## j2006-3 — Introduction

## Source details

**Canonical URL:** [j2006-3 — Introduction](https://www.imf.org/-/media/files/imfat/j2006-3.pdf)

## Other formats

- [Markdown version](/-/media/files/imfat/j2006-3.pdf.md)
- [Structured JSON version](/-/media/files/imfat/j2006-3.pdf.json)

---

### Tribunal proceedings and procedural history
- 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 on February 13, 14 and 15, 2006 and adopted its Judgment on June 7, 2006.
- Applicant filed her Application on May 26, 2004. The Application was transmitted to Respondent on June 1, 2004. Pursuant to Rule XIV, para. 4, the Registrar issued a summary of the Application within the Fund on June 4, 2004.
- Respondent filed its Answer on July 16, 2004. Applicant filed her Reply on August 18, 2004. Respondent’s Rejoinder was filed on September 20, 2004.
- On January 25, 2006 Applicant submitted a statement of legal costs requested in the Application; the President directed transmission to the Fund for observations under Rule XXI, para. 3, and the Fund submitted observations on February 13, 2006.
- The Tribunal decided not to hold oral proceedings, determining they were unnecessary; it relied in part on the transcript of oral hearings before the Grievance Committee and the Tribunal’s authority to weigh that record as evidence (citing Applicant v. IMF, IMFAT Judgment No. 1996-1, para. 17).

### Parties’ positions and primary issues
- Applicant’s contentions:
  - The decision not to convert her fixed-term appointment to a regular staff position failed to take account of all relevant evidence and was arbitrary, capricious and an abuse of discretion.
  - Procedural irregularities occurred.
  - The Fund “mismanaged” her career.
  - The non-conversion represented discrimination on the basis of race and nationality.
- Respondent’s contentions:
  - The non-conversion decision was a reasonable exercise of managerial discretion, consistent with the Fund’s internal law and supported by relevant evidence.
  - Applicant, despite regular feedback and monitoring, failed to achieve the level of performance and potential required for conversion to regular staff.
  - The Fund denies procedural irregularities and discrimination.

### Document production requests and Tribunal rulings
- Applicant requested production of documents including:
  1. Documents relating to performance standards for Fund Staff Assistants from 1999 until Applicant’s separation.
  2. Documents evidencing actions to share documents in point 1 with Applicant.
  3. Documents relating to managerial responsibilities for professional development of subordinates, including training materials, guidelines, Performance Management Handbook, and documents relating to monitoring of fixed-term staff.
  4. Documents evidencing actions taken to develop Applicant’s skills for a Fund career.
  5. Documents relating to diversity (race, nationality, gender) of “Department 1” from 1999 until Applicant’s separation.
  6. Communications regarding Applicant among “Department 1” personnel.
- The Tribunal denied all requests on December 7, 2005, on these bases:
  - Requests 1, 2, 4, 5 and 6 were denied because Respondent stated all responsive documents had been provided during Grievance proceedings and Applicant proffered no evidence of additional responsive documents; Applicant had not shown denial of access to documents by the Fund (Rule XVII, para. 1).
  - Request 3 was partially satisfied; the Fund objected to providing guidance materials for managers relating specifically to performance issues of regular staff members, contending such documents were not relevant to legality of a conversion decision for a fixed-term staff member, and the Tribunal sustained that objection.

