 and retaining an incumbent TPA developing DTP skills.
- October 22–23, 2001: TGS Advisor and Assistant Director approved forwarding recommendations to HRD Director and TGS Director; abolished positions were to be redeployed elsewhere in Language Services.
- Three positions in the “Languages 1 & 2” Division were abolished in October 2001. Post-abolition staffing within the “Language 1” Section:
  - Two support positions remained: the new Text Processing/Proofreading Assistant (“TP/PA”) and a Text Processing Assistant (“TPA”).
  - The incumbent TPA was appointed to the TP/PA job following a February 2002 vacancy announcement that specified a qualified internal candidate; the vacated TPA position was filled externally.
  - The TCA duties performed by Mr. “F” were reallocated to two TCAs previously serving the “Language 2” sector.
- October 25, 2001: Applicant received official notice of abolition effective November 1, 2001; meeting with Division Chief and TGS Advisor occurred October 24, 2001.
  - Notice explanation: “In its ongoing effort to adjust available resources to changing requirements, Language Services has reviewed its current and future needs in the area of word processing, desk top publishing, proofreading, and translation editorial and coordination services.”
  - Referral to Human Resources Officer for “reassignment assistance, training, career counseling, outplacement assistance and other benefits the Fund can offer you in this connection.”
- Administrative arrangements confirmed by letter of January 16, 2002, included:
  - Six-month reassignment period of November 1, 2001 - April 30, 2002 (pursuant to GAO No. 16).
  - If reassignment not identified, an extended notice period of 120 days, followed by the maximum 22.5 months of separation leave at full pay based on Applicant’s years of service.
  - Applicant received these benefits and was separated from service effective July 31, 2004.

### Administrative review, investigations, and outcomes
- February 21, 2002: Applicant, through counsel and pursuant to GAO No. 31, Rev. 3 (November 1, 1995), Section 6.02, sought administrative review by his department head (Director of TGS); the request was later transferred to the Human Resources Director.
- Applicant alleged the abolition was the culmination of a history of religious discrimination and requested review of the abolition decision and surrounding issues of discrimination, retaliation and harassment.
- April 11, 2002: Human Resources Department confirmed a two-track review:
  - “Technical” aspects of abolition to be considered internally by HRD.
  - Charges of discrimination, retaliation and harassment to be investigated by an outside consultant; terms of reference attached to the HRD letter.
- Applicant cooperated with the consultant. Applicant later contended he was “ lull[ed] ... into an inactive pursuit of his Grievance,” that the consultant sought regular employment with the Fund, and that the consultant’s Report was not provided to him. The consultant’s Report was subsequently the subject of document production requests in the Grievance Committee and Administrative Tribunal.
- The Tribunal concluded Applicant sustained no prejudice from the consultant’s appointment or related arrangements after considering the circumstances and the consultant’s Report.
- August 8, 2002: Director of Human Resources rendered the decision exhausting administrative review prior to Grievance Committee proceedings; the HRD Director issued a detailed opinion relying on findings of both the internal investigation and the consultant’s investigation and concluded that TGS acted properly.

*Source: Administrative record and Tribunal materials relating to reorganization and abolition decisions involving the Bureau of Language Services and the [“Language 1”] Section*

### 6.04 Appeal to the Director of Administration. If dissatisfied with the response to a

### 6.04 Appeal to the Director of Administration. If dissatisfied with the response to a

### Appeal procedure and timeframe
- If dissatisfied with the response to a request under either Section 6.02 or 6.03, or if no response is received within 15 days after submission of such a request, then the staff member may request in writing a review by the Director of Administration.
- The written request must be submitted within 30 days after the response from the division chief or Department Head, as applicable, has been received or the deadline for a response has passed, whichever is earlier.

### Case background and procedural history
- Applicant filed his Grievance with the Fund’s Grievance Committee on October 3, 2002.
- The Committee issued its Recommendation and Report on July 31, 2003, recommending denial of the Grievance on the basis that Mr. “F” had “… been unable to show a nexus between the alleged religious intolerance displayed by [former colleagues] and the TGS reorganization, which resulted in the abolition of his position,” and “… has been unable to prove that the decision to abolish his position was arbitrary, capricious or discriminatory, or procedurally defective in a manner which substantially affected the outcome.”
- By letter of August 26, 2003, the Deputy Managing Director notified Applicant that Fund management had accepted the Committee’s recommendation.
- On November 20, 2003, Mr. “F” filed his Application with the Administrative Tribunal.

