## Administrative Tribunal of the International Monetary Fund — Introduction (j2007-3) ## Source details **Canonical URL:** [Administrative Tribunal of the International Monetary Fund — Introduction (j2007-3)](https://www.imf.org/-/media/files/imfat/j2007-3.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2007-3.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2007-3.pdf.json) --- ### Case and parties - Tribunal composition: Judge Stephen M. Schwebel, President; Judges Nisuke Ando and Michel Gentot, Associate Judges. - Event was held on May 21 and 22, 2007. - Applicant: Mr. Michel D’Aoust, a staff member of the Fund. - Respondent: International Monetary Fund. ### Applicant’s claims (summarized) - Challenges elements of the process filling the vacancy for Deputy Division Chief of the Recruitment and Staffing Division (“RSD”) of the Human Resources Department (“HRD”) for which Applicant was an unsuccessful candidate. - Specific contentions: - The three candidates shortlisted (including the appointee) did not meet the qualifications in the Vacancy Announcement and Job Standard and should have been rejected at screening. - The error was repeated by the Selection Panel, the Head of the hiring Department, and the Review Committee. - The Fund improperly took account of “diversity profiles,” causing impermissible discrimination on grounds of gender, race, nationality and age. - Shortlisting and appointment were arbitrary, capricious and discriminatory and abused the Fund’s discretion. - He suffered damage to professional reputation and health and alleged retaliation for pursuing his complaint. - Challenges aspects of the Grievance Committee’s review of his Grievance. ### Respondent’s position (summarized) - Maintains no abuse of discretion and that the selection process and its stages were procedurally sound. - Assertions include: - All candidates’ qualifications were properly assessed at each stage. - Selection Panel had discretion to weight “critical competencies.” - Diversity considerations did not play a role in filling the vacancy. - Process designed to minimize bias and favoritism. - HRD addressed Applicant’s complaint in good faith and Applicant was not subject to retaliation. - Applicant’s challenge to aspects of Grievance Committee proceedings is not properly before the Tribunal. ### Procedural history — key dates and filings - Application filed with the Administrative Tribunal on December 19, 2005. - Registrar transmitted Application to Respondent on December 22, 2005. - Registrar circulated notice summarizing issues on January 9, 2006. - Respondent filed its Answer on February 3, 2006. - Applicant Reply submitted on March 2, 2006. - Respondent Rejoinder filed on April 5, 2006. - Applicant requested production of documents; Tribunal initially denied (February 15, 2006), later ordered in camera review (January 25, 2007); Respondent submitted documents February 8, 2007. Tribunal transmitted redacted official Fund CVs of nine candidates on April 23, 2007. - Applicant submitted observations May 1, 2007; Fund responded May 11, 2007. - Tribunal decided not to hold oral proceedings after considering available records (including full Grievance Committee transcript). ### Relief sought by Applicant - Rescission of the appointment. - Re-advertising of the vacancy (or additional monetary damages). - Damages for moral injury in the amount of $100,000. - Punitive damages. - Legal costs. --- ### Document production requests (Applicant) — items requested - Names and profiles of applicants to Vacancy No. 040356, listing for each candidate: degree(s) and professional certification(s); total years of human resources experience; total years of Fund human resources experience; total years of recruitment and staffing experience; total years of Fund recruitment and staffing experience; total years of supervisory and managerial experience; largest number of staff supervised; gender; race; nationality; and date of birth. - Applications of the shortlisted candidates. - The Fund history (“chrons”) of all nine candidates. - Resumes of the shortlisted candidates on file at time of application. ### Tribunal’s document production rulings - After in camera review, Tribunal transmitted official Fund CVs of the nine candidates with redaction of the names of the five non‑shortlisted candidates, substituting “male/female non‑shortlisted candidate.” - Applications for the vacancy and the “chrons” of all nine candidates were not transmitted to Applicant nor made part of the record due to privacy interests outweighing potential probative value. - Tribunal noted Fund’s statement it does not compile information as to race of candidates. --- ### Governing rules, vacancy instruments, and timeline ### Governing instruments cited - Staff Bulletin No. 03/27 (Senior Promotions and Appointments in the Fund) (December 19, 2003). - Career Opportunities: Policy and Guidelines (January 1, 2003, revised July 27, 2004). ### Job Standard and Vacancy Announcement — excerpts and minimum qualifications - Job Standard Title: “Deputy Division Chief (HR)”. - Typical duties include: assuming Acting Chief role; assisting Division Chief in supervising, assessing, developing and training staff; planning, organizing and monitoring division programs; ensuring proper organization and management of the division’s EDP facilities; overseeing implementation of major HR policy changes; taking lead role in development of major HR policies; responding to technical and factual questions of Executive Directors on Board papers within area of expertise. - Minimum Qualifications (Job Standard): “For Grade A14, educational development, typically acquired by the completion of a relevant advanced university degree, supplemented by a minimum of 11 years of relevant progressively responsible work experience, is required. Alternatively, a university degree and seventeen years of professional HR experience is required.” - Vacancy Announcement emphasized “critical competencies” including HR proficiency; Work management; Relationship building; Business understanding; and stated candidate “Should have potential for advancement to Grade B‑level positions.” - Grade level for vacancy: Grade A14. ### Selection stages and timeline - Initial applicants: nine Fund staff members applied. - RSD initial screening forwarded nine candidates to Selection Panel. - Selection Panel administered a blindly scored written test and Panel interviews; three highest‑ranked candidates were shortlisted. - HRD Director interviewed the shortlisted candidates and endorsed Selection Panel’s ranking. - Review Committee reviewed and recommended the top‑ranked candidate to management. - Selection announced to Recruitment and Staffing Division on December 15, 2004. - Applicant informed on November 8, 2004 that he had not been shortlisted; he met the HRD Director on November 12, 2004. --- ### Initial screening and hiring‑department assessment ### Initial screening (RSD HR Assistant) - Screening materials reviewed: applications, “chrons,” and official Fund CVs to ascertain whether candidates met “minimum qualifications” (education and experience). - HR Assistant did not assess “critical competencies” during initial screening. - HR Assistant concluded all nine applicants met the “minimum qualifications.” - Two shortlisted candidates (including appointee) did not have Fund recruitment experience but had recruitment experience in prior employment. - HR Assistant noted subjectivity in determining “relevant progressively responsible work experience.” ### Senior Personnel Manager (SPM) confirmation and approach - SPM reviewed screening and also considered “critical competencies,” took a “rough cut at the number of years of experience,” and decided to interview all nine rather than pre‑shortlist at that stage. - SPM determinations for the three shortlisted candidates: - Appointee: about 12 years of relevant experience and recruitment experience predating Fund employment. - Second shortlisted candidate: “between 10‑1/2 and 11‑1/2 years” of HR experience; some recruitment experience; two master’s degrees in human resource management. - Third shortlisted candidate: 10.7 years of relevant experience with recruitment and related policy experience prior to joining the Fund. - SPM confirmed inclusion of all nine candidates with Selection Panel members. ### Underfilling policy and eligibility note - “Underfilling” allows appointment at a grade lower than minimum where candidate is expected to meet requirements within 12 months. - It was undisputed that ten years of relevant experience would make a candidate eligible pursuant to the “underfilling” policy. --- ### Selection Panel methods and findings ### Panel composition and evaluation methods - Selection Panel comprised SPM (HRD), RSD Division Chief, Chief of another HRD Division, and HRD Business Advisor. - Selection instruments: blindly scored written test and Panel interviews, to be weighed equally in overall score. - Written test questions included: 1. “The Fund is mandated to hire the best qualified staff from as broad a geographical basis as possible. How would you formulate a recruitment strategy and take this mandate into account? How should the selection process be structured to avoid cultural bias in assessing candidates’ capabilities? 2. What would be the advantages and the drawbacks of introducing e‑recruitment in the Fund? And what recommendation would you formulate?” - Interview categories: “motivation; strategic vision, judgment and analytical skills; client relations; adaptability and sensitivity to diversity issues; managing conflict or differences of opinion; balancing roles; coaching and giving feedback; open communication, sharing information; organizational skills; delegation; and translating initiatives or mandates into deliverables.” - Interview practice: with minor exception, each candidate was asked the same questions by the same Panel members in the same order; interview ratings were made independently by each Panel member. ### Emphasis among qualifications - “Strategic vision” and broad HR proficiency, analytical and written communication skills (including Board paper production), and potential for advancement to Division Chief or B‑level positions were emphasized. - Recruitment knowledge and adaptability were taken into account but viewed as secondary because the position did not entail frequent participation in recruitment. - Managerial skills were regarded as very important; position entailed managing about half of RSD staff and on occasion acting as Division Chief. ### Key factual figures and dates - Number of candidates initially screened and forwarded: nine. - Number of shortlisted candidates: three. - Date selection announced to Recruitment of Staffing Division: December 15, 2004. - Appointee’s relevant experience: about 12 years. - Second shortlisted candidate’s HR experience: “between 10‑1/2 and 11‑1/2 years.” - Third shortlisted candidate’s relevant experience: 10.7 years. ### Tribunal’s assessment of the Selection Panel phase - Tribunal found no abuse of discretion in the Panel assigning different weights to competencies and in emphasizing broad managerial and HR fungibility. - Tribunal concluded the selection process tested recruitment competencies through both the written test and interview components. - Tribunal accepted that APRs were available but found they were not relied upon in creating the shortlist and may be used only to break ties. - Tribunal concluded no abuse of discretion in Selection Panel phase and in the Head of Department’s endorsement. --- ### Review Committee (“RC”) due diligence and endorsement ### RC role and procedures - RC role: review and advise the Managing Director on suitability of proposed candidates for managerial positions at Grades A14/15. - Departments provide RC with “a list of the three most qualified candidates in ranked order, together with detailed explanations for the rankings.” - Annex III (Staff Bulletin No. 03/27, p. 27) specifies RC reviews include: biographical information, last two APRs, TIG, MDC report, IDP, SAM if applicable, and