### Factual background: employment history and performance assessments
- Employment timeline and appointment terms:
  - Applicant first employed as a contractual employee beginning in February 1998 as a Staff Assistant in the Secretarial Support Group (SSG).
  - Appointed as a fixed-term staff member in February 2000 under GAO No. 3, Rev. 6 (May 1, 1989).
  - Fixed-term appointment letter specified a two-year period commencing on February 15, 2000 and a six-month probationary period; Applicant was subject to the Guidelines for Fixed-Term Appointments (1995).
- Early supervision and probation:
  - At the end of the six-month probationary period the Administrative Officer reported satisfactory completion: “She is conscientious in her approach to her work and has already acquired a good basic knowledge of Fund practices and procedures. Ms. [“U”] has the potential to become a good staff assistant.”
  - The Administrative Officer’s Memorandum to Files noted areas for improvement including asking questions to ensure understanding, seeking advice in prioritizing work at peak times, and checking written work for accuracy; recommended a senior assistant check work before submission to supervisor.
- Assignments and performance ratings:
  - First nine months of the fixed-term, Applicant worked as a “floater”; on November 1, 2000 Applicant was assigned to “Division i.”
  - Annual Performance Report for calendar year 2000, signed by the Chief of “Division i,” rated her performance “2” on a 1-4 scale and stated: “Overall, her performance was good with some areas for improvement.... she has the potential to become a strong staff assistant particularly if she continues to make efforts to ensure the meticulousness and accuracy of her contributions.”
  - 2000 Performance Plan included gaining familiarity with Fund procedures and data management, improving meticulousness through an editing skills course and other courses.
- Extensions and development plans:
  - Eighteen months after appointment, Senior Personnel Manager (SPM) prepared an Expiration of Fixed-Term Appointment form dated August 15, 2001 (signed September 10, 2001) to extend the appointment 6 months beyond the scheduled February 14, 2002 expiration rather than convert or allow expiration.
  - The Expiration form recorded strengths (reliable, cooperative, flexible), a particular weakness of continuing lack of accuracy in typewritten work from heavily edited drafts (a core competency), and other areas for improvement (initiative in asking questions, seeking advice on prioritization).
  - The form stated reasons for extension and monitoring: transfer to another division to be one of two assistants for daily opportunities to hone editing and proofing skills; Applicant applying for Editing Skills I course and studying at the SDC; the Office Manager to monitor monthly with the Division Chief/Admin. Assistant.
  - On September 10, 2001 Applicant was transferred to “Division ii” and placed under close supervision; November 2001 Notes to Files recorded observed progress.
  - In February 2002 decision made to seek an additional 6-month extension through February 14, 2003. The SPM’s March 13, 2002 memorandum to HRD stated that although Applicant had not learned skills quickly enough to justify conversion then, she was keen to improve; a development plan designed with SDD had produced considerable improvement and another division placement allowed continued close supervision; “six months is not an adequate period to evaluate and judge her improvement.”
- Subsequent performance evaluation:
  - Annual Performance Report for calendar year 2001 rated her “3” and stated: “In working closely with the administrative assistant in the division, she is becoming more familiar with the Fund’s working practices and software.... Ms. [“U”] has not yet performed strongly enough to justify conversion to regular staff at this time and will need to show significant improvement at the end of the extension period.”
  - Division Chief noted a formal evaluation would be made in September 2002 given the extension into February 2003; development objectives included gaining speed and accuracy in incorporating comments on drafts, paying attention to proofreading, and gaining familiarity with preparation of Fund documents. Applicant commented she “...appreciate[d] the willingness of [her] manager to provide regular feedback.”

*Judgment of the Administrative Tribunal of the International Monetary Fund (adopted June 7, 2006).*

### Background and performance monitoring (June–August 2002)
- On June 18, 2002, a Human Resources Officer (HRO) from the Staff Development Division (SDD) of HRD held an additional performance discussion with Applicant “U” to (i) discuss her work performance as described in the APR and the corresponding performance action plan, and (ii) to ascertain her understanding of her weaknesses and the steps identified for her to improve.
- Memorandum for Files of July 3, 2002, the HRO concluded: “A brief report by [the mission chief] on Ms. [“U”]’s current performance indicated her strong effort in improving her performance with visible results. Ms. [“U”] has been able to cope with a heavy workload and has successfully completed her tasks on time. The monitoring of her performance by her supervisors will continue. I assured Ms. [“U”] of my availability to provide any appropriate form of assistance in order for her to further improve her performance. I also informed her of the possibility that her current status as a fixed-term staff will not be converted to regular if her performance continues to suffer.”
- On June 11, 2002, the Assistant to the Senior Personnel Manager (ASPM) emailed Applicant outlining two major issues to develop performance:
  - “Improve the speed of your work together with accuracy, and”
  - “Improve your communication with your supervisors and colleagues and feel comfortable and willing to ask any questions if unsure of your assignment.”
- ASPM noted a training program should be completed “by the end of July” and requested Applicant’s self-evaluation of performance improvements after one month.
- From June 3 - July 12, 2002, the Senior Administrative Assistant maintained a daily log describing coaching efforts and, in a July 12, 2002 cover memorandum, observed: “In my view, she is making progress. Her work requires less intervention, and she now seems to have a clearer understanding of what is expected of her and how to handle her various tasks.”
- Meetings on August 12, 2002, assessed Applicant’s July 2002 performance. On August 27, 2002, the Division Chief’s Quarterly Performance Review noted communications improvements but remaining concerns:
  - “the speed with which she completes her assignments often falls short of the Fund’s standards.”
  - “Ms. [“U”] must also pay greater attention to details and accuracy in performing even relatively small tasks, such as photocopying and preparing leave slips.”
  - “Ms. [“U”] does not, on a sufficiently regular basis, fully incorporate comments received from economists into revised texts and proofread documents before they are sent from the division.”