### Applicant’s principal contentions (summary)
- The decision to abolish Applicant’s position and terminate his employment was motivated by discrimination on religious grounds and was the culmination of a history of discrimination.
- Applicant experienced a hostile and discriminatory work environment in which co-workers of the majority religion resented Applicant’s authority; religious symbols were placed in the workplace as a deliberate provocation while his own religious expression was not tolerated.
- Applicant repeatedly brought religious prejudice and harassment to management’s attention but management failed to investigate.
- Applicant suffered mentally and physically due to management’s conduct.
- Applicant’s functions were not actually abolished but were redistributed to two positions at levels A6 and A7; the redundancy did not arise from any skills mismatch, abolition of functions, or budget reduction.
- Applicant’s position embraced functions beyond that of a TCA; there was no material difference between the old and new positions. The TP/PA and TPA positions required skills that Applicant used as TCA and back-up TPA; he was more than qualified to perform either.
- It was not credible that the remaining TCAs could perform Applicant’s former duties without knowledge of “Language 1.”
- Applicant’s performance was always fully satisfactory.
- Respondent failed to give Applicant appropriate advance notice of the abolition of his position.
- No genuine efforts were made to find an alternative position for Applicant; Applicant was not offered, or given an opportunity to compete for, either the TP/PA or TPA position.
- Applicant seeks rescission of the abolition decision or a “directed settlement protecting his economic security on the basis of a pension equal to what he would have had at normal retirement age” and such other relief as may be adjudged.

### Respondent’s principal contentions (summary)
- Decisions to abolish positions within Language Services were taken for legitimate, business-related reasons to consolidate functions and redeploy positions where increased staffing was needed.
- Applicant’s Section traditionally had an insufficient amount of work to justify a full-time TCA position.
- Applicant’s TCA duties, mainly administrative and not requiring language skills other than English, were genuinely reassigned to two other TCAs who had come from the “Language 2” side of the merged “Languages 1 & 2” Division.
- There were material differences between the abolished TCA position and the new TP/PA position; the TP/PA position does not involve the administrative tasks of the TCA but requires proofreading and editing responsibilities of the abolished TEO position, along with desk top publishing skills as a primary responsibility.
- Applicant lacked the qualifications required to perform the functions of the new TP/PA position.
- Applicant has failed to show that religious discrimination adversely affected his career or played any role in the decision to abolish his position.
- The abolition decisions did not disproportionately impact a single religious group; no witness corroborated Applicant’s belief that he was the target of religious discrimination.
- Isolated derogatory allusions to Applicant’s religion over more than twenty years were dealt with appropriately by supervisors and did not affect Applicant’s career.
- Applicant contributed to problems with colleagues; these were work-related.
- The abolition process was not procedurally flawed and was consistent with applicable rules.
- The Fund satisfied its obligations under GAO No. 16 to assist Applicant in finding alternative employment, but Applicant did not seriously pursue assistance offered and passed up opportunity to compete for the TP/PA position; Applicant was not qualified for the TPA position filled by an external candidate.

### Standard of review for abolition of position
- Abolition of a post is an individual managerial decision subject to review only for abuse of that discretion.
- The Tribunal follows precedent that discretionary decisions can be overturned only if shown to be “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.”
- Factors subsumed in the standard of review may invite differing levels of scrutiny; discrimination allegations, especially on religious grounds, may receive particular scrutiny.

### GAO No. 16 requirements governing abolition of position (quoted provisions)
- GAO No. 16, Rev. 5 (July 10, 1990), Section 13 provides:
  - “Section 13 Reduction in Strength, Abolition of Position or Change in Job Requirements
  13.01 General. A staff member may be separated in the event of the abolition of his position, when the position is redesigned to meet institutional needs and the incumbent is no longer qualified to meet its requirements or when a reduction in strength is required. In the event of a reduction of staff positions in the Fund, efforts shall be made to reassign staff members consistent with their qualifications and the requirements of the Fund. In reassigning staff members, consideration shall be given to their performance record, seniority, and length of service. In the event that a staff member’s position is abolished, or the position is redesigned to meet institutional needs and he is no longer qualified to meet its requirements, efforts shall be made over a period of not less than six months to reassign him to another position consistent with his qualifications and the requirements of the Fund. During this period, the Fund shall also provide the staff member with appropriate training if such training will facilitate his placement in an alternate position. If all efforts to identify a reassignment fail, his appointment shall be terminated.
  13.02 Notice. A staff member separated under the provisions of Section 13.01 shall be entitled to 60 calendar days’ notice. However, the Director of Administration may extend this period up to 120 calendar days in order to allow the staff member a reasonable time, before his separation, to settle his affairs. The Director of Administration may also excuse a staff member from reporting for duty during part or all of the period of notice and place the staff member on administrative leave with pay during this period.
  13.03 Resettlement Benefits. A staff member who is separated under the provisions of Section 13.01 shall be eligible for resettlement benefits. However, the minimum period of service required as specified in General Administrative Order No. 8 (Relocation Benefits and Separation Grant) shall not apply in such a case.
  13.04 Payment from Separation Benefits Fund. A staff member separated under the provisions of Section 13.01 shall be granted a separation payment from the Separation Benefits Fund in accordance with the provisions of Section 4.06.”

