## j2008-1

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### Case overview and judgment
- The Administrative Tribunal of the International Monetary Fund, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges, met on November 16, 2007, to adjudge the case brought against the International Monetary Fund by Mr. Michel D’Aoust. The Judgment was adopted by the Tribunal on January 7, 2008.
- Applicant: Mr. Michel D’Aoust, staff member serving in the Compensation and Benefits Policy Division (“CBD”) of the Human Resources Department (“HRD”).
- Core complaint: HRD senior officials communicated to Applicant at the time of his candidacy for election to the governing board of the Staff Association (the Staff Association Committee or “SAC”) that, if elected, he would be required to transfer to another position within HRD because his job responsibilities and those of an SAC member would pose a conflict of interest.
- Applicant sought:
  - damages for “moral injury” in the amount of $50,000 for alleged breach of his right to association and denial of due process before the Grievance Committee;
  - punitive damages in the amount of $50,000;
  - costs.
- Tribunal decision: The Application of Mr. D’Aoust is denied.

### Procedural history
- Timeline of filings and procedural steps:
  - August 9, 2006: Mr. D’Aoust filed an Application with the Administrative Tribunal.
  - August 10, 2006: Application transmitted to Respondent.
  - August 14, 2006: Registrar circulated a notice summarizing the issues raised in the Application pursuant to Rule IV, para. (f).
  - September 25, 2006: Respondent filed its Answer.
  - September 28, 2006: Applicant filed his Reply.
  - November 2, 2006: Respondent filed a Rejoinder.
  - August 30, 2007: Tribunal issued a request for information from the Fund pursuant to Rule XVII, para. 3.
  - September 10, 2007: Fund responded to the Tribunal’s request.
  - September 26, 2007: Applicant filed a comment on the Fund’s response.
  - The Tribunal decided not to hold oral proceedings.
- Rules and statutory provisions cited: Rule IV, para. (f); Rule XVII, para. 3; Article XII of the Tribunal’s Statute; Rule XIII, para. 1.

### Factual background and chronology
- Employment history:
  - Applicant began employment with the Fund in 1993 as a Human Resources Officer.
  - At the time of the events, Applicant was serving as a Senior Human Resources Officer in the Compensation and Benefits Policy Division of HRD.
- Key events and dates:
  - January 12, 2006: Senior Personnel Manager (“SPM”) of HRD circulated an email to all HRD staff advising that, because they are “engaged in advisory and policy work on staffing and organizational issues and/or have access to privileged knowledge and information in these areas” that “running for election to the SAC is considered a conflict of interest and consequently not permitted for HRD staff.”
  - January 13, 2006: Staff Association Election Committee posted the roster of candidates for the seven-member 2006 Staff Association Committee (“SAC”); Applicant was among the candidates.
  - January 17, 2006: Applicant was called to a meeting with the SPM and the Division Chief; he was advised he would be permitted to stand for election but, if elected, would be transferred to a different position within HRD to avoid a conflict of interest and that he had a “decision to make.”
  - January 25 and 26, 2006: SAC election held; Applicant was not elected to the seven-member board; no transfer or further HRD action was taken with respect to his assignment.
- Administrative review and Grievance process:
  - January 30, 2006: Applicant sought administrative review under GAO No. 31.
  - February 10, 2006: HRD Director denied administrative review; same day Applicant filed a Grievance with the Fund’s Grievance Committee seeking rescission of the January 12 email and compensatory damages for “moral injury.”
  - March 3, 2006: Fund submitted comments requesting dismissal of the Grievance for lack of “adverse impact.”
  - June 6, 2006: Grievance Committee Chairman issued an Order granting the Fund’s “Motion to Dismiss” on the ground Applicant had failed to allege he had been “adversely affected.”