### Decision not to convert and managerial deliberations (late August–September 2002)
- In late August, the Senior Personnel Manager (SPM) convened a meeting of Division management and others where participants reviewed Applicant’s APRs and performance documentation; the SPM testified there was “unanimity on the question of non-conversion.”
- The ASPM recalled the decision as “collective” and reported the Division Chief described Applicant as “barely adequate” and recommended non-conversion.
- On September 6, 2002, the SPM notified Applicant of the decision not to convert her appointment.
- The Expiration of Fixed-Term Appointment form dated September 6, 2002 recorded:
  - “While Ms. [“U”]’s performance has shown improvement in the last 6 months, it continues to be just below the level expected of a staff assistant at Grade A5.”
  - “She is not being attentive to details, the work continues to have many inaccuracies, has not become adequately familiar with Fund style with respect to correspondence and drafts, still needs close supervision, and cannot substitute adequately for higher level assistants.”
  - Potential for the longer term: “we do not believe that Ms. [“U”] has long term career prospects in the Fund. Despite all the efforts of both parties, the improvement of her performance has not been sufficient to meet the Fund standards for an A5 staff assistant, and even if she eventually may be able to perform at that level, we judge that she would not be able to advance beyond that level.”

### Administrative review and Tribunal proceedings (2003–2005)
- Applicant sought administrative review pursuant to GAO No. 31 and filed a Grievance on February 4, 2003.
- The Grievance Committee issued its Recommendation and Report on February 9, 2004, recommending denial of Applicant’s Grievance on the ground that Applicant had not shown the non-conversion decision was arbitrary, capricious, discriminatory or procedurally defective in a manner that substantially affected the outcome.
- Fund management accepted the Committee’s recommendation on March 2, 2004.
- Applicant filed her Application with the Administrative Tribunal on May 26, 2004.

### Parties’ principal contentions (restate)
- Applicant sought as relief:
  - reinstatement with a fair opportunity to demonstrate suitability for conversion to regular staff;
  - compensatory and moral damages in the amount of three years net salary; and
  - legal costs.
- Respondent maintained the decision was a reasonable exercise of managerial discretion and consistent with the Guidelines for Fixed-Term Appointments; Applicant was given regular feedback, monitoring, and ample opportunities to improve but did not attain the level required for conversion.

### Legal framework: Guidelines for Fixed-Term Appointments and standards of review
- Guidelines for Fixed-Term Appointments (August 1995) applied to appointments commencing prior to December 2002 and govern the instant case.
  - Purpose: “... to ensure that staff on fixed-term appointments gain an accurate understanding of the meaning of their fixed-term status and a realistic view of their prospects of being converted to a ‘regular’ (indefinite) appointment upon expiration of their fixed term.” (Guidelines, p. 1.)
  - “[T]he Fund’s legal obligation does not go beyond the initial term ...” (emphasis in original).
  - Three criteria for conversion: (a) performance during the fixed-term, (b) potential for a career with the Fund, and (c) the staffing needs of the organization.
- Monitoring requirements under the Guidelines:
  - Checkpoints at six, twelve and eighteen months after appointment.
  - For Grade A1-A8 staff, the first six months normally constitute a formal probationary period.
  - At the 12-month assessment “... prospects for conversion should be discussed ..., and this discussion should be reflected in the write-up, but no commitment can be made at this early stage. The complete assessment is reviewed by the Recruitment Division, and issues are raised with the staff member and the department as appropriate.” (Guidelines, p. 2.)
  - The formal decision as to conversion is to be taken eighteen months following the date of appointment.
  - “As an exception, if a department finds that it has inadequate information upon which to base a final decision about a fixed-term appointee’s conversion to regular staff, the department may request a one-time extension of the appointment for up to one year.” (Guidelines.)
- Standard of judicial review applied by the Administrative Tribunal:
  - Discretionary managerial decisions may 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.” (Report of the Executive Board, p. 19.)
  - The Tribunal treats conversion decisions as “performance-based decisions” and defers to management’s assessment where the record shows performance deficiencies.

### Tribunal precedent and comparative decisions
- Tribunal referenced prior decisions:
  - IMFAT Judgment No. 1997-1 (Ms. “C”) — sustained a non-conversion decision as a reasonable exercise of managerial discretion but found procedural irregularities warranting partial relief.
  - IMFAT Judgment No. 2003-1 (Ms. “J”) and IMFAT Judgment No. 2005-1 (Mr. “F”) — illustrate deference to management on assessments of qualifications and suitability for conversion.
  - World Bank Administrative Tribunal (Salle v. IBRD, WBAT Decision No. 10 (1982)) — observed that the Tribunal will not substitute its own judgment for that of the Respondent on the staff member’s suitability for permanent employment.

### Legal standard for conversion of fixed-term appointments
- Conversion discretion is distinct from management’s discretion to separate a confirmed staff member for unsatisfactory performance.
- The concept of unsatisfactory performance in probation is wider than for confirmed staff (McNeill v. IBRD, WBAT Decision No. 157 (1977), para. 34).
- The Fund’s Guidelines require “a clearly positive assessment for taking the important step of committing the Fund to providing a career opportunity for the individual.”
- A fixed-term appointee has no entitlement to continuation beyond the appointment term; the burden of proof rests with the applicant challenging non-conversion (Ms. “C”, para. 21).
- Discretion to decide suitability for conversion is constrained by principles of fairness: adequate opportunity to demonstrate satisfactory performance, adequate supervision and guidance, periodic evaluation, and reasonable opportunity to remedy deficiencies (McNeill, para. 44; Salle, para. 32).