- Therefore the essential requirements for a lawful abolition of position are that the position has been abolished or redesigned to meet institutional needs and the incumbent is no longer qualified to meet its requirements.

### Legal test and precedent on “abolished or redesigned to meet institutional needs”
- International administrative jurisprudence applies a test focusing on whether there are material differences between the old position and the new.
- Decisions cited indicate differences must be “ones of substance” and show a “clear material difference” between the new position and the position made redundant.
- The Tribunal examines whether the substantive work and responsibilities of the original post differ materially from the new position(s).

### Factual analysis of Applicant’s and TP/PA duties
- Applicant’s Annual Performance Review for 1/1/2000 to 12/31/2000 indicates TCA responsibilities included:
  - receipt and distribution of job requests to Section staff;
  - monitoring and follow up with outside contractors;
  - dispatch of finished jobs after relevant entries in the database;
  - producing statistical reports and making available word count statistics for budgetary purposes;
  - collecting and submitting attendance information on a daily basis;
  - collecting time reports from Section staff, verifying them and submitting them to the Section Chief;
  - ensuring availability of adequate supplies for the Section;
  - providing transcription support for important documents such as the World Economic Outlook (“WEO”) as part of text processing duties.
- There is factual dispute about the extent of Applicant’s back-up text processing responsibilities; some supervisors reported a significant portion of Applicant’s work involved text processing duties, and a senior economist praised Applicant’s desk top publishing work in in-house production of two large publications.
- The TP/PA position created after restructuring required:
  - considerable desk top publishing skills, particularly for in-house production of the “Language 1” version of the WEO;
  - typing, transcribing, and formatting a wide variety of technical and specialized “Language 1” documents and publications;
  - performing the full range of desk top publishing functions;
  - proofreading and editing of final translated documents and publications against drafts or the original in the source language to verify conformity to “Language 1” spelling, syntax and grammatical practice, and that translations are complete and consistent in language and format.

*Source: International Monetary Fund Administrative Tribunal (judgment excerpt).*

### 56.      Performance of these functions required the incumbent to have “Language 1” as a

### j2005-1 - 56. Performance of these functions required the incumbent to have “Language 1” as a

### Job requirements and functional distinctions (paras. 56–59)
- TP/PA position required:
  - “Language 1” as a mother tongue along with an excellent command of English and, preferably some other languages (para. 56).
  - Proficiency in Quark Xpress, familiarity with the Fund’s style and form for producing documents, ability to keep abreast of technical innovations in office automation, and state-of-the-art skills in desk top publishing (para. 56).
  - Ability to train and supervise Text Processing Assistants (“TPAs”) (para. 56).
- TPA position (post-restructuring, Vacancy Announcement 2002) required:
  - Work under supervision of the TP/PA and guidance of the Section Chief; prepare “Language 1” documents in final form (including tabular material, equations, and charts) which did not require formal proofreading, in accordance with the Fund’s and the Section’s style and formatting standards (para. 57).
  - Full proficiency in a wide range of desk top publishing functions; familiarity with state of the art desk top publishing and the Fund’s style and practice; check accuracy of language, grammar, spelling, and consistency in text and tables (para. 57).
- Division Chief’s descriptions:
  - TCA: essentially a data management job with a high communications content; central point for receipt, distribution, and electronic dispatch of jobs (para. 58).
  - TPA: purely text processing job requiring thorough conversance with latest technologies and desk top publishing programs (para. 58).
  - TP/PA: involved desk top publishing plus an additional language element of proofreading in the target language, “Language 1”; incumbent expected to have very good command of the target language and a good grasp of grammar, spelling, punctuation and usage to the extent of correcting translation errors (para. 58).
- Tribunal conclusion:
  - TP/PA responsibilities were materially different from, and more demanding than, those performed by Applicant as TCA, particularly requiring an excellent aptitude in the use of English not possessed by Applicant (para. 59).

### Legitimacy of restructuring and comparative tribunal precedent (paras. 60–62)
- Precedent and standards cited:
  - ILOAT Judgment No. 2156 (2002) emphasized that job abolitions arising from restructuring must be justified by real needs and not be immediately followed by creation of equivalent posts (para. 60).
  - WBAT Decision No. 294 (Njovens v. IBRD, 2003) considered whether reorganization was genuine managerial discretion or a pretext to terminate an applicant; upheld reorganization where memorandum explained reorganization in detail (paras. 60, quoting decision).
- Fund’s stated reasons for structural changes:
  - Redeployment of positions to areas of Language Services with growing need for increased staffing (para. 61).
  - Alignment of positions within newly formed “Languages 1 & 2” Division parallel to other Language Divisions (para. 61).
  - Economies of scale by reducing number of TCAs after merger of smaller Language Sections into pre-existing Divisions (para. 61).
  - Insufficient TCA responsibilities in “Language 1” Section to occupy a TCA full-time (para. 61).
  - January 2001 restructuring plan anticipated reduction of TCA positions noting “economies of scale would be achieved at the level of the TCA” and was designed to be budget neutral with abolished positions redeployed to areas facing increased workload (para. 61).
- Tribunal assessment:
  - Reasons advanced by the Fund are credible and sufficient to justify abolition of Applicant’s position (para. 62).