list of shortlisted candidates and all other applicants. - Each RC member is assigned responsibility for independent inquiries through discussions with candidate’s supervisors, subordinates and peers. ### Due diligence in this case - One RC member conducted due diligence; reviewed “chrons,” CVs, APRs and salary information; interviewed SPM of HRD, contacted peers and subordinates, and interviewed the top‑ranked candidate. - RC member concluded all three shortlisted candidates were qualified and presented findings to the RC, which endorsed HRD’s top‑ranked candidate leading to appointment. ### Tribunal’s findings on RC process - Tribunal concluded the RC’s review was thorough and consistent with responsibilities under Fund regulations. - Delegation of inquiries to a single member for due diligence was consistent with RC practice and not defective here. - HRD Director was not obliged to inform the RC of Applicant’s intent to file a Grievance; absence of that information did not vitiate RC’s assessment. --- ### Allegations of discrimination, diversity policy, and Tribunal analysis ### Applicant’s discrimination allegations - Alleged impermissible consideration of “diversity profiles” resulting in discrimination on grounds of gender, race, nationality, and age. - Asserted the three shortlisted candidates were the most junior in grade and seniority, the three youngest, and the three with least total work experience; alleged selection discounted functional and managerial knowledge favoring younger candidates. ### Governing diversity and non‑discrimination rules and statements - Rule N‑1: Managing Director shall, subject to securing highest standards of efficiency and technical competence, pay due regard to recruiting personnel on as wide a geographical basis as possible. - Rule N‑2: employment, classification, promotion and assignment shall be made without discriminating on grounds of sex, race, creed, or nationality. - Discrimination Policy (July 3, 2003) defines discrimination as differences in treatment made on basis of personal characteristics (age, creed, ethnicity, gender, nationality, race, sexual orientation) that are unrelated to work‑related capabilities, qualifications and experience and have adverse employment impact. - Enhanced Diversity Action Plan (EDAP) (July 18, 2003) sets out objectives and indicators; quantitative Geographic Indicators include: - Africa—8 percent - MED—8 percent - European Transition Economies—8 percent - Developing Countries—40 percent - Gender Indicators include: - Women at B level—20 percent - Economists at B level—15‑20 percent - Specialized Career Streams at B level—35‑40 percent - EDAP states indicators “help guide the institution’s recruitment efforts but they are not binding for departments.” ### Tribunal’s analysis and findings on discrimination claims - Tribunal found the Fund’s selection process sound, including blind reading of test results, and no evidence that the Fund’s explanation was a pretext for reverse discrimination. - Tribunal rejected inference of discrimination from demographic outcome alone. - On age claim: Tribunal held it was within Fund’s discretion to weight “strategic vision” more heavily than specialized experience; HRD Director’s preference for attributes more common in younger candidates did not establish impermissible bias. - On gender/diversity: Selection Panel members and SPM testified diversity was not considered in deliberations; RC and HRD testimony explained diversity objectives operate as non‑binding indicators and safeguards to ensure qualified underrepresented candidates are not overlooked. - Tribunal cautioned that pursuit of diversity objectives must not cross into quotas or reverse discrimination and reaffirmed that the person best qualified must be appointed. --- ### Procedural objections, retaliation allegations, and remedies ### Grievance Committee and administrative review - Applicant sought administrative review under GAO No. 31 on December 6, 2004; HRD Director requested clarifying information December 10, 2004; Applicant filed Grievance on January 3, 2005. - Grievance Committee Recommendation and Report dated August 29, 2005 recommended denial of Applicant’s Grievance: decision was not arbitrary, capricious, discriminatory, or procedurally defective in a way that substantially affected outcome. - Deputy Managing Director notified Applicant on September 27, 2005 that management accepted the Committee’s recommendation. - Applicant filed Application with the Administrative Tribunal on December 19, 2005. ### Retaliation and disciplinary warning - Applicant alleged retaliation and that HRD Director threatened disciplinary action to intimidate him. - HRD Director’s memorandum of December 6, 2004 warned against misuse of confidential information and stated: “Any further use of information on this basis by you in the future will result in disciplinary proceedings.” - Tribunal found HRD Director acted in good faith in issuing the warning and that Applicant failed to substantiate retaliation claims. ### Claims for moral injury and medical evidence - Applicant sought damages for moral injury ($100,000), humiliation, injury to health and professional reputation. - Tribunal did not rely on two “medical reports” contested by the Fund and found Applicant did not substantiate claims of injury or entitlement to damages given the absence of irregularity in selection process. ### Remedies available and Tribunal’s decision - Tribunal emphasized limited scope to overturn managerial discretion except for “fatal flaw[s]” (arbitrariness, discrimination, error of law or fact, abuse of authority). - Tribunal concluded Applicant was “adversely affected” and had standing to bring challenge but found no abuse of discretion in initial screening, Selection Panel, HRD Director’s endorsement, or Review Committee review. - Decision: The Application of Mr. D’Aoust is denied. - Administrative Tribunal unanimously decided Application denied; decision signed by Stephen M. Schwebel, President; Nisuke Ando and Michel Gentot, Associate Judges; Registrar: Celia Goldman. - Location and date of decision: Washington, D.C., May 22, 2007. *Administrative Tribunal of the International Monetary Fund — Judgment — Washington, D.C., May 22, 2007 (j2007-3).* ### Introduction ### Introduction ### Case and parties - 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 by Mr. Michel D’Aoust. - The event was held on May 21 and 22, 2007. - Applicant: Mr. Michel D’Aoust, a staff member of the Fund. - Respondent: International Monetary Fund. ### Applicant’s claims - Applicant challenges elements of the process by which the Fund filled the vacancy for Deputy Division Chief of the Recruitment and Staffing Division (“RSD”) of the Human Resources Department (“HRD”), for which Applicant was an unsuccessful candidate. - Specific contentions: - The three candidates shortlisted for the position (including the individual ultimately selected for appointment) did not meet the qualifications set out in the Vacancy Announcement and Job Standard, and their applications should have been rejected at the screening stage. - The error was repeated by the Selection Panel, the Head of the hiring Department, and the Review Committee. - The Fund improperly took account of the “diversity profiles” of candidates, resulting in impermissible discrimination against him on the basis of his gender, race, nationality and age. - The initial shortlisting of three candidates and the ultimate selection and appointment were arbitrary, capricious and discriminatory and represented an abuse of the Fund’s discretion. - He suffered damage to his professional reputation and health as a result of the allegedly improper selection procedure. - He suffered retaliation for pursuing his complaint. - He challenges aspects of the review of his Grievance by the Fund’s Grievance Committee. ### Respondent’s position - Respondent maintains it did not abuse its discretion in filling the vacancy and that the overall selection process and its stages were procedurally sound. - Respondent’s assertions: - All candidates’ qualifications were properly assessed at each stage of the process. - It was within the Selection Panel’s discretion to determine the significance and weight of the various “critical competencies” in the Vacancy Announcement and to assess candidates accordingly. - Considerations of “diversity” did not play a role in filling the vacancy. - The process was designed to minimize bias and favoritism. - HRD addressed Applicant’s complaint in good faith and Applicant was not subject to retaliation. - Applicant’s challenge to elements of the Grievance Committee proceedings is not properly before the Tribunal. ### Procedural history and filings - Application filed with the Administrative Tribunal on December 19, 2005. - Registrar advised Applicant that the Application did not fulfill Rule VII, paras. 3 and 5 requirements; Applicant was given fifteen days to correct deficiencies and did so; the Application is considered filed on the original date. - Application transmitted to Respondent on December 22, 2005. - Registrar circulated a notice within the Fund summarizing the issues raised in the Application on January 9, 2006, pursuant to Rule IV, para. (f). - Respondent filed its Answer on February 3, 2006. - Applicant submitted his Reply on March 2, 2006. - Respondent’s Rejoinder filed on April 5, 2006. ### Requests for production of documents (Applicant’s requests) - Pursuant to Rule VII, para. 2(h) and Rule XVII, Applicant requested production of: 1. The names and profiles of applicants to Vacancy No. 040356, listing for each candidate: degree(s) and professional certification(s); total years of human resources experience; total years of Fund human resources experience; total years of recruitment and staffing experience; total years of Fund recruitment and staffing experience; total years of supervisory and managerial experience; largest number of staff supervised; gender; race; nationality; and date of birth; 2. The shortlisted candidates’ applications for the vacancy; 3. The Fund history of the shortlisted candidates as described in their “chrons” (the People Soft report which details the Fund history of a staff member); and 4. The resumes of the shortlisted candidates, on file at the time of their application for the vacancy in question. - Applicant’s stated relevance of requests: - To demonstrate that the shortlisted candidates did not meet vacancy requirements and should not have been forwarded for consideration. - To show that the requested documents formed part of the proceedings leading to shortlisting and appointment decisions. - The demographic information for the nine applicants was relevant to his contention of discrimination based on gender, race, nationality and age. ### Respondent’s objections to production - Respondent opposed Applicant’s requests, asserting: - The record was sufficiently complete as to the qualifications of the shortlisted candidates. - Disclosure would infringe on the privacy of the candidates. - The requested documents were irrelevant as to why Applicant was not selected for the vacancy, which Respondent considered the only decision properly before the Tribunal. ### Tribunal’s document production procedure and decisions - The Tribunal initially denied Applicant’s requests for documents on February 15, 2006. - On January 25, 2007, after reviewing additional pleadings, the Tribunal reconsidered and requested Respondent transmit all responsive documents for in camera review (Rule XVII, para. 2). - Respondent submitted responsive documents for inspection on February 8, 2007. - On April 23, 2007, following in camera review, the Tribunal: - Transmitted to Applicant the official Fund CVs of the nine candidates for the vacancy, with redaction of the names of the five non-shortlisted candidates, substituting “male/female non-shortlisted candidate.” - Determined that the applications for the vacancy and the “chrons” of all nine candidates would not be transmitted to Applicant and would not be made part of the record, as their potential probative