### Supervision, monitoring, and opportunities to improve (case application)
- Supervisors must provide suitable assignments, clear expectations, appropriate guidance, and timely feedback (Fund’s Guidelines).
- Indicative adequate supervision: exposure to tasks required of permanent employees and opportunity to benefit from supervisors’ guidance and comments (Salle, para. 33).
- In Ms. “U”’s case:
  - Management extended her fixed-term appointment for two 6-month intervals to allow further demonstration of suitability.
  - Second 6-month extension because “[a]lthough she has not been learning the skills quickly enough to justify a conversion now, Ms. [“U”] is keen and anxious to improve her skills” (SPM’s Memorandum to HRD of March 13, 2002).
  - Transferred to “Division ii” to provide “daily opportunities to hone her editing and proofing skills.”
  - Assigned to an experienced Senior Administrative Assistant who engaged in detailed monitoring and coaching.

### Performance appraisal record and interpretive guidance
- Ms. “U”’s performance assessments over time were mixed: occasional improvement noted but overall assessed below the norm required for conversion.
- Fluctuation in appraisals does not by itself indicate procedural irregularity (Salle, para. 28).
- Periodic appraisals and extensions signaled continued doubts about conversion prospects; e.g., 2001 Annual Performance Report stated she “…will need to show significant improvement at the end of the extension period” to justify conversion.
- Documentation of the first 6-month extension and transfer identified specific weaknesses:
  - “A particular weakness is a continuing lack of accuracy in her typewritten work from heavily edited drafts--a core competency for staff assistants.”
  - Two other areas for improvement: take initiative in asking questions to ensure understanding of instructions and seek advice in prioritizing work at busy times. (Expiration of Fixed-Term Appointment Form of August 15, 2001.)

### Procedural fairness, evaluation of evidence, and Tribunal review
- The Respondent must take into account all relevant and significant facts for each period of review (Romain (No. 2) v. IBRD, WBAT Decision No. 164, para. 19).
- The record showed the Fund met this obligation for Ms. “U”:
  - The Chief of “Division i” attached the mid-year performance memorandum to the 2000 APR.
  - The Chief of “Division ii” testified to a collaborative APR process that solicited input from the earlier Division Chief.
  - The Chief of “Division ii” provided direct observations noting communications improvements but persistent problems with accuracy and detail, including “an inordinate amount of mistakes that ended up in the final document.”
- Tribunal findings:
  - No irregularity of procedure and no “career mismanagement” found.
  - Rejected Applicant’s contention that management had already decided not to convert and had failed to consider or properly weigh evidence.

### Discrimination claim
- Applicant alleged discrimination on the basis of race and nationality, invoking the N Rules and later policies prohibiting discrimination.
- Applicant advanced no specific allegations or proof; she asserted only a “discriminatory impact” from a reduction in the number of persons of her racial background in her Department.
- Tribunal found that allegation far from probative of discrimination and concluded Applicant did not show discrimination affected the conversion decision.

### Tribunal findings and decision
- Key factual and legal findings:
  - Applicant was repeatedly warned of performance shortcomings consistent with the Fund’s Guidelines for Fixed-Term Appointments.
  - Applicant was provided with transfers, supervision, coaching, and Staff Development Division assistance to advance her skills.
  - Management engaged in collaborative APR completion, taking into account views of former supervisors.
  - Despite signs of progress, after two extension periods supervisors judged Applicant’s progress insufficient and her potential for a Fund career unproven.
  - The Tribunal will not substitute its judgment for managers’ considered determination made without improper motive.
- Decision:
  - The Administrative Tribunal of the International Monetary Fund unanimously decides that the Application of Ms. “U” is denied.

*Administrative Tribunal of the International Monetary Fund; Washington, D.C.; June 7, 2006.*

### Introduction

### j2006-3 - Introduction

### Tribunal proceedings and procedural history
- 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 on February 13, 14 and 15, 2006 and adopted its Judgment on June 7, 2006.
- Applicant filed her Application on May 26, 2004. The Application was transmitted to Respondent on June 1, 2004. Pursuant to Rule XIV, para. 4, the Registrar issued a summary of the Application within the Fund on June 4, 2004.
- Respondent filed its Answer on July 16, 2004. Applicant filed her Reply on August 18, 2004. Respondent’s Rejoinder was filed on September 20, 2004.
- On January 25, 2006 Applicant submitted a statement of legal costs requested in the Application; the President directed transmission to the Fund for observations under Rule XXI, para. 3, and the Fund submitted observations on February 13, 2006.
- The Tribunal decided not to hold oral proceedings, determining they were unnecessary; it relied in part on the transcript of oral hearings before the Grievance Committee and the Tribunal’s authority to weigh that record as evidence (citing Applicant v. IMF, IMFAT Judgment No. 1996-1, para. 17).