### Qualification assessment and evidence (paras. 63–70)
- Test for lawful abolition under GAO No. 16, Section 13 includes that Applicant is not qualified to meet requirements of redesigned position (para. 63).
- Testimony and management view:
  - TGS Assistant Director: in the merged Division the TCA acted as “a sort of traffic cop for the translation flow,” requiring good oral and written communication in English; knowledge of “Language 1” not crucial but advantageous; Applicant lacked required communication skills for large and complex Division (para. 64).
  - TGS Advisor in charge of Language Services: decision to abolish TCA in “Language 1” and retain other TCAs due to complexity of combined Division; Applicant had difficulty communicating with requesters in English (para. 65).
  - Reassignment: Applicant’s principal TCA duties were reassigned to other existing staff including two TCAs from the Division (para. 65).
- TP/PA selection and testing:
  - TP/PA seen as intermediate position requiring desk top publishing, composition, and strong proofreading skills (para. 66).
  - TGS Assistant Director conducted a test using a previous version of the World Economic Outlook to judge skills; Applicant produced one page whereas the retained staff member produced a longer though imperfect output, indicating capability to handle the work (para. 66).
  - Division Chief and TGS Advisor observed significant progress by the retained staff member in desk top publishing and favored his retention (para. 66).
- Applicant’s contentions:
  - Argues there was no real abolition but marginal redefinition; claims prior production of major “Language 1” desk top publications and received congratulatory memoranda for first desk top publication of the WEO (para. 67).
  - Challenges credibility of the WEO test organizer and alleges bias by the acting Section Chief against Applicant for religious reasons (para. 67).
- Fund’s position:
  - Main duties of a TCA were administrative and did not require language skills other than English; no evidence other than English was essential (para. 68).
  - Fund maintains Applicant lacked skills and experience for TP/PA duties: lacked “an excellent command of English,” proficiency “in the use of Quark Xpress,” and ability to prepare documents in final form “in accordance with IMF norms and style and format guidelines for publications” (para. 69).
  - Fund relied on written appraisal of the computer systems officer and testimony of an earlier supervisor that Applicant’s 1991 WEO production did not require current sophisticated software/hardware now required for desk top publishing (para. 69).
- Tribunal finding on qualification:
  - Tribunal concludes Fund’s position that Applicant was not qualified for the redesigned position is persuasive, noting managerial discretion in assessing qualifications and abilities (para. 70, with quoted Commentary on the Statute).

### Improper motivation, redundancy principles, and procedural safeguards (paras. 71–72 and cited decisions)
- Cautions from tribunal jurisprudence:
  - Jassal v. IBRD, WBAT Decision No. 100 (1991): redundancy must not be used to render a previous occupant unable to discharge responsibilities; unsatisfactory performance alone cannot furnish basis for redundancy (para. 71, quoted).
  - Harou v. IBRD, WBAT Decision No. 273 (2002): redundancy provisions may not be used to deal with unsatisfactory performance (para. 72, quoted).
  - Marchesini v. IBRD, WBAT Decision No. 260 (2002): redundancy should be a “last option” and is not a substitute for managing performance (para. 72, quoted).
  - Taborga v. IBRD, WBAT Decision No. 297 (2003): redundancy provisions must not be used to deal with unsatisfactory performance, though performance or skill may be taken into account in selection (para. 72, quoted).
  - del Campo v. IBRD, WBAT Decision No. 292 (2003): strict observance of fair and transparent procedures required; managerial discretion must be exercised for legitimate and genuine managerial considerations; performance or skill may be taken into account in selecting who is retained, but unsatisfactory performance alone cannot justify redundancy (para. 72, extensive quoted passages).
  - Njovens v. IBRD, WBAT Decision No. 294 (2003): where performance concerns exist and redundancy is sudden, higher scrutiny is required; failures in due process and absence of advance warning can inflict compensable damage (para. 72, quoted).
- Procedural and substantive principles emphasized:
  - Redundancy decisions must be justified by genuine organizational needs and implemented with fairness and transparency (para. 72 and cited cases).
  - An individual's relative performance and skills may be considered when choosing who to retain, but redundancy cannot be a subterfuge for dismissal for poor performance without due process (para. 72 and cited cases).
  - The Fund's approach in this case aligns with considerations that skills were evaluated to determine whether Applicant could be kept in the new structure rather than to justify redundancy solely on performance grounds (para. 72, citing Denning v. IBRD, WBAT Decision No. 168 (1997)).