value was outweighed by the privacy interests of the candidates. - Took account of the lack of objective evidence in the record regarding the qualifications of the candidates, particularly documentation forming the basis for initial screening by HR staff, when deciding to require production of the official Fund CVs. - Communicated to Applicant the Fund’s statement that it does not compile information as to the race of the candidates. - Applicant submitted observations on the documentation on May 1, 2007; the Fund filed its response on May 11, 2007. ### Request for oral proceedings and Tribunal decision - Applicant requested oral proceedings pursuant to Rule VII, para. 2(i) and Rule XIII, para. 1 on the ground that only two of the nine members of the Review Committee had testified during the Grievance Committee’s proceedings. - Respondent maintained that the written record was adequate and additional oral proceedings were unnecessary. - The Tribunal considered Rule XIII, para. 1 and the available record, noting: - The Tribunal had the transcript of the full evidentiary hearing before the Fund’s Grievance Committee, at which the HRD staff member who conducted the initial screening, all four members of the Selection Panel, the Review Committee member who conducted the “due diligence” inquiry, and the HRD Director who served both as Head of the hiring Department and Chairperson of the Review Committee testified. - The Tribunal is authorized to weigh the Grievance Committee record as an element of evidence. - Decision: The Tribunal decided not to hold oral proceedings. ### Factual background — overview and chronology - Applicant’s employment history: - Began employment with the Fund in 1993 as a Human Resources Officer in the Compensation Policy division of the Administration Department. - Promoted in 1995 to Senior Human Resources Officer. - In 2001 became a Senior Human Resources Officer in the Recruitment and Staffing Division (“RSD”) of HRD. - Was serving in RSD in September 2004 when the vacancy was posted for RSD Deputy Division Chief, Grade A14. - Vacancy and application: - Applicant, along with eight other Fund staff members, applied for the vacancy (total applicants: nine). ### Governing rules for the selection process - The selection process was governed by: - Staff Bulletin No. 03/27 (Senior Promotions and Appointments in the Fund) (December 19, 2003). - Career Opportunities: Policy and Guidelines (January 1, 2003, revised on July 27, 2004). - Staff Bulletin No. 03/27 describes steps for selection of a Grade A14 Deputy Division Chief in the specialized career streams as: - Position advertised; - HRD screens all applications and forwards applications of qualified candidates to department for consideration; - Department interviews candidates and shortlists the three most qualified candidates; - RC [Review Committee] assesses shortlisted candidates, selects candidate, and makes recommendation to management; - Management makes final decision. *Administrative Tribunal of the International Monetary Fund — Introduction (j2007-3).* ### 18. It is not disputed that in filling the contested vacancy the Fund proceeded according to ### j2007-3 - 18. It is not disputed that in filling the contested vacancy the Fund proceeded according to ### Overview of the selection process - The Fund followed the essential steps set out in the applicable Staff Bulletin. - All nine candidates were sent forward for consideration by a Selection Panel after initial screening by RSD and confirmation by the Senior Personnel Manager (“SPM”) of the hiring Department HRD. - The Selection Panel administered a “selection process,” consisting of a written test and Panel interviews. - The Selection Panel “shortlisted” the three candidates who ranked highest as a result of this process. - Shortlisted candidates were interviewed by the HRD Director in his capacity as Head of the hiring Department; he endorsed the Selection Panel’s ranking. - The Review Committee reviewed the assessment and recommended to management the candidate who had received the highest ranking by the hiring Department. - The selection of the appointee was announced to members of the Recruitment of Staffing Division on December 15, 2004. ### Job Standard and Vacancy Announcement - Two documents served as the basis for assessing candidate qualifications: - The “Job Standard” for a Grade A14 Deputy Division Chief in the Human Resources job ladder. - The “Vacancy Announcement” specifying requirements for the Deputy Division Chief of the Recruitment and Staffing Division. - Job Standard excerpts: - Title: “Deputy Division Chief (HR)” - Typical duties and responsibilities include: assuming Acting Chief role; assisting Division Chief in supervising, assessing, developing and training staff; planning, organizing and monitoring division programs; ensuring proper organization and management of the division’s EDP facilities; overseeing implementation of major HR policy changes approved by the Executive Board and/or management; taking lead role in development of major HR policies; responding to technical and factual questions of Executive Directors on Board papers within area of expertise. - Minimum Qualifications: “For Grade A14, educational development, typically acquired by the completion of a relevant advanced university degree, supplemented by a minimum of 11 years of relevant progressively responsible work experience, is required. Alternatively, a university degree and seventeen years of professional HR experience is required.” - Critical Competencies (selected): HR proficiency; Work management; Relationship building; Business understanding. - Vacancy Announcement (selected): - Duties and Responsibilities: refers to Job Standard; assists Division Chief in formulation and implementation of recruitment and staffing policies; assumes acting chief role; primary responsibility for managing recruitment programs and supervising associated staff; lead role in drafting Board papers and providing periodic analyses and progress reports on diversity recruitment; implementing best practices and efficient use of technology; dealing effectively with staff at all levels and external contacts; participation in Fund-wide committees and working groups. - Qualifications defined as “competencies [that] are critical to the position,” including HR delivery: strategic vision; recruitment strategy and techniques; internal mobility programs; analytical skills; change agent; Relationship building; Communications skills; Business understanding; Work management; Other managerial skills; “Should have potential for advancement to Grade B-level positions.” ### Initial screening of applications by RSD - An HR Assistant in the Recruitment and Staffing Division performed the initial screening of the nine applications received in response to the Vacancy Announcement. - RSD screening focused on: - (i) applications for the vacancy, (ii) “chrons,” and (iii) official Fund CVs to ascertain whether candidates met the “minimum qualifications” identified in the Job Standard and referenced in the Vacancy Announcement (education and experience). - The HR Assistant did not assess “critical competencies” during initial screening, considering that outside RSD screening scope. - RSD practice confirmed by subsequent staff: screens applications on the basis of the education and experience requirements. - HR Assistant testimony describing role: “I need to make sure that they’re meeting certain minimum standards and it almost becomes very basic. Do they have an advanced degree, do they have significant years of experience, work experience, and is it related experience? If that test is being met at a minimum, then my feeling was that I’d leave it to the hiring Department to decide whether or not they wished to consider the applicant.” - Subjectivity in screening: the HR Assistant noted a “subjective” element to determining “relevant progressively responsible work experience,” including partial crediting of managerial experience and interpretation of “authoritative knowledge in assigned areas.” - The HR Assistant concluded that all nine applicants met the requisite “minimum qualifications.” He noted two shortlisted candidates (including the appointee) did not have Fund recruitment experience but had recruitment experience in prior employment. - The HR Assistant queried whether an economist applicant met the “minimum qualifications”; the RSD Division Chief and HRD Front Office affirmed that an economist could be considered, given practice and substitution of extensive relevant experience under Fund guidelines. ### Assessment of candidates by the hiring Department (HRD) - The HRD Senior Personnel Manager (SPM) was responsible for confirming the HR Assistant’s screening and reviewed applications against both “minimum qualifications” and “critical competencies.” - SPM approach: “I took a rough cut at the number of years of experience, looked at how much recruitment and other HR experience they had, came to the conclusion that rather than try to short list ... the five or six who seemed to be the strongest, to go ahead and actually interview them all, including, I should add, the economist staff member who did not meet the qualifications as described.” - SPM determinations for the three shortlisted candidates: - Appointee: about 12 years of relevant experience and had recruitment experience that pre-dated her Fund employment. - Second shortlisted candidate: “between 10-1/2 and 11-1/2 years of HR experience”; some recruitment experience in prior Fund experience and earlier professional HR experience; had been in a support-level entry but had two master’s degrees in human resource management; had some managerial experience but “would need some additional seasoning” to manage large numbers of staff. - Third shortlisted candidate: 10.7 years of relevant experience and had recruitment and related policy experience prior to joining the Fund. - SPM concluded all eight HR professionals met the “minimum qualifications”; economist candidate did not strictly meet qualifications but was included based on precedent and business knowledge. - SPM confirmed inclusion of all nine candidates with Selection Panel members. ### Selection Panel composition and evaluation methods - Selection Panel comprised of: - SPM (HRD) - RSD Division Chief - Chief of another HRD Division - HRD Business Advisor - Panel rationale: constituted with a “broad perspective ... meant to underscore that we’re not just recruiting for a division, but ... more on a department-wide basis.” - Panel evaluation focused on “critical competencies” from the Vacancy Announcement; candidates were not required to possess all stated competencies. - The “selection process” components and weighting: - Written test and Panel interviews, to be weighed equally in the overall score. - Written test questions (designed to assess recruitment-related knowledge), presented verbatim: 1. “The Fund is mandated to hire the best qualified staff from as broad a geographical basis as possible. How would you formulate a recruitment strategy and take this mandate into account? How should the selection process be structured to avoid cultural bias in assessing candidates’ capabilities? 