### Parties’ positions and primary issues
- Applicant contests the Fund’s decision not to convert her fixed-term appointment to a regular staff position, alleging:
  - The decision failed to take account of all relevant evidence and was arbitrary, capricious and an abuse of discretion.
  - Procedural irregularities occurred.
  - The Fund “mismanaged” her career.
  - The non-conversion represented discrimination on the basis of race and nationality.
- Respondent maintains:
  - The non-conversion decision was a reasonable exercise of managerial discretion, consistent with the Fund’s internal law and supported by relevant evidence.
  - Applicant, despite regular feedback and monitoring, failed to achieve the level of performance and potential required for conversion to regular staff.
  - The Fund denies procedural irregularities and discrimination.

### Document production requests and Tribunal rulings
- Applicant requested production of documents including:
  1. Documents relating to performance standards for Fund Staff Assistants from 1999 until Applicant’s separation.
  2. Documents evidencing actions to share documents in point 1 with Applicant.
  3. Documents relating to managerial responsibilities for professional development of subordinates, including training materials, guidelines, Performance Management Handbook, and documents relating to monitoring of fixed-term staff.
  4. Documents evidencing actions taken to develop Applicant’s skills for a Fund career.
  5. Documents relating to diversity (race, nationality, gender) of “Department 1” from 1999 until Applicant’s separation.
  6. Communications regarding Applicant among “Department 1” personnel.
- The Tribunal, after exchanging views and considering Rule XVII, denied all requests on December 7, 2005, on the following bases:
  - Requests 1, 2, 4, 5 and 6 were denied because Respondent stated all responsive documents had been provided during Grievance proceedings and Applicant proffered no evidence of additional responsive documents; Applicant had not shown denial of access to documents by the Fund (Rule XVII, para. 1).
  - Request 3 was partially satisfied; the Fund objected to providing guidance materials for managers relating specifically to performance issues of regular staff members, contending such documents were not relevant to legality of a conversion decision for a fixed-term staff member, and the Tribunal sustained that objection.

### Factual background: employment history and performance assessments
- Employment timeline and appointment terms:
  - Applicant was first employed as a contractual employee beginning in February 1998 as a Staff Assistant in the Secretarial Support Group (SSG).
  - Applicant was appointed as a fixed-term staff member in February 2000 under GAO No. 3, Rev. 6 (May 1, 1989).
  - The fixed-term appointment letter specified a two-year period commencing on February 15, 2000 and a six-month probationary period; Applicant was subject to the Guidelines for Fixed-Term Appointments (1995).
- Early supervision and probation:
  - At the end of the six-month probationary period the Administrative Officer reported satisfactory completion: “She is conscientious in her approach to her work and has already acquired a good basic knowledge of Fund practices and procedures. Ms. [“U”] has the potential to become a good staff assistant.”
  - The Administrative Officer’s Memorandum to Files noted areas for improvement including asking questions to ensure understanding, seeking advice in prioritizing work at peak times, and checking written work for accuracy; also recommended a senior assistant check work before submission to supervisor.
- Assignments and performance ratings:
  - For the first nine months of the fixed-term, Applicant worked as a “floater” within the Department; on November 1, 2000 Applicant was assigned to “Division i.”
  - Applicant’s Annual Performance Report (APR) for calendar year 2000, signed by the Chief of “Division i,” rated her performance “2” on a 1-4 scale and stated: “Overall, her performance was good with some areas for improvement.... she has the potential to become a strong staff assistant particularly if she continues to make efforts to ensure the meticulousness and accuracy of her contributions.”
  - The 2000 Performance Plan included continuing to gain familiarity with Fund procedures and data management, improving meticulousness through an editing skills course and other courses; the Reviewing Officer encouraged diligent implementation of the performance plan.
- Applicant’s concerns and managerial responses:
  - On August 2, 2001 Applicant informed the Office Manager that due to reduced workload she had less practice on documents and less exposure to the division chief’s handwriting, despite handling almost all administrative work in the division.
- Extensions and development plans:
  - Eighteen months after appointment, the Senior Personnel Manager (SPM) prepared an Expiration of Fixed-Term Appointment form dated August 15, 2001 (signed September 10, 2001) to extend the appointment 6 months beyond the scheduled February 14, 2002 expiration rather than convert or allow expiration.
  - The Expiration form recorded: strengths (reliable, cooperative, flexible), a particular weakness of continuing lack of accuracy in typewritten work from heavily edited drafts (a core competency), and other areas for improvement (initiative in asking questions, seeking advice on prioritization).
  - The form stated reasons for extension and monitoring: transfer to another division to be one of two assistants for daily opportunities to hone editing and proofing skills; Applicant applying for Editing Skills I course and studying at the SDC; the Office Manager to monitor monthly with the Division Chief/Admin. Assistant.
  - On September 10, 2001 Applicant was transferred to “Division ii” and placed under close supervision; November 2001 Notes to Files recorded observed progress.
  - In February 2002 a decision was made to seek an additional 6-month extension through February 14, 2003. The SPM’s March 13, 2002 memorandum to HRD stated that although Applicant had not learned skills quickly enough to justify conversion then, she was keen to improve; a development plan designed with SDD had produced considerable improvement and another division placement allowed continued close supervision; “six months is not an adequate period to evaluate and judge her improvement.”
- Subsequent performance evaluation:
  - Applicant’s Annual Performance Report for calendar year 2001 rated her “3” and stated: “In working closely with the administrative assistant in the division, she is becoming more familiar with the Fund’s working practices and software.... Ms. [“U”] has not yet performed strongly enough to justify conversion to regular staff at this time and will need to show significant improvement at the end of the extension period.”
  - The Division Chief noted a formal evaluation would be made in September 2002 given the extension into February 2003; development objectives included gaining speed and accuracy in incorporating comments on drafts, paying attention to proofreading, and gaining familiarity with preparation of Fund documents. Applicant commented she “...appreciate[d] the willingness of [her] manager to provide regular feedback.”