*Tribunal decision and Fund positions summarized from IMF adjudicatory record.*

### 73.      Applicant has alleged an improper motive on the part of the Fund management in

### 73.      Applicant has alleged an improper motive on the part of the Fund management in

### Improper motive and abuse of discretion
- International administrative tribunals require a causal link between an alleged irregular motive and the decision being attacked.
- An organization abuses discretion when it exercises discretionary power for a purpose other than that for which the power was granted.
- In abolition/redundancy contexts, tribunals have considered abolition improperly motivated if the aim was to terminate a particular person for misconduct or unsatisfactory performance.

### Abolition of posts, dual motives, and Tribunal findings
- Draft restructuring language: “[ t]he proposed restructuring of the language sections would offer a unique opportunity to solve some long-standing personnel problems in the [“Language 1”] Section.”
- The draft also stated: “[i]t is unlikely that any of the current incumbents in the [“Language 1”] Section would have the range of skills required for such a ‘combined’ TPA/DTP/proofreader position, and a new person would therefore need to be hired.”
- June 21, 2001 proposal excerpt:
  - “The purpose of this note is to inform you of the efforts under way to permanently resolve the long-standing problems of the [“Language 1”] Section of the Bureau of Language Services, and to seek your approval for a plan of action involving this Section and other small language service units as part of the restructuring of TGS. ...
  - .... Against this background, we believe that the Section needs to be rebuilt without those staff members who have been at the heart of its continuous problems for many years under different supervisors.”
- Tribunal considered dual-motive precedent (Mr. J. C., ILOAT Judgment No. 139 (1969)):
  - “The suppression of a post is not tainted by such abuse when it is designed to have a lasting effect in the interest of the service and at the same time, terminates the appointment of a staff member whose services were unsatisfactory. ... If, however, the result of a suppression of post is to effect a permanent saving, it is not irregular simply because it also has the effect of removing an official. …”
  - The ILOAT finding observed that suppression based on both service interests and issues related to the person can be justified where the service-related ground is sufficient.
- Tribunal’s view: Fund management repeatedly stated efficiency of the TGS Department as a motive; evidence also shows management saw restructuring as a means to overcome personnel conflicts in the “Language 1” Section. The additional aim of resolving personnel conflicts does not deprive the restructuring of managerial legitimacy.

### Allegations of religious discrimination regarding abolition of position
- Applicant’s central contention: abolition of his position as TCA in the “Language 1” Section resulted from religious discrimination rather than institutional need.
- Fund’s response: Applicant failed to show any nexus between alleged religious prejudice among colleagues and the decision to abolish his position.
- Tribunal finding on motivation to abolish the post:
  - “There is no evidence that those who took the decision to abolish Mr. ‘F’’s position were so motivated.” (Decidedly negative on discriminatory motive for abolition.)
- The Tribunal reserved judgment on whether Applicant was subjected to a pattern of words, behaviors, action, or inaction constituting discriminatory harassment; that question to be addressed subsequently.

### Evidence of alleged religious hostility and management responses
- Applicant testified to incidents he perceived as religious hostility:
  - Two co-workers allegedly told him “if he did not convert to their religion they would make his life in the Section ‘miserable.’”
  - Allegations that co-workers refused to take direction from Applicant.
- Allegations concerning display of “religious symbols”:
  - Applicant alleges he was told to remove a verse from a holy text and a religious symbol from his office key ring.
  - Applicant alleges majority-group staff displayed posters of their holy sites with the purpose of provoking him.
  - Senior economist testified the posters were intended to reflect the region represented by the Section, later adding posters to represent other religious groups, and stated he did not observe “any religious discrimination” against Mr. “F”.
- Applicant’s asserted link between hostility and abolition: “... they create problems for me as something usual to keep question mark on me about how they get the front office or Administration to fire me.”
- Applicant reported religious hostility to supervisors, the Ombudsperson, and the counselor at the Health Services Department over the years.
- Division Chief testimony: in the early 1990’s Mr. “F” reported feeling the object of religious intolerance.
- Senior economist testimony: intervened when two staff members made derogatory remarks about Mr. “F”; distributed copies of the Fund’s Code of Conduct to the Section.