2. What would be the advantages and the drawbacks of introducing e-recruitment in the Fund? And what recommendation would you formulate?” - Written test scoring: answers were “blindly” scored; results were not matched with candidates’ names until after the interview process; each Panel member rated answers independently. - Panel interview assessment categories (as reflected in the interview questionnaire): “motivation; strategic vision, judgment and analytical skills; client relations; adaptability and sensitivity to diversity issues; managing conflict or differences of opinion; balancing roles; coaching and giving feedback; open communication, sharing information; organizational skills; delegation; and translating initiatives or mandates into deliverables.” - Interview conduct: with minor exception, each candidate was asked the same questions by the same Panel members in the same order; not all questions were asked in each interview but some were asked from each category; interview ratings were made independently by each Panel member. - Emphasis among qualifications: - “Strategic vision” was considered particularly important and had to be “based on a broad-based HR knowledge.” - Broad HR proficiency, analytical and written communication skills (including Board paper production), and potential for advancement to Division Chief or B-level positions were also emphasized. ### Key factual figures and dates - Number of candidates initially screened and forwarded: nine. - Number of shortlisted candidates: three. - Date selection announced to Recruitment of Staffing Division: December 15, 2004. - Grade level in Job Standard: Grade A14. - Minimum experience under Job Standard: “a minimum of 11 years” (with advanced degree) or “seventeen years” (with university degree). - Appointee’s relevant experience: about 12 years. - Second shortlisted candidate’s HR experience: “between 10-1/2 and 11-1/2 years.” - Third shortlisted candidate’s relevant experience: 10.7 years. *Source: International Monetary Fund (IMF) material (j2007-3).* ### 39. Several Panel members testified that managerial skills were very important to the ### j2007-3 - 39. Several Panel members testified that managerial skills were very important to the position. ### Importance of managerial skills - Several Panel members testified managerial skills were very important to the position. - The Business Advisor: position entailed managing about half of the total number of RSD staff, and, on occasion, acting as Division Chief. - The Business Advisor testified all shortlisted candidates had managerial skills and elaborated: - “... two of the top three candidates had been in section chief roles here in HRD and had demonstrated their managerial skills. - The third one of that top three had not had formal managerial ... experience, rather – had not been a section chief or a team leader in the Fund, certainly, and so that did in fact affect that person’s ranking in the top three.” - Other Panel members noted the somewhat limited managerial experience of one candidate who was shortlisted but ultimately not selected. ### Role of recruitment knowledge and adaptability - All Panel members agreed knowledge and experience in recruitment were taken into account but were secondary because the position did not entail frequent participation in recruitment. - SPM testified the division chief and deputy division chief roles require: - ability to adapt, - ability to bring strategic vision and analysis, - ability to manage the division, - ability to move and take over other divisions. - SPM on acquiring specialized recruitment knowledge: - If not already possessed, such knowledge “has to pick up ... over a reasonable period of time.” - “Well, the way we’ve interpreted this and the way we’ve practiced it is of actually picking it up on the job.” - Emphasis placed on the broad range of HR skills rather than very specific technical knowledge. - SPM testified all shortlisted candidates did have knowledge and experience in recruitment. ### Interview and written test content probing recruitment and technical skills - All four Panel members testified that the written test and interviews probed candidates’ recruitment knowledge. - RSD Division Chief cited two specific recruitment/technical questions used in interviews: - “The MD [Managing Director] presented the objectives of the employment, compensation and benefits review. In your view, what elements should the consultant firm consider to define an employment framework that would meet the institution’s evolving staffing needs? - At present starting salary and grade calculation is based exclusively on factual data and quantitative factors such as educational background and years of relevant experience. What would be the pros and cons of introducing a qualitative appreciation of candidates’ work experience in the salary and grade determination process?” - Opening question enabling discussion of recruitment background: - “What motivated your application for this position? How does it fit in your career plan? How has your work so far (inside the Fund and outside) prepared you to take on this job?” - SPM also asked (not in questionnaire) divisional-insider/outsider pros-and-cons question to create a “level playing field.” ### Eligibility inquiries and verification of minimum qualifications - During interviews, the Selection Panel learned some RSD staff questioned candidate eligibility, specifically “years of relevant experience, particularly taking into account ... whether their experience was gained before or after graduate training.” - Interview process was interrupted to solicit a second opinion from the Compensation Division on whether all candidates satisfied the “minimum qualifications.” - Business Advisor: “this question arose just after the first two interviews were conducted and we took a break in the process and checked with the Compensation Division on all of the candidates’ qualifications for this vacancy. .... [W]e decided, given the sensitivity of this position, to consult with an independent group outside of Recruitment, in Compensation, to get a second opinion.” - At conclusion of selection process, RSD Division Chief testified the Selection Panel again verified shortlisted candidates met the “minimum qualifications.” - In contrast, another Panel member testified he was not called upon to check candidates’ “minimum qualifications,” such as years of experience. ### Shortlisting, ranking, and characteristics of shortlisted candidates - Selection Panel members testified the same three candidates received the highest ratings independently on both the blindly scored written test and the interviews, with some deviation in order. - Panel emphasized a distinct gap in scores between the top three and the others; SPM: he had “rarely seen such a degree of unanimity.” - The Selection Panel shortlisted the top three candidates. - All shortlisted candidates were females and nationals of countries underrepresented within the Fund. - Applicant and five other lower-ranked candidates were eliminated; Applicant’s ranking did not qualify him for the shortlist. - Panel members cited reasons shortlisted candidates stood out: - stronger analytical skills, - strategic thinking, - innovativeness (including experience outside the Fund), - broad HR knowledge gained inside and outside the Fund. ### HRD Director assessment and selection endorsement - Applicant’s notes indicate Mr. D’Aoust was informed on November 8, 2004 he had not been shortlisted; he met the HRD Director on November 12, 2004. - HRD Director in memorandum of December 6, 2004 defended the selection, stating shortlisting was based on “... information gained during the selection process on the qualifications for the position, not on gender or nationality grounds.” - HRD Director interviewed the three shortlisted candidates without knowing their rankings and identified as strongest the same candidate top-ranked by the Selection Panel. - HRD Director did not assess “minimum qualifications,” focusing instead on analytical and strategic skills and concluded all three candidates had such skills. - HRD Director emphasized importance of strategic and analytical skills to develop a more analytical approach to recruitment and retention, including salary competitiveness and diversity recruitment, under a mandate from Fund Management. ### Review Committee (“RC”) due diligence and endorsement - Shortlist, endorsed by HRD Director, was submitted to the Review Committee comprised of the Director of HRD (Chairperson) and eight members at Grade B4 appointed by the Managing Director to advise on suitability for Grade A14 – B2 positions. - One Review Committee member conducted due diligence; he was provided a memorandum outlining the selection process, rankings, rationale, list of nine candidates, “chrons,” merit increases, and performance ratings; he could not recall whether CVs and APRs were provided for all candidates or only shortlisted ones. - Review Committee assessed shortlisted candidates against Vacancy Announcement and Job Standard. - Due diligence focused on: - depth and breadth of experience, - nature of work inside and outside the Fund, - relevance of educational qualifications or broader HR work, - supervisory experience (substantial focus), - skills as managers (task and people management). - The member interviewed supervisors, peers, subordinates, and top-ranked candidate; subordinate assessments were very positive. - He concluded all three shortlisted candidates were qualified and presented findings to the Review Committee, which endorsed HRD’s top-ranked candidate, leading to her selection as RSD Deputy Division Chief. - Applicant states HRD Director announced selection to the Division on December 15, 2004. ### Administrative review, Grievance Committee, and Tribunal filing - Applicant requested administrative review under General Administrative Order No. 31 on December 6, 2004; HRD Director responded December 10, 2004 requesting specificity. - Applicant clarified challenge: decision “to interview and shortlist three candidates who do not meet the minimum qualification requirements for the Vacancy....” - SPM of HRD replied December 30, 2004 that because the decision to shortlist was taken by the Director of HRD, it was not subject to administrative review and Applicant could file a Grievance with the Grievance Committee. - Applicant filed Grievance on January 3, 2005. - Grievance Committee Recommendation and Report dated August 29, 2005 recommended denial of Applicant’s Grievance: Applicant had not shown the decision was arbitrary, capricious, discriminatory, or procedurally defective in a way that substantially affected its outcome. - Deputy Managing Director notified Applicant on September 27, 2005 that Fund management accepted the Committee’s recommendation. - Applicant filed his Application with the Administrative Tribunal on December 19, 2005. ### Applicant’s principal contentions (summarized) - Applicant argued procedural breach in selection could constitute “adverse effect” under Article II, Section 1 of the Tribunal’s Statute. - Contended shortlisting and selection were arbitrary, capricious, discriminatory, and based on erroneous assessment of admissible information. - Argued recognition as “eligible” of the three shortlisted candidates breached rules because they did not meet stated position requirements. - Asserted HRD failed to assess qualifications properly on written records; candidate must meet all requirements to be qualified. - Claimed interview questionnaire failed to adequately assess recruitment and supervisory knowledge and experience; selection panel’s discretion should not undermine objectivity. - Argued Review Committee’s due diligence was incomplete and assessment contradicted facts. - Alleged HRD withheld relevant information; shortlisted candidates were the three most junior in grade and seniority, the three youngest, and the three with the least work experience. - Claimed improper use of APRs in selection process. - Alleged selection considered “diversity profiles,” resulting in impermissible discrimination on grounds of gender, race, nationality, and age; asserted HRD orchestrated selection to favor three female candidates of underrepresented nationalities. *Source: Testimony, memoranda, and administrative records concerning the selection process for RSD Deputy Division Chief, International Monetary Fund.* ### 10. The HRD Director exhibited bias by failing to assess adequately the shortlisted ### 10. The HRD Director exhibited bias by failing to assess adequately the shortlisted candidates’ qualifications and by withholding from the Review Committee information concerning Applicant’s intention to file a Grievance ### Applicant’s allegations and relief sought - Alleged defects and improper motives: - The HRD Director failed to assess adequately the shortlisted candidates’ qualifications and withheld from the Review Committee information concerning Applicant’s intention to file a Grievance (paras. 