*Judgment of the Administrative Tribunal of the International Monetary Fund (adopted June 7, 2006).*

### 21.      On June 18, 2002, a Human Resources Officer (HRO) from the Staff Development

### j2006-3 - 21.

### Background and performance monitoring (June–August 2002)
- On June 18, 2002, a Human Resources Officer (HRO) from the Staff Development Division (SDD) of HRD held an additional performance discussion with Applicant “U” to (i) discuss her work performance as described in the APR and the corresponding performance action plan, and (ii) to ascertain her understanding of her weaknesses and the steps identified for her to improve.
- In a Memorandum for Files of July 3, 2002, the HRO concluded: “A brief report by [the mission chief] on Ms. [“U”]’s current performance indicated her strong effort in improving her performance with visible results. Ms. [“U”] has been able to cope with a heavy workload and has successfully completed her tasks on time. The monitoring of her performance by her supervisors will continue. I assured Ms. [“U”] of my availability to provide any appropriate form of assistance in order for her to further improve her performance. I also informed her of the possibility that her current status as a fixed-term staff will not be converted to regular if her performance continues to suffer.”
- On June 11, 2002, the Assistant to the Senior Personnel Manager (ASPM) emailed Applicant outlining two major issues to develop performance:
  - “Improve the speed of your work together with accuracy, and”
  - “Improve your communication with your supervisors and colleagues and feel comfortable and willing to ask any questions if unsure of your assignment.”
- The ASPM noted a training program should be completed “by the end of July” and requested Applicant’s self-evaluation of performance improvements after one month.
- From June 3 - July 12, 2002, the Senior Administrative Assistant maintained a daily log describing coaching efforts and, in a July 12, 2002 cover memorandum, observed: “In my view, she is making progress. Her work requires less intervention, and she now seems to have a clearer understanding of what is expected of her and how to handle her various tasks.”
- Meetings on August 12, 2002, assessed Applicant’s July 2002 performance. On August 27, 2002, the Division Chief’s Quarterly Performance Review noted: Applicant’s “communications skills have improved considerably,” but remaining concerns included:
  - “the speed with which she completes her assignments often falls short of the Fund’s standards.”
  - “Ms. [“U”] must also pay greater attention to details and accuracy in performing even relatively small tasks, such as photocopying and preparing leave slips.”
  - “Ms. [“U”] does not, on a sufficiently regular basis, fully incorporate comments received from economists into revised texts and proofread documents before they are sent from the division.”

### Decision not to convert and managerial deliberations (late August–September 2002)
- In late August, the Senior Personnel Manager (SPM) convened a meeting of Division management and others where the participants reviewed Applicant’s APRs and performance documentation. The SPM testified there was “unanimity on the question of non-conversion.”
- The ASPM recalled the decision as “collective” and reported the Division Chief described Applicant as “barely adequate” and recommended non-conversion.
- On September 6, 2002, the SPM notified Applicant of the decision not to convert her appointment.
- The Expiration of Fixed-Term Appointment form dated September 6, 2002 recorded:
  - “While Ms. [“U”]’s performance has shown improvement in the last 6 months, it continues to be just below the level expected of a staff assistant at Grade A5.”
  - “She is not being attentive to details, the work continues to have many inaccuracies, has not become adequately familiar with Fund style with respect to correspondence and drafts, still needs close supervision, and cannot substitute adequately for higher level assistants.”
  - Potential for the longer term: “we do not believe that Ms. [“U”] has long term career prospects in the Fund. Despite all the efforts of both parties, the improvement of her performance has not been sufficient to meet the Fund standards for an A5 staff assistant, and even if she eventually may be able to perform at that level, we judge that she would not be able to advance beyond that level.”