### Policies, definitions, and standards on discrimination, harassment, and conduct
- Discrimination is prohibited by the Fund’s internal law; Rule N-2 states:
  - “N-2. Subject to Rule N-1 above, the employment, classification, promotion and assignment of persons on the staff of the Fund shall be made without discriminating against any person because of sex, race, creed, or nationality. Adopted as N-1 September 25, 1946, amended June 22, 1979,”
- Discrimination Policy (July 3, 2003) definition excerpts:
  - “In the Fund, discrimination should be understood to refer to differences in the treatment of individuals or groups of employees where the differentiation is not based on the Fund’s institutional needs and:
    • is made on the basis of personal characteristics such as age, creed, ethnicity, gender, nationality, race, or sexual orientation;
    • is unrelated to an employee’s work-related capabilities, qualifications and experience_this may include factors such as disabilities or medical conditions that do not prevent the employee from performing her or his duties;
    • is irrelevant to the application of Fund policies; and
    • has an adverse impact on the individual’s employment, successful job performance, career opportunities, compensation, or other terms and conditions of employment.
  Discrimination can occur in various ways, including but not limited to the following:
  ...
  • creating or allowing a biased work environment that interferes with an individual’s work performance or otherwise adversely affects employment or career opportunities; ... Discrimination can be manifested in different ways, for example, by a single decision that adversely affects an individual or through a pattern of words, behaviors, action, or inaction (such as the failure to take appropriate action in response to a complaint of discrimination), the cumulative effect of which is to deprive the individual of fair and impartial treatment.”
- Policy on Harassment definitions:
  - “Harassment is any behavior, verbal or physical, that unreasonably interferes with work or creates an intimidating, hostile, or offensive work environment.” (Policy on Harassment, January 1995; Staff Bulletin 99/15 Harassment – Policy and Guidance to Staff, June 18, 1999.)
  - Intimidation examples: “degrading public tirades by a supervisor or colleague; deliberate insults related to a person’s personal or professional competence; threatening or insulting comments, whether oral or written—including by e-mail; deliberate desecration of religious and/or national symbols; and malicious and unsubstantiated complaints of misconduct, including harassment, against other employees.”
- Discrimination Policy (p. 5) linkage: “Harassment, unfair treatment, abuse of power, and favoritism are also separate from discrimination, but they can all become discriminatory if they develop into a pattern and systematically address certain individuals or groups of individuals and have an impact on employees’ performance, development, career opportunities, and career progress.”
- Code of Conduct (1998) excerpts:
  - “Courtesy and respect
    14. You should treat your colleagues, whether supervisors, peers, or subordinates, with courtesy and respect, without harassment, or physical or verbal abuse. You should at all times avoid behavior at the workplace that, although not rising to the level of harassment or abuse, may nonetheless create an atmosphere of hostility or intimidation.
    Diversity
    15. In view of the international character of the Fund and the value that the Fund attaches to diversity, you are expected to act with tolerance, sensitivity, respect, and impartiality toward other persons’ cultures and backgrounds.”
- Policy on Harassment guidance:
  - “9. In the multicultural environment of the Fund, there is clearly room for one person to be offended by actions that might not be offensive to another person. Therefore, it is important for all staff members to exercise tolerance, sensitivity, and respect in their interactions with others. ... if a specific action by one person is reasonably perceived as offensive or intimidating by another, that action might be seen as harassment, whether intended or not.”
- Discrimination Policy advisory (July 3, 2003, p. 7):
  - “It is important that employees have reasonable grounds supported by documents and other evidence, which may include witnesses, before making a complaint of discrimination. Employees should not use discrimination allegations to address other concerns or disagreements. The Fund will protect an employee against retaliation for raising a discrimination case, but if an inquiry demonstrates that the accusations are frivolous or malicious, this may be grounds for disciplinary measures.”

*Source: IMF Administrative Tribunal judgment (paras. 73–96).*

### 97.      The relevant policies also speak to the responsibilities of supervisors. In matters of

### j2005-1 - 97.      The relevant policies also speak to the responsibilities of supervisors. In matters of

### Supervisory responsibilities and harassment policy
- The Fund’s policy: “The Fund strives for a harassment-free environment, and supervisors are expected to support this objective, including stopping harassment in the areas under their supervision.” (Policy on Harassment, para. 18.)
- The Fund’s Code of Conduct (Conflict resolution, para. 19) specifies managers’ obligations:
  - “Managers have a responsibility to make themselves available to staff members who may wish to raise concerns in confidence and to deal with such situations in an impartial and sensitive manner.”
  - “Managers should endeavor to create an atmosphere in which staff feel free to use, without fear of reprisal, the existing institutional channels for conflict resolution ... and to express concerns about situations which are, or have the potential to be, conflictive.”