10–13). - The Review Committee fosters diversity in promotions through quotas and “reverse discrimination,” contrary to Fund rules and the principle of non-discrimination (para. 11). - The selection process was designed to favor younger candidates by discounting functional and managerial knowledge and experience; the HRD Director showed bias in favor of younger candidates (para. 12). - Applicant was subjected to retaliation for pursuing his complaint; the HRD Director abused his authority by threatening Applicant with disciplinary action; the Fund breached its duty of care and failed to act in good faith in responding to Applicant’s complaint (para. 13). - The Tribunal may consider the treatment of an applicant in connection with Grievance proceedings, and where such treatment is deficient, award damages (para. 14). - Relief sought by Applicant (para. 15): - rescission of the appointment of the RSD Deputy Division Chief position; - re-advertising of the vacancy (or, in lieu thereof, additional monetary damages); - damages for moral injury, including humiliation and injury to professional reputation, career prospects and health and well-being, in the amount of $100,000; - punitive damages; - legal costs. ### Respondent’s principal contentions (summary of Answer, Rejoinder, and Response) (para. 61; numbered points) - Standing and scope of challenge: - Applicant may challenge only his own non-selection for the position as the only “administrative act adversely affecting him” within Article II, Section 1 of the Tribunal’s Statute (point 1). - Validity of initial screening and shortlisting: - All shortlisted candidates met the “minimum qualifications”; no procedural defect in accepting their applications at the initial vetting stage (point 2). - Inclusion of an economist candidate had an operational basis as relevant work experience for the RSD Deputy Division Chief post; Applicant was not harmed by interviewing all candidates (point 2). - Assessment and weighting of competencies: - The Selection Panel properly assessed competencies and had discretion to determine weighting of various “critical competencies” in the Vacancy Announcement; recruitment experience was not necessarily the foremost required competency (point 3). - The process tested technical skills, including recruitment skills (through the written examination), and managerial skills (through structured interviews); interview questions permitted candidates to convey technical expertise (point 4). - All three shortlisted candidates had recruitment experience in prior employment; top-ranked candidates stood out for demonstrated analytical skills and aptitude for strategic thinking; consistency of top three rankings and endorsement by HRD Director and Review Committee supports that the best-suited candidates were chosen (point 5). - Use of APRs and diversity considerations: - APRs could be used to separate close candidates but were not used in creating the shortlist in this appointment (point 6). - Claims of discrimination against non-“diversity candidates” are baseless; selection was partially blind-rated and inclusive; Selection Panel members denied taking diversity into account in rankings (point 7). - The top-ranked candidate’s status as a woman from an underrepresented country does not create a presumption that diversity was the basis for selection (point 8). - Handling of Applicant’s complaint and Grievance process: - HRD Director appropriately did not inform the Review Committee of Applicant’s intention to file a Grievance as it was not relevant and should not have influenced impartial review; HRD Director’s warning about confidential information use was legitimate (point 9). - Claims against the Grievance process are not properly before the Tribunal; Applicant did not establish prejudice from the Grievance Committee’s application of the existing standard of review (point 10). - Damages and remedies: - The Tribunal is not empowered to award punitive damages; Applicant failed to substantiate other claims for damages; claim for damages due to alleged injury to health should be disregarded for failure to exhaust administrative remedies (point 11). ### Tribunal’s consideration of admissibility and standing (paras. 62–69) - Statutory framework: - Article II, Section 1 of the Tribunal’s Statute limits Tribunal jurisdiction to applications by staff challenging the legality of an administrative act adversely affecting them (para. 63; Article II quoted). - Standing determination: - The Tribunal concludes Applicant was “adversely affected” by the appointment decision and thereby has standing to challenge elements of the process that resulted in the appointment to the RSD Deputy Chief position for which he was unsuccessful (paras. 64–69). - The Tribunal accepts that the initial screening that allowed nine applicants to advance to the Selection Panel phase was challengeable because screening decisions were a necessary condition for selection and thus had “some present effect” on Applicant’s position (para. 66). - Precedent from IMFAT and other international administrative tribunals supports that applicants have standing to challenge procedural deficiencies in selection processes even if they do not assert they were the best candidate (paras. 65, 68). ### Legal standard for review and scope of judicial deference (paras. 70–73) - Nature of Applicant’s claims: - Applicant alleges both procedural and substantive defects: that assessment of shortlisted candidates disregarded published requirements and applicable procedural rules; selection was based on errors of fact and improper motives including discrimination by gender, race, nationality, and age (para. 70). - Standard of review for managerial discretion: - 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 (para. 71; quoted statutory commentary). - Selection decisions that involve weighing candidates’ suitability are primarily managerial; the Tribunal will not substitute its judgment for managers’ considered determinations made in absence of improper motive (para. 72). - The Tribunal will intervene only for “fatal flaw[s]” such as breach of form or procedure, mistake of law or fact, overlooked material fact, abuse of authority, or a clearly wrong conclusion from evidence; review exercised with special caution so as not to substitute the Tribunal’s assessment of merit for the organization’s (para. 73; quoted ILOAT and other tribunal principles). ### Issues the Tribunal must decide going forward (implicit from text) - Whether procedural defects occurred in: - initial screening of applicants and criteria applied to determine eligibility for the Selection Panel (paras. 66, 70); - assessment of shortlisted candidates’ qualifications in disregard of Vacancy Announcement and Job Standard (para. 70). - Whether the selection process was improperly motivated by discrimination (gender, race, nationality, age) or by bias favoring younger candidates and diversity quotas (paras. 11, 12, 70). - Whether the HRD Director’s conduct in withholding information about Applicant’s intent to file a Grievance and threatening disciplinary action constituted abuse of authority, retaliation, or breach of duty of care (paras. 10, 13, 69). - Whether remedies sought (rescission, re-advertising, $100,000 for moral injury, punitive damages, legal costs) are available and substantiated under applicable law and Tribunal powers (para. 15; Respondent’s point 11). *Source: International Monetary Fund Administrative Tribunal judgment material summarized from the event and Tribunal deliberations in IMFAT proceedings as set out in the cited paragraphs.* ### 74. At the same time, the respondent organization is bound to observe the vacancy ### j2007-3 - 74. At the same time, the respondent organization is bound to observe the vacancy ### Governing rules and procedural framework - Selection of candidates to fill senior positions announced via the Career Opportunities vacancy list is governed by: - Staff Bulletin No. 03/27 (Senior Promotions and Appointments in the Fund) (December 19, 2003). - Career Opportunities: Policy and Guidelines (January 1, 2003, revised on July 27, 2004). - Applicant’s challenges addressed in stages: - (1) initial screening of applications for eligibility; - (2) assessment of suitability and shortlisting of the three top-ranked candidates by the Selection Panel and subsequent endorsement by the Department Head; - (3) assessment and recommendation by the Review Committee. - Conflict-of-rights issue to be considered thereafter: whether filling the vacancy was improperly motivated by impermissible discrimination on the basis of gender, race, nationality or age. ### Initial screening: standards and practice - Fund internal law and policies emphasize initial screening is to assess “eligibility” for Grade A14 Deputy Division Chief vacancies: - Staff Bulletin No. 03/27, p. 7: “HRD screens candidates for promotion or appointment to senior positions to ensure that candidates meet the relevant eligibility criteria.” - Career Opportunities: Policy and Guidelines, p. 6: “RSD sends the hiring Department only the applications of eligible candidates (those who meet the requirements for the position, including those who would be eligible for underfilling and, in case of interdepartmental mobility, those who have occupied their present jobs for the minimum required time). RSD will notify ineligible candidates that their application has not been forwarded and the reasons for this decision.” (Emphasis supplied.) - Job Standard “Minimum Qualifications” for Grade A14 as stated in evidence: - “For Grade A14, educational development, typically acquired by the completion of a relevant advanced university degree, supplemented by a minimum of 11 years of relevant progressively responsible work experience, is required. Alternatively, a university degree and seventeen years of professional HR experience is required.” - “Underfilling” policy: - A staff member is appointed at a grade lower than the minimum entry grade when the candidate does not fully meet the requirements but is expected to meet them within 12 months from the date of the decision. - It is undisputed that ten years of relevant experience would make a candidate eligible pursuant to the “underfilling” policy. ### Roles, discretion, and the inclusive screening approach - Initial screening was performed by an HR Assistant whose role was limited to assessing “minimum qualifications” based on applications, official Fund CVs, and “chrons.” - Confirmation of eligibility was performed by the Senior Personnel Manager (SPM) of HRD, who reviewed the HR Assistant’s screening against “minimum qualifications” and also “critical competencies,” and consulted members of the Selection Panel. - Testimony and practice: - HR Assistant acknowledged a “subjective” element in quantifying years of “relevant progressively responsible work experience” and that he looked to various “competencies” in exercising discretion. - SPM testified that he “would obviously look at [critical competencies]” when reviewing screening decisions and took a “rough cut at the number of years of experience.” - SPM described HRD’s tendency to be inclusive at screening: “I wouldn’t be too hung up on this first screening because ... it’s interpreted in different ways, different practices in different departments. I think we just choose to take a more liberal approach....” - SPM and other HRD officials emphasized the importance of “broad HR proficiency” and assessed “relevant” experience to include both broader HR experience and recruitment experience (including pre-Fund experience). ### Applicant’s objections and Respondent’s position - Applicant contends: - Three shortlisted candidates (and three others) should have been found ineligible at initial screening because they failed several requirements in the Vacancy Announcement and Job Standard. - “Critical competencies” were “indispensable” and should have been assessed at screening; any candidate lacking them should have been screened out. - Hiring Department, HRD, SPM, Selection