### Administrative review and Tribunal proceedings (2003–2005)
- Applicant sought administrative review pursuant to GAO No. 31 and filed a Grievance on February 4, 2003.
- The Grievance Committee issued its Recommendation and Report on February 9, 2004, recommending denial of Applicant’s Grievance on the ground that Applicant had not shown the non-conversion decision was arbitrary, capricious, discriminatory or procedurally defective in a manner that substantially affected the outcome.
- Fund management accepted the Committee’s recommendation on March 2, 2004.
- Applicant filed her Application with the Administrative Tribunal on May 26, 2004.

### Parties’ principal contentions
- Applicant’s principal contentions included:
  - The decision not to convert failed to consider all evidence and was arbitrary and capricious.
  - The non-conversion decision was affected by procedural irregularities.
  - The Fund “mismanaged” Applicant’s career.
  - The non-conversion decision was discriminatory on the basis of Applicant’s race and nationality.
  - Applicant sought as relief:
    - reinstatement with a fair opportunity to demonstrate suitability for conversion to regular staff;
    - compensatory and moral damages in the amount of three years net salary; and
    - legal costs.
- Respondent’s principal contentions included:
  - The decision was a reasonable exercise of managerial discretion and consistent with the Guidelines for Fixed-Term Appointments.
  - The decision was based on a proper assessment of Applicant’s performance and potential, and did not fail to take account of any material facts.
  - Applicant was given regular feedback, monitoring, and ample opportunities to improve her performance but did not attain the level required for conversion.
  - Applicant had not shown procedural irregularities, mismanagement of her career, or discrimination on the basis of race or nationality.

### Legal framework: Guidelines for Fixed-Term Appointments and standards of review
- The Fund’s Guidelines for Fixed-Term Appointments (August 1995) applied to appointments commencing prior to December 2002 and govern the instant case.
  - The Guidelines state their purpose is “... to ensure that staff on fixed-term appointments gain an accurate understanding of the meaning of their fixed-term status and a realistic view of their prospects of being converted to a ‘regular’ (indefinite) appointment upon expiration of their fixed term.” (Guidelines, p. 1.)
  - The Guidelines inform that “[t]he Fund’s legal obligation does not go beyond the initial term ...” (emphasis in original).
  - The Guidelines set out three criteria for conversion: (a) performance during the fixed-term, (b) potential for a career with the Fund, and (c) the staffing needs of the organization.
- Monitoring requirements under the Guidelines:
  - Checkpoints at six, twelve and eighteen months after appointment.
  - For Grade A1-A8 staff, the first six months normally constitute a formal probationary period.
  - At the 12-month assessment “... prospects for conversion should be discussed ..., and this discussion should be reflected in the write-up, but no commitment can be made at this early stage. The complete assessment is reviewed by the Recruitment Division, and issues are raised with the staff member and the department as appropriate.” (Guidelines, p. 2.)
  - The formal decision as to conversion is to be taken eighteen months following the date of appointment.
  - “As an exception, if a department finds that it has inadequate information upon which to base a final decision about a fixed-term appointee’s conversion to regular staff, the department may request a one-time extension of the appointment for up to one year.” (Guidelines.)
- Standard of judicial review applied by the Administrative Tribunal:
  - Discretionary managerial decisions may 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.” (Report of the Executive Board, p. 19.)
  - The Tribunal treats conversion decisions as “performance-based decisions” and defers to management’s assessment where the record shows performance deficiencies.

### Tribunal precedent and comparative decisions
- The Tribunal referenced prior decisions:
  - IMFAT Judgment No. 1997-1 (Ms. “C”) where the Tribunal sustained a non-conversion decision as a reasonable exercise of managerial discretion but found procedural irregularities affecting the non-conversion decision that warranted partial relief.
  - IMFAT Judgment No. 2003-1 (Ms. “J”) and IMFAT Judgment No. 2005-1 (Mr. “F”) illustrating deference to management on assessments of qualifications and suitability for conversion.
  - The World Bank Administrative Tribunal (Salle v. International Bank for Reconstruction and Development, WBAT Decision No. 10 (1982)) observed: “... the Tribunal will not substitute its own judgment for that of the Respondent on the staff member’s suitability for permanent employment.” 