### Findings on conduct, supervisory response, and hostile work environment
- Evidence that conduct in the “Language 1” Section did not meet Code of Conduct standards and that supervisors did not take effective corrective measures.
- Specific documented instances regarding Mr. “F”:
  - September 1995 mid-year review: conduct marked by an “adversarial attitude, aggressive tone, and personal attacks [that] were not inconsistent with his record.”
  - Follow-up memorandum: Mr. “F” “... shared responsibility for the atmosphere of animosity ... and that maintaining such an attitude would rekindle previous tensions.”
  - November 2000: TGS Advisor advised Mr. “F”: “... I would urge you to control your tendency to easily get worked up and show anger in your conversations with [colleagues].”
  - Warning to Applicant: “... such an attitude, including raising your voice and becoming verbally aggressive ... is not acceptable conduct in the Fund, and any such conduct in the future would result in disciplinary action against you.”
- Tribunal conclusions:
  - Decision to abolish Mr. “F”’s position was not motivated by religious discrimination of the decision makers.
  - The Section “suffered from an atmosphere of religious bigotry and malign personal relations among certain of its members,” and Mr. “F” in particular suffered accordingly.
  - No evidence that Fund supervisors took effective action to remedy the unacceptable situation; a senior economist made some effort to rebuke religious hostility but hostility persisted after his departure.
  - There is ground to conclude Applicant suffered from harassment as defined in the Fund’s Policy on Harassment, although Applicant may have contributed to the malign atmosphere by his own behavior.
  - Evidence indicates Mr. “F” felt, and had reason to feel, he was the object of hostility because his religion differed from that of certain colleagues.
  - Supervisors did not “move vigorously, or indeed moved at all, to investigate Mr. ‘F’’s complaints of religious hostility or to discipline staff members found to be the source of such hostility.”
  - Harassment “adversely affected the work performance and perhaps health of Mr. ‘F’.”

### Procedural fairness for abolition of a position — notice requirements
- GAO No. 16, Section 13.02 (quoted):
  - Staff member separated under Section 13.01 “shall be entitled to 60 calendar days’ notice. However, the Director of Administration may extend this period up to 120 calendar days ... The Director of Administration may also excuse a staff member from reporting for duty during part or all of the period of notice and place the staff member on administrative leave with pay during this period.”
- Tribunal analysis:
  - Section 13.02 addresses the period of notice once separation stage is reached; it does not expressly address entitlement to a specific notice period in advance of abolition.
  - Applicant’s case facts: informed of abolition effective November 1, 2001 during meeting on October 24, 2001, with written confirmation the next day.
  - Fund’s position: the 60-day (or extended 120-day) notice period begins to run after the six-month reassignment period has expired; in Mr. “F”’s case he was granted the maximum extended notice period of 120 days; Fund delayed informing him of the abolition decision for a few months while he recovered from diagnosed work-related stress disorder.
- Jurisprudence cited on advance warning and due process:
  - Garcia-Mujica v. IBRD, WBAT Decision No. 192 (1998): adequate advance information is required so a staff member can make views known before a final decision; absence of timely information can deprive staff of opportunity to defend themselves.
  - Njovens v. IBRD, WBAT Decision No. 294 (2003): fairness requires adequate information “with ‘all possible anticipation’” especially when redundancy likelihood was known substantially in advance; absence of advance warning can inflict compensable damage.
- Tribunal conclusion on notice:
  - Although the Fund’s interpretation of Section 13.02 is not unreasonable, fair and transparent procedures require reasonable notice of the prospect of abolition so the staff member can contest the decision.
  - The summary notice given to Mr. “F” was “hardly adequate”; on this ground the Tribunal concludes the Fund did not follow fair and reasonable procedures.

### Reassignment efforts and obligations under GAO No. 16
- GAO No. 16, Section 13.01 (quoted in pertinent part):
  - “In the event that a staff member’s position is abolished ... efforts shall be made over a period of not less than six months to reassign him to another position consistent with his qualifications and the requirements of the Fund. During this period, the Fund shall also provide the staff member with appropriate training if such training will facilitate his placement in an alternate position. If all efforts to identify a reassignment fail, his appointment shall be terminated.”
- Arguments and factual points:
  - Applicant alleges insufficient efforts were made to find an alternative position.
  - Respondent contends Applicant did not seriously pursue positions, testing, training, or outplacement assistance; asserts the staff member has primary responsibility to seek opportunities and take prerequisite tests.
  - Applicant’s account: Human Resources Officer met with Applicant and his wife only twice during the six-month period; informed of separation process and placement agency choices initially; only once during six months was Applicant informed of an opening requiring French, which Applicant declined.
  - Human Resources Officer’s testimony: met three or four times with Applicant and his wife, spoke by telephone several more times, intervened on Applicant’s behalf regarding an IMF Institute opportunity, drew attention to a vacant data management assistant position in TGS, helped obtain certification of “Language 1” typing skills for an outside opportunity.
  - Fund’s assertions about Applicant’s efforts: Applicant made little effort during the six-month period; did not take tests that would qualify him for vacancies in the secretarial career stream; did not pursue training opportunities; failed to use Fund-funded outplacement service; dropped out of an English skills course that Fund would have reimbursed.
  - Fund position: not obliged to invite Applicant to apply for positions for which he was clearly unqualified; vacancies are posted on the internal website and staff have prime responsibility to review and express interest.
  - Applicant expressed optimism about opening a business and did not communicate that he would have applied for lower level positions (TP/PA or TPA) if invited.
- Relevant jurisprudence and principles:
  - Gracia de Muniz, ILOAT Decision No. 269 (1976): general principle that an organization may not terminate appointment of a staff member whose post has been abolished without first taking suitable steps to find alternative employment.
  - Arellano (No. 2) v. IBRD, WBAT Decision No. 161 (1997): obligation is to “try genuinely to find such staff members alternative positions for which they are qualified”; duty to make an effort, not to ensure success.
  - Marchesini v. IBRD, WBAT Decision No. 260 (2002): Bank actively assisted applicant (Job Search Center, Job Posting System, Human Resources Officer services); unsuccessful search not necessarily evidence of inadequate effort.
  - Mr. S. S., ILOAT Decision No. 2294 (2004): cautions against arbitrary decisions not to offer vacant posts to redundant staff without appropriate enquiries; Secretary General required to undertake appropriate enquiries and explain why official is unsuitable if posts exist.
- Core legal standard articulated:
  - Fund must make genuine efforts, over not less than six months, to reassign a staff member whose position is abolished to another position consistent with the staff member’s qualifications and Fund requirements; efforts include providing appropriate training if it would facilitate placement.
  - The obligation is one of active, good faith assistance and appropriate enquiries, not a guaranty of successful reassignment.