Panel and Director failed to properly assess qualifications on written records. - Respondent counters: - Confusion between prerequisites for eligibility and “critical competencies” that are assessed later. - The more complex assessment of whether candidates possess various “critical competencies” should be carried out by the Selection Panel through more in-depth phases. - The three shortlisted candidates met the “minimum qualifications” and there was no procedural defect in accepting their applications as eligible. ### Evidence on candidates’ experience and tribunal’s analysis - SPM’s factual assessments: - Determined the ultimately selected candidate had about 12 years of relevant experience, including recruitment experience pre-dating her Fund employment. - Determined the other two shortlisted candidates had sufficient HR experience considering pre-Fund as well as Fund history. - Tribunal findings and reasoning: - The initial screening responsibility placed with an HR Assistant (a junior officer) suggests eligibility screening does not involve a sophisticated assessment of qualifications. - The Fund’s regulation: “[n]one of the candidates for the position will be informed of their standing prior to the RC meeting, except for those who do not meet the advertised position’s minimum requirements and who are not interviewed.” (Staff Bulletin No. 03/27, p. 1.) (Emphasis supplied.) - Tribunal reviewed official Fund CVs of all nine candidates and considered testimony and documentary evidence. - Tribunal concluded the Fund did not abuse its discretion in determining that the three shortlisted candidates met the “minimum qualifications” and were eligible to advance. - Tribunal noted Applicant did not contend the ultimately appointed individual failed to meet the “minimum qualifications” of educational attainments and years of relevant work experience; Applicant’s objections related to the breadth of HR experience required by the position, an issue reserved for later stages of assessment. ### Precedent and limits on discretion - Other international administrative tribunals recognize an organization must reject any candidate who does not satisfy essential requirements stipulated in the vacancy notice; examples cited include: - Pinto, Considerations 10 and 11 (appointment set aside where appointee lacked required degree and experience). - In re Vianney, ILOAT Judgment No. 1158 (1992), Consideration 9 (failure to abide by language-fluency requirement). - Perea v. International Finance Corporation, WBAT Decision No. 326 (2004), para. 74 (material inconsistency between advertised criteria and basis for manager’s decision). - Tribunal’s application: - While recognizing those limits, Tribunal concluded the Fund’s inclusive screening and reliance on subsequent selection-panel assessment did not exceed permissible discretion in the circumstances presented. ### Transition to Selection Panel assessment - Having concluded the Fund did not abuse its discretion in initial screening, the Tribunal proceeds to evaluate whether the Selection Panel abused its discretion in assessing suitability and shortlisting the three highest-ranked candidates. - Distinction reiterated: - Eligibility screening focused on “minimum qualifications.” - Selection Panel evaluation entailed assessing candidates’ suitability in light of the “qualifications” (also referred to as “critical competencies”) set out in the Vacancy Announcement. *Source: Grievance Committee / Tribunal proceedings and Fund documentation concerning the RSD Deputy Division Chief vacancy and the application of Staff Bulletin No. 03/27 and Career Opportunities: Policy and Guidelines.* ### 97. Staff Bulletin No. 03/27 provides that in selecting a candidate for a Deputy Division ### Selection process for RSD Deputy Division Chief (Grade A14) ### Governing rules and selection instruments - Staff Bulletin No. 03/27 provides that in selecting a candidate for a Deputy Division Chief position at Grade A14 within the specialized (non-economist) career streams, the “[d]epartment interviews candidates and shortlists the three most qualified candidates.” (Staff Bulletin No. 03/27, p. 13; see also Annex I.) - Career Opportunities: Policy and Guidelines, p. 7: “All internal candidates who meet the position requirements should be interviewed. However, if the list of eligible candidates is long, the Department shortlists and interviews the candidates with the best match of credentials and experience; Departments may use various methods to shortlist and select (e.g., tests, one-to-one interviews, panel interviews).” - Selection instruments used for the RSD Deputy Division Chief vacancy included a blindly scored written test and Panel interviews designed to test competencies set out in the Job Standard and Vacancy Announcement. ### Applicant’s contentions - The selection process failed to properly assess candidates against Vacancy Announcement and Job Standard requirements; specifically alleged deficiencies among all three shortlisted candidates (including the eventual selectee): - Lack of “broad HR proficiency” - Lack of “specialized knowledge and experience in employment policies, recruitment strategy and techniques” - Lack of “authoritative knowledge in assigned areas” - Lack of ability to “[d]emonstrates ability and skill in managing large numbers of staff” - Allegation that the interview questionnaire “prevented qualified candidates from highlighting their qualifications and experience most pertinent to the position” and “discount[ed] the functional and managerial knowledge and experience of candidates,” effectively disregarding “recruitment and staffing experience, as well as supervisory experience.” - Claim that shortlisting and appointment were “based on erroneous facts, in disregard of essential facts, or [based] on manifestly erroneous assessment of the information to be properly considered and taken in violation of applicable procedures in a manner that affected the outcome.” - Contention that the selection process improperly relied on Annual Performance Reports (APRs). - Contention that the Head of the hiring Department (HRD Director) failed to act impartially and relied on prior interactions rather than an evaluation against position requirements. ### Respondent’s position and Panel practice - Respondent maintains the Selection Panel properly assessed competencies and had discretion to determine relative weight of competencies identified as “critical to the position.” - Position emphasized that the role sought a Deputy Division Chief who could: manage the Division, think strategically, bring new ideas, and potentially advance to more senior positions—not a “recruitment technician.” - Selection Panel tested technical skills (including recruitment skills) through the written examination and managerial skills through structured interviews; candidates could convey technical expertise in interviews. - Panel testimony confirmed differential weighting of advertised qualifications; Panel prioritized a “broad range of HR skills” over “very specific technical knowledge.” - Panel members and the SPM emphasized “strategic vision,” managerial skills, and oral and written communication skills as most important; recruitment experience and RSD-specific experience were taken into account but not deemed primary. - SPM testified intent to create a “level playing field” so candidates from particular divisions would not have undue advantage. ### Tribunal findings on discretion, weighting, and validity of instruments - Tribunal recognizes managerial discretion in assessing and weighing competencies; citations to ILOAT and UNAT precedent support breadth of discretion in appointments and management-skill assessments. - Tribunal finds no abuse of discretion in the Panel assigning different weights to competencies, including less emphasis on recruitment experience relative to “strategic vision.” - Tribunal finds the record does not substantiate Applicant’s claim that the interview questionnaire failed to reflect recruitment or managerial requirements: - At least two interview questions were specific to recruitment and technical skills. - Both written test questions were designed to test recruitment-related knowledge. - Tribunal concludes the selection process tested recruitment competencies through both written test and interview components. - Tribunal accepts Panel testimony that APRs were provided to departments per Staff Bulletin No. 03/27, Annex I, and Career Opportunities application guidance; APRs may be used for screening and as input for promotion decisions. - Panel members testified APRs were available but not discussed in coming up with the shortlist; APRs may be used to break ties or resolve discrepancies but were not relied on here. - Tribunal finds procedural fairness in the Panel’s process: - With few deviations, each candidate was asked the same questions by the same Panel members in the same order. - The same three candidates received the highest ratings by each of the four Panel members independently on both the blindly scored written test and the interviews. - There was a distinct gap between their scores and those of lower-ranked candidates. - Selection Panel verified at conclusion that shortlisted candidates met “minimum qualifications.” - Tribunal concludes no abuse of discretion in the Selection Panel phase for the RSD Deputy Division Chief vacancy and that the Panel’s strategy of emphasizing broad managerial and HR fungibility was tenable given the Vacancy Announcement, Job Standard, and actual responsibilities of the position. ### Findings regarding endorsement by Head of hiring Department - HRD Director testified that direct work experience with shortlisted candidates informed his assessment and that he was particularly impressed by the top-ranked candidate’s analytical abilities, which matched his vision for RSD. - Tribunal finds it was not an abuse of discretion for the Head of the hiring Department to consider firsthand work experience with candidates; such information reasonably informs assessment of suitability. - HRD Director’s independent ranking corroborated the Selection Panel’s results; the Director had not been apprised of the Panel rankings prior to forming his assessment. - Tribunal notes Applicant offered no authority requiring the Head of the hiring Department to independently reassess minimum qualifications after initial screening by RSD and confirmation by Senior Personnel Manager of HRD. ### Tribunal conclusions and policy observation - No abuse of discretion in selection process, weighting of competencies, use of written test and interviews, or in the Head of Department’s endorsement. - Strategy of selecting a candidate with “new ideas,” leadership aptitude, and fungibility did not depart from Vacancy Announcement and Job Standard nor serve as pretext for impermissible discrimination (gender, race, nationality, age). - Tribunal observes that Fund policy on promotions might benefit from taking “full account of the value of the expertise and experience of long‑serving staff by affording it opportunities for advancement.” *The Tribunal decision addressing the RSD Deputy Division Chief selection (paras. 97–117).