*Source: Administrative Tribunal proceedings and Fund documents as summarized in j2006-3.*

### 37.      Moreover, the discretion at issue in the conversion of fixed-term appointments is

### j2006-3 - 37.      Moreover, the discretion at issue in the conversion of fixed-term appointments is

### Legal standard for conversion of fixed-term appointments
- Conversion discretion is distinct from management’s discretion to separate a confirmed staff member for unsatisfactory performance.
- The concept of unsatisfactory performance in probation is wider than for confirmed staff (McNeill v. International Bank for Reconstruction and Development, WBAT Decision No. 157 (1977), para. 34).
- The Fund’s Guidelines require “a clearly positive assessment for taking the important step of committing the Fund to providing a career opportunity for the individual.”
- A fixed-term appointee has no entitlement to continuation beyond the appointment term; the burden of proof rests with the applicant challenging non-conversion (Ms. “C”, para. 21).
- Discretion to decide suitability for conversion is constrained by principles of fairness: adequate opportunity to demonstrate satisfactory performance, adequate supervision and guidance, periodic evaluation, and reasonable opportunity to remedy deficiencies (McNeill, para. 44; Salle, para. 32).

### Supervision, monitoring, and opportunities to improve
- Supervisors must provide suitable assignments, clear expectations, appropriate guidance, and timely feedback (Fund’s Guidelines).
- Indicative adequate supervision: exposure to tasks required of permanent employees and opportunity to benefit from supervisors’ guidance and comments (Salle, para. 33).
- Supervision and guidance may consist in day-to-day work contacts and exposure to relevant tasks (Salle, para. 36).
- In Ms. “U”’s case:
  - Management extended her fixed-term appointment for two 6-month intervals to allow further demonstration of suitability.
  - The second 6-month extension was effected because “[a]lthough she has not been learning the skills quickly enough to justify a conversion now, Ms. [“U”] is keen and anxious to improve her skills” (SPM’s Memorandum to HRD of March 13, 2002).
  - She was transferred to “Division ii” to provide “daily opportunities to hone her editing and proofing skills.”
  - She was assigned to an experienced Senior Administrative Assistant who engaged in detailed monitoring and coaching.

### Performance appraisal record and interpretive guidance
- Ms. “U”’s performance assessments over time were mixed: occasional improvement noted but overall assessed below the norm required for conversion.
- Fluctuation in appraisals does not by itself indicate procedural irregularity (Salle, para. 28).
- Periodic appraisals and extensions should have signaled to Ms. “U” continued doubts about conversion prospects; e.g., the 2001 Annual Performance Report stated she “…will need to show significant improvement at the end of the extension period” to justify conversion.
- Documentation of the first 6-month extension and transfer identified specific weaknesses:
  - “A particular weakness is a continuing lack of accuracy in her typewritten work from heavily edited drafts--a core competency for staff assistants.”
  - Two other areas for improvement: take initiative in asking questions to ensure understanding of instructions and seek advice in prioritizing work at busy times. (Expiration of Fixed-Term Appointment Form of August 15, 2001.)

### Procedural fairness, evaluation of evidence, and Tribunal review
- The Respondent has an obligation to take into account all relevant and significant facts for each period of review (Romain (No. 2) v. IBRD, WBAT Decision No. 164, para. 19).
- The record shows the Fund met this obligation for Ms. “U”:
  - The Chief of “Division i” attached the mid-year performance memorandum to the 2000 APR.
  - The Chief of “Division ii” testified to a collaborative APR process that solicited input from the earlier Division Chief.
  - The Chief of “Division ii” provided direct observations noting some communications improvements but persistent problems with accuracy and detail, including “an inordinate amount of mistakes that ended up in the final document.”
- The Tribunal found no irregularity of procedure and no “career mismanagement” in the non-conversion decision.
- The Tribunal rejected Applicant’s contention that management had already decided not to convert and had failed to consider or properly weigh evidence.

### Discrimination claim
- Applicant alleged the non-conversion was affected by discrimination on the basis of race and nationality, invoking the N Rules and later policies prohibiting discrimination.
- Applicant advanced no specific allegations or proof; she asserted only a “discriminatory impact” from a reduction in the number of persons of her racial background in her Department.
- The Tribunal found that the alleged fact was far from probative of discrimination and concluded Applicant did not show discrimination affected the conversion decision.

### Tribunal findings and decision
- Key factual and legal findings:
  - Applicant was repeatedly warned of performance shortcomings consistent with the Fund’s Guidelines for Fixed-Term Appointments.
  - Applicant was provided with transfers, supervision, coaching, and Staff Development Division assistance to advance her skills.
  - Management engaged in collaborative APR completion, taking into account views of former supervisors.
  - Despite signs of progress, after two extension periods supervisors judged Applicant’s progress insufficient and her potential for a Fund career unproven.
  - The Tribunal will not substitute its judgment for managers’ considered determination made without improper motive.
- Decision:
  - The Administrative Tribunal of the International Monetary Fund unanimously decides that the Application of Ms. “U” is denied.

---


_Source: https://www.imf.org/-/media/files/imfat/j2006-3.pdf_