### Parties’ principal contentions
- Applicant’s contentions (summary):
  - HRD’s actions contravened his right to association under Fund Rule N-14, constituted intimidation and harassment, and caused stress and prejudice.
  - He was “adversely affected” because being required to choose between SAC service and CBD responsibilities altered his right to association.
  - HRD’s February 10, 2006 memorandum reflects a regulatory approach affecting CBD staff.
  - Relief sought included $50,000 damages for moral injury, $50,000 punitive damages, and costs.
- Respondent’s contentions (summary):
  - Application should be dismissed on jurisdictional grounds; if admissible, rejected on the merits.
  - Applicant was not “adversely affected” within Article II of the Tribunal’s Statute because he was neither prevented from running nor required to transfer; no “moral consequences” occurred.
  - No “regulatory decision” was applied; HRD’s actions did not infringe his right to association; claims of harassment and intimidation are unfounded; denial of due process before the Grievance Committee is without merit or not properly before the Tribunal.

### Admissibility, “adversely affected” requirement, and standing
- Statutory text (Article II excerpts) controlling jurisdiction:
  - Tribunal competence: “by a member of the staff challenging the legality of an administrative act adversely affecting him; ...”
  - Definitions: “‘administrative act’ ... any individual or regulatory decision taken in the administration of the staff of the Fund;” “‘regulatory decision’ ... any rule concerning the terms and conditions of staff employment, including the General Administrative Orders and the Staff Retirement Plan, but excluding any resolutions adopted by the Board of Governors of the Fund.”
- Tribunal findings:
  - Applicant identified contested acts as the January 12, 2006 email, the Division Chief’s alleged reaction on January 13, 2006, and the January 17, 2006 meeting advising he had a “decision to make.”
  - The Tribunal concluded Mr. D’Aoust had standing: he was “adversely affected” by the January 17, 2006 decision requiring a choice between SAC candidacy and retention of job assignment.
  - The January 12, 2006 email to all HRD staff was also found to have adversely affected Applicant for purposes of alleging intimidation and harassment.
  - Whether a contested measure is an individual or regulatory decision is distinct from whether it constitutes an abuse of discretion on the merits.

### Regulatory decision issue and mootness considerations
- Parties’ positions:
  - Respondent: the HRD practice challenged was ad hoc, unpublished, and did not become HRD policy; thus not a “regulatory decision.”
  - Applicant: relied on Baker I to argue a “regulatory decision” need not have fully realized tangible effects to cause adverse effect; a regulatory decision may have “some present effect.”
- Tribunal observations:
  - Even if the January 17, 2006 decision were a “regulatory decision,” the element of “present effect” no longer obtains because, subsequent to the pleadings, Applicant was on leave and not anticipated to return to active service before separating from the Fund.
  - The Tribunal did not need to determine whether the decision was “regulatory” because it concluded Applicant was “adversely affected” in any event.

### Rule N-14, scope of the right to association, and limits on Tribunal jurisdiction
- Rule N-14 provides: “Persons on the staff of the Fund shall have the right to associate in order to present their views to the Managing Director and the Executive Board, through representatives, on matters pertaining to personnel policies and their conditions of service. Adopted June 22, 1979”
- Tribunal jurisdictional limit: alleged conflicts between contested acts of the Fund and the Staff Association’s Constitution and Bylaws lie outside the Tribunal’s competence because the Staff Association’s constitutive instruments are not part of the Fund’s internal law.
- Tribunal interpretation:
  - Rule N-14 contemplates channeling staff interests “through representatives.”
  - The Fund must “weigh carefully any potential incompatibility between job functions and service as a SAC official so as not to restrict unduly the right to association.”
  - The right to associate imposes a substantive limit on managerial discretion and attracts heightened scrutiny where fundamental rights are implicated.

### Conflict-of-interest measures, discretion, and standard of review
- Facts relevant to conflict risk:
  - Applicant acknowledged his CBD responsibilities involved matters relating to the Employment, Compensation and Benefits Review (“ECBR”) at the time of his candidacy.
  - The Fund asserted CBD had a lead role in policy analysis and development and was heavily involved in ECBR work