* ### conclusion of the “selection process.” As the Tribunal has held above, the Fund did not abuse its ### conclusion of the “selection process.” As the Tribunal has held above, the Fund did not abuse its ### Role and responsibilities of the Review Committee - Role: to “review[ ] and advise[ ] the Managing Director on the suitability of proposed candidates.... [including] internal or external candidates for promotion or appointment to managerial positions at Grades A14/15 in all career streams.” - Function: “perform[s] an advisory role to the Managing Director who makes the final decision on every promotion or appointment to a senior position.” (Staff Bulletin No. 03/27, pp. 6-7.) - Procedure: departments provide the RC with “a list of the three most qualified candidates in ranked order, together with detailed explanations for the rankings.” (Staff Bulletin No. 03/27, pp. 1-2.) - RC process excerpt: “The RC will review the background of all shortlisted candidates and come to a view on the department’s proposal for the position. If the RC has questions about the relative strength of the first-ranked candidate vis-à-vis others, the department’s Senior Personnel Manager (SPM) will be called before the RC ... Joint agreement between the RC and the department on a final decision will be actively sought. The RC will advise management on the final decision and seek its approval.” (Emphasis in original.) ### Due diligence and materials reviewed by the Review Committee - Annex III (Staff Bulletin No. 03/27, p. 27) specifies RC reviews: “biographical information, last two APRs, TIG [time-in-grade], Management Development Center (MDC) report, Individual Development Plans (IDP) for those proposed for the RC List or for Grade B1 promotions, SAM [i.e. Subordinate Assessment of Manager], if applicable, and the list of shortlisted candidates and all other applicants.” - RC evaluation areas: (i) analytical and research work; (ii) guiding and influencing policy; (iii) leading missions and project teams; (iv) managing work programs; and (v) guiding staff. RC also evaluates relevant competencies (see Annex VI). - Each RC member “is assigned the responsibility of conducting independent inquiries about candidates ... through discussions with the candidate, current and former supervisors, subordinates, and peers who are familiar with the individual’s work and managerial and leadership abilities.” - Evidence in this case: - HRD provided the shortlist of three candidates ranked in order, with explanations for rankings. - A single RC member was charged with conducting “due diligence,” reviewed “chrons,” CVs, APRs and salary information, interviewed the SPM of HRD, contacted peers and subordinates, and interviewed the top-ranked candidate. - That RC member concluded all three shortlisted candidates were qualified and presented findings to the Review Committee, which subsequently endorsed HRD’s top-ranked candidate leading to her appointment. ### Applicant’s challenges to the Review Committee process and Tribunal’s findings - Applicant’s complaints: - Review Committee failed to conduct full “due diligence” and to assess properly the shortlisted candidates’ qualifications against the position requirements. - HRD breached Fund rules by providing tables of salary increases to the Review Committee. - HRD Director (as Chairperson of the RC) allegedly withheld Applicant’s communicated intention (December 6, 2004) to challenge the Selection Panel’s shortlisting recommendation. - Respondent’s position: - The RC member found all shortlisted candidates qualified and inquired beyond the shortlisted candidates. - The RC member did not rely solely on the SPM’s assessment but contacted peers and subordinates. - The selectee’s demographic attributes were not impermissible considerations; the provision of biographical information and APRs (which include performance ratings and merit-based salary increases) is consistent with Staff Bulletin No. 03/27, Annex III. - Tribunal conclusions regarding the RC: - The Review Committee’s review was thorough and fully consistent with its responsibilities under Fund regulations. - Delegation of inquiries to a single committee member for “due diligence” was consistent with the Committee’s usual practice and not defective in this case. - The RC member’s assessment matched conclusions earlier reached by RSD and the Selection Panel. - The HRD Director was not obliged to inform the RC of Applicant’s intention to file a Grievance; the absence of that information does not vitiate the RC’s thorough assessment. - Applicant’s contentions about the RC are largely derivative of complaints about earlier stages; because those earlier stages did not involve abuse of discretion, the Tribunal could not sustain Applicant’s RC-related claims. ### Allegation of discrimination based on “diversity profiles” and Tribunal’s analysis - Applicant’s claim: the vacancy process improperly took account of candidates’ “diversity profiles,” resulting in impermissible discrimination on grounds of gender, race, nationality, or age. - Three supporting arguments advanced by Applicant: 1. The process itself was defective and pretextual. 2. The outcome (three shortlisted candidates fitting a particular demographic profile) demonstrates discrimination. 3. Fund policies promoting “diversity” provide circumstantial evidence of discriminatory motive. - Tribunal legal framework and precedent cited: - The rule of nondiscrimination imposes substantive limits on discretionary authority (Mr. “R”, IMFAT Judgment No. 2002-1 (March 5, 2002), para. 30; Report of the Executive Board, p. 19). - Distinction between general equal treatment and nondiscrimination implicating “universally accepted principles of human rights” (Ms. “M” and Dr. “M”, Judgment No. 2006-6 (November 29, 2006), para. 124; Mr. “F”, IMFAT Judgment No. 2005-1 (March 18, 2005), para. 81). The latter calls for a “greater degree of scrutiny.” - The instant case is the Tribunal’s first allegation of so-called “reverse discrimination”; Applicant is a white male of Canadian nationality. - Tribunal findings on pretextual process and demographic outcome: - The Tribunal found the process sound and reasonably designed to (a) screen for eligible candidates, (b) test competencies against the Job Standard and Vacancy Announcement, and (c) review qualifications and recommendations under applicable standards. - Having found no procedural irregularity in filling the vacancy, the Tribunal found no merit to the contention that the Fund’s explanation was “merely a pretext for reverse discrimination.” - The Tribunal rejected drawing an inference of discrimination from demographic results alone, citing recent decisions where statistics were held “far from probative of discrimination” (Ms. “T”, IMFAT Judgment No. 2006-6 (June 7, 2006), para. 50; Ms. “Z”, IMFAT Judgment No. 2005-4 (December 30, 2005), para. 74, and cases cited therein). ### Specific points addressed by the Tribunal - Management experience allegation: - Applicant invoked Job Standard language: “[d]emonstrates ability and skill in managing large numbers of staff, including counseling and developing both professional and support-level staff.” - Tribunal noted the Vacancy Announcement did not specify the ability to manage “large numbers” of staff; Applicant showed no defect in the RC’s due diligence on this point. - Information provided to the RC: - Nationality and date of birth appear in “chron” and Fund CV; therefore the RC was apprised of ages and nationalities of shortlisted candidates. - Provision of APRs and other biographical information, which include performance ratings and merit-based salary increases, is consistent with Staff Bulletin No. 03/27, Annex III. *IMF Administrative Tribunal — conclusion of the selection process.* ### 138. Turning first to the claim of age discrimination, the Tribunal addresses Mr. D’Aoust’s ### j2007-3 - 138. Turning first to the claim of age discrimination, the Tribunal addresses Mr. D’Aoust’s ### Age-discrimination claim and Tribunal findings - Applicant’s assertion: the three shortlisted candidates were “the three most junior in grade and seniority, the three youngest, and the three with the least total work experience.” - Applicant links age-discrimination claim to contention that selecting officials “discounted functional and managerial knowledge and experience,” which Applicant argued disadvantaged more senior candidates who “were the ones most likely to have the broadest knowledge and the most considerable experience.” - Tribunal conclusion: - It was within the Fund’s discretion to design a selection process that weights attributes such as “strategic vision” more heavily than specialized knowledge or long-term recruitment experience. - The Fund’s assessment approach therefore “cannot be said to evidence age discrimination.” - Testimony cited by Applicant (HRD Director): - HRD Director: younger candidates “have the skills that I need … younger candidates generally have been ... better trained in qualitative and analytical skills and the kind of strategic approaches and organizational development that I’m looking for.” - Tribunal view: the HRD Director’s statement that being younger “doesn’t make any difference,” while noting younger candidates might be more likely to have particular training, does not establish impermissible bias “unrelated to ... work-related capabilities, qualifications and experience” (Discrimination Policy, July 3, 2003, p. 4). ### Allegation of preferential treatment and promotion practice - Applicant cites the selectee’s rapid rise: at appointment to RSD Deputy Division Chief at Grade A14 the selectee had held a Grade A12 position. - Tribunal findings on promotion rules and selectee’s promotion: - Governing regulations permit promotion “without regard to the TIG [time-in-grade] requirements” if the staff member “meets the specific experience and educational qualifications for the position as set forth in the job standard and the internal advertisement for the position.” (Career Opportunities: Policy and Guidelines, p. 8.) - Staff Bulletin No. 03/27, p. 13, criteria for promotion to Grade A14 Deputy Division Chief in specialized streams: - “Meet specific educational and experience requirements for the position as advertised - Show clear and strong potential for advancement to the B-level - No TIG [time-in-grade] required.” - HRD Director testimony: he “would have preferred that [the appointee] had been an A13 before promoting her to deputy division chief, but I knew she was already performing at the level of an A13,” noting her “substantial outside experience, including managing her own enterprise” and that she had been recruited at a lower level “because of the question of when she got her degree.” - Review Committee member testimony: candidate had “probably been underhired” given outside work and timing of degree; promotions permit “catch-up.” - Decision calculus: Review Committee discussed appointing at A13 or A14 and left final grade to hiring Department; decision that she was qualified and needed “authority” as deputy chief. - Tribunal conclusion: no irregularity or evidence of bias in promotion from Grade A12 to the RSD Deputy Division Chief vacancy at A14. ### Gender and diversity considerations in selection - Applicant notes shortlist comprised three female candidates and alleges preferential treatment. - Selection Panel testimony: - Business Advisor: Panel aware top three were all women; “the best candidates clearly had come out as they did” and members felt the shortlisted candidates “were the ones that could do the job to the best that we expected.” - SPM observation: higher supply of women in human resources profession can lead to more women reaching senior responsibility; historical efforts to recruit more men into HR positions had limited market success. - Each of the four Selection Panel members testified they did not take “diversity” into consideration in deliberations for this position; SPM of HRD stated categorically that “the issue of nationality, gender, race did not come up in any discussions or was not any part of the ... deliberations at all” for the RSD Deputy Division Chief position. ### Fund policies on nondiscrimination and diversity; Tribunal context - Rule N-1 (Fund’s Rules and Regulations), reflecting Article XII, Section 4(d) of Articles of Agreement: - “In appointing the staff the Managing Director shall, subject to the paramount importance of securing the highest standards of efficiency and of technical competence, pay due regard to the importance of recruiting personnel on as wide a geographical basis as possible.” - Adopted as N-2 September 25, 1946, amended June 22, 1979. - Rule 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. - Tribunal emphasis: geographic diversity considerations and diversity-promoting measures are “subject to” securing “the highest standards of efficiency and of technical competence.” Merit-based selection is the paramount principle. ### Discrimination