*IMF Administrative Tribunal judgment summarized by the Tribunal.*

### 117.      The jurisprudence of administrative tribunals accordingly indicates that international

### j2005-1 - 117.      The jurisprudence of administrative tribunals accordingly indicates that international

### Findings on reassignment and responsibility
- International organizations must make “genuine, serious, and pro-active efforts” in reassignment of employees whose positions have been abolished.
- The Fund’s efforts to identify another position for Mr. “F” may not have been “energetic or pro-active.”
- Mr. “F” appears to have shown little initiative in finding another position in the Fund (e.g., he did not apply to fill the TPA position in the “Language 1” Section after the TP/PA position was filled).
- The Tribunal concludes there is fault to be borne by both parties for failure to energetically pursue reassignment possibilities, but does not award compensation on the reassignment count.

### Legal framework and remedial authority
- Article XIV, Section 1 of the Statute provides that if the Tribunal finds an individual decision well-founded, it “shall prescribe the rescission of such decision and all other measures, whether involving the payment of money or otherwise, required to correct the effects of that decision.”
- The Tribunal may reject an application challenging the legality of an individual decision while nonetheless finding the Fund liable in part for procedural irregularity, and award monetary relief (citing IMFAT Judgment No. 1997-1, para. 44).
- Jurisprudence of other international administrative tribunals supports awarding compensation for process failures (e.g., WBAT Decision No. 321 (2004), para. 76; WBAT Decision No. 139 (1994), para. 57).

### Findings on misconduct, notice, and entitlement to compensation
- The Tribunal found that Mr. “F” was the object of expression of religious intolerance and was subjected to a hostile work environment.
- The Tribunal concluded that:
  - The restructuring decision abolishing the “Language 1” Section position was not improper and is sustained.
  - Mr. “F” is entitled to financial compensation on two grounds:
    - The Fund did not take effective measures to deal with religious intolerance and harassment directed at Mr. “F”.
    - The Fund failed to give him reasonable notice of abolition of his position.

### Compensation and costs awarded
- The Tribunal awards Mr. “F” compensation as follows:
  - Mr. “F” is awarded the sum of $100,000.
- Costs:
  - Pursuant to Article XIV, Section 4 of the Statute, the Tribunal may order that reasonable costs incurred by the applicant, 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 notes precedent where only a proportion of claimed costs was awarded given the limited degree of success (IMFAT Order No. 1998-1).
  - Representation in administrative review proceedings antecedent to Tribunal review falls within the Tribunal’s remedial authority (IMFAT Order No. 1997-1); accordingly, Mr. “F”’s request for costs for representation during the investigation and administrative review will be considered following further submissions.
  - The Fund shall pay Applicant the reasonable costs of his legal representation, in an amount to be assessed by the Tribunal following the further submissions of the parties.

### Decision (Operative paragraphs)
- The Administrative Tribunal of the International Monetary Fund unanimously decides:
  1. The abolition of Mr. “F”’s post in the reorganization of the Fund’s Department of Technology and General Services was an act of managerial discretion; its conception and implementation do not provide cause for reconsideration by the Tribunal on grounds of abuse of right or otherwise.
  2. Mr. “F” is entitled to financial compensation for the Fund’s failures:
     - a) to take effective measures in response to religious intolerance and workplace harassment directed at Mr. “F”; and
     - b) to give him reasonable notice of the abolition of his post.
  3. Consequently, Mr. “F” is awarded the sum of $100,000.
  4. The Fund shall pay Applicant the reasonable costs of his legal representation, in an amount to be assessed by the Tribunal following the further submissions of the parties.

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_Source: https://www.imf.org/-/media/files/imfat/j2005-1.pdf_