Policy and Enhanced Diversity Action Plan (EDAP) - Management issued two directives in July 2003: - “Discrimination Policy” (July 3, 2003) - “Enhanced Diversity Action Plan” (July 18, 2003) - Discrimination Policy definitions and criteria (Discrimination Policy, July 3, 2003, p. 4): - Discrimination refers to differences in treatment where 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 include “basing decisions that affect the career of an employee—such as salary adjustments, assignments, performance evaluations, promotions, and other types of recognition—on grounds other than professional qualifications or merit.” - EDAP objectives: - Departments are to “develop objectives and measures, both qualitative and quantitative, that will contribute to achieving the Fundwide diversity goals.” (P. 5.) - Use of indicators (not binding targets) to guide recruitment while maintaining staff quality: “Indicators help guide the institution’s recruitment efforts but they are not binding for departments.” (The Role of Diversity in the Fund’s Human Resource Strategy, May 28, 2003, p. 17.) - Quantitative indicators listed (The Role of Diversity in the Fund’s Human Resource Strategy, May 28, 2003, p. 17): - Geographic Indicators: - Africa—8 percent - MED—8 percent - European Transition Economies—8 percent - Developing Countries—40 percent - Gender Indicators: - Women at B level—20 percent - Economists at B level—15-20 percent - Specialized Career Streams at B level—35-40 percent - EDAP qualitative measures: career development, external recruitment, work environment; build “a pipeline of qualified candidates with diverse backgrounds for senior positions” via career planning, mobility, English language training, management training, and oversight by Review and Senior Review Committees. - Noted best practice: use of “blind writing tests for selection” listed in the 2003 Diversity Annual Report as a Departmental Best Practice. ### Applicant’s contention about HRD practices and selection impact - Applicant asserts HRD’s succession planning and Diversity Action Plan led to HRD selecting candidates for senior vacancies “on grounds of diversity,” citing 2004 Diversity Annual Report statistics: representation of women at the B level in HRD “is more than twice that of most other departments, and some 20% above the indicator for specialized career streams.” - Human Resources testimony on diversity-conscious decision-making: - External recruitment: diversity may be considered when selecting among equally qualified candidates; departments may favor a diverse candidate “to rebalance the diversity representation on Fund staff” only if the diverse candidate “scores as well as any other candidate already well represented on Fund staff or overrepresented.” - Internal movement: diversity generally “is never taken in account” for internal staff movement; in this particular case, diversity “was not even mentioned.” - SPM: efforts focus on broadening candidate pools; “if we had two people of equal qualifications, then diversity may play a factor at the officer level.” *Tribunal decision addressing claims of age, gender, and diversity-related discrimination (paras. 138–155).* ### 155. It is important to emphasize that the Tribunal in the case brought by Mr. D’Aoust has not ### j2007-3 - 155. ### Tribunal's central finding on diversity and selection process - The Tribunal was not asked to consider a situation where diversity was used to choose among candidates whose qualifications were deemed substantially equal (para. 155). - All three shortlisted candidates were, on the testing criteria used by the Selection Panel, "discernibly more qualified" than Applicant, who did not emerge as a contender on the shortlist (para. 155). - The Tribunal concluded that, on the facts of this case, and "in light of the soundness of the process itself, including the blind reading of test results," Applicant has not established impermissible discrimination on the basis of gender, race, nationality or age in violation of the Fund’s internal law (para. 161). - The Tribunal found no evidence of pretext or improper motive and was not convinced there was reason to doubt the bona fides of the Fund’s position (para. 161). ### HRD testimony and Fund diversity objectives - The HRD Director testified he sought a systemic approach to promoting diversity objectives and did not "look at diversity as an element of promotion of any one person" (para. 156). - HRD Director quoted: "I think HRD should promote diversity ... But I won’t focus on the diversity of the person ... for the position." (para. 156). - HRD Director described a tension: mandate to recruit "people, staff of the highest quality" while achieving "representation from our membership, broad representation of our membership" and noted many countries are underrepresented; management asks for "new ideas and new approaches" to obtain "candidates of a more diverse nature" (para. 156, quoted). ### Review Committee, Enhanced Diversity Action Plan, and policy statements - Staff Bulletin No. 03/27, p. 7: "The RC [Review Committee] seeks to ensure high quality in promotions and appointments for managerial positions to foster a mix of skills, experience, and diversity. .... In appointing Committee members, consideration is given to diversity in terms of nationality, gender, and career streams, and to proven experience and interest in HR matters, including knowledge of the Fund and its staff...." (para. 158). - Enhanced Diversity Action Plan: "[t]he Review and Senior Review Committees will continue to exercise their oversight function to ensure that qualified candidates from underrepresented groups are not overlooked in the selection process." (para. 158). - Enhanced Diversity Action Plan Progress Report: "The Review Committee considers carefully the background of all three candidates, including diversity, in making a recommendation to management on the most suitable candidate. Committee members, in their due diligence, ensure that strong diversity applicants were given full consideration in the selection process." (para. 158). - The three shortlisted candidates all bore indicia of "diversity," so the Committee's duty to ensure qualified candidates from underrepresented groups were not overlooked did not come into play; a Review Committee member testified he did not compare candidates on that basis and the Tribunal found no ground to doubt that testimony (para. 159). ### Tribunal’s caution on pursuing diversity goals - The Tribunal recognized disquieting indications that management's pursuit of a more diverse staff risks approaching "the line on the other side of which would be clear violation" of Fund law prohibiting discrimination in promotions (para. 162). - The Tribunal cited ILOAT Judgment No. 2004 (2001), Consideration 20: policy aimed at gender parity is acceptable, but "This policy cannot be achieved by setting quotas and by reverse discrimination, in other words, by the appointment – for particular posts – of women who are less qualified than men. This is contrary to Regulation 4.3 ... The bottom line must always be that the person best qualified should be appointed." (para. 162, quoted). - The Tribunal adheres to the ILO Administrative Tribunal position and notes the Fund’s Diversity Advisor reaffirmed that "[p]erformance-based promotions will not be compromised" (IMF Staff News (December 2006), p. 2) (para. 162). - The Tribunal stated that position is required by the terms and intendment of the Fund’s Articles of Agreement (para. 162, referencing paragraph 147). ### Additional claims and specific procedural findings - Alleged retaliation: - Applicant alleged HRD Director improperly threatened disciplinary action and sought to "intimidate and silence" him (para. 164). - HRD Director’s memorandum to Mr. D’Aoust of December 6, 2004 warned against comments and use of information in contravention of the Fund’s Code of Conduct, and stated "Any further use of information on this basis by you in the future will result in disciplinary proceedings." The Tribunal concluded the HRD Director acted in good faith in issuing that warning (para. 165). - The Fund’s Code of Conduct paragraph 11 requires staff to "respect and safeguard the confidentiality of information ... available or known to you by reason of your official functions." Rule N-6 and GAO No. 33 provisions on unauthorized use/disclosure support disciplinary measures (para. 165). - GAO No. 31 protections: staff are protected from reprisal for pursuing grievances; however, Applicant failed to substantiate his charge of retaliation (para. 166). - Administrative review: - Applicant requested administrative review under GAO No. 31 on December 6, 2004; HRD Director requested additional information on December 10, 2004 (para. 167). - Applicant clarified he challenged "the decision of the [selection] panel members ... to interview and shortlist three candidates who do not meet the minimum requirements" (para. 167). - SPM of HRD replied on December 30, 2004 that the decision to shortlist was not subject to administrative review under GAO No. 31 because it had been taken by the HRD Director, and informed Applicant he was free to proceed to the Grievance Committee; Applicant filed his Grievance on January 3, 2005 (para. 167). - The Tribunal found HRD’s request for additional information consistent with GAO No. 31 requirements and found no evidence of bad faith or prejudice from a 20-day lapse (paras. 168–169). - Grievance Committee handling: - Applicant objected to (1) denial of particular document and witness requests, (2) use of the standard of review in GAO No. 31, Rev. 3 (November 1, 1995), and (3) "re-stating" his grievance (para. 170). - The Tribunal held that Grievance Committee decisions on admissibility of evidence and production of documents are not "administrative acts" under Article II of the Tribunal’s Statute and are not subject to the Tribunal’s review; accordingly, Applicant’s complaints in (1) were denied (para. 172). - The Tribunal rejected Applicant’s objection to the standard of review as without merit, noting the Tribunal makes its own independent findings and is not bound by the Committee’s reasoning (para. 173). - Regarding the Committee’s formulation of the issue, the Committee stated the issue as whether the Fund’s decision "not to select Grievant" was arbitrary, capricious, discriminatory, or procedurally defective in a manner that substantially affected the outcome; the Tribunal found no prejudice to Applicant from this formulation (paras. 174–175). - The Tribunal may weigh the record generated by the Grievance Committee as an element of evidence and found no ground to discount that record (para. 176). - Alleged humiliation, injury to health, and professional reputation: - Applicant sought compensation for "moral injury," alleging humiliation, injury to health and well‑being, and harm to professional reputation and career prospects, and for "procedural flaws" (para. 177). - Because the Tribunal found no irregularity in the selection, Applicant’s claims for injury and punitive damages were denied; Applicant did not provide evidence of HRD gross negligence or egregious aggression in pursuing diversity objectives (paras. 178–179). - The Fund requested removal from the record of two "medical reports" submitted by Applicant; the Tribunal did not rely on those disputed documents in reaching its conclusions (para. 178, note). ### Procedural and decisional outcome - The Tribunal affirmed its role is not to act as an appellate body over the Grievance Committee but may consider its record as evidence (paras. 171, 176). - Decision: "The Application of Mr. D’Aoust is denied." (Decision section). - Administrative Tribunal of the International Monetary Fund unanimously decided the Application is denied; signatures include Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Michel Gentot, Associate Judge; Registrar: Celia Goldman (Decision section). - Location and date of decision: Washington, D.C., May 22, 2007 (Decision section). --- _Source: https://www.imf.org/-/media/files/imfat/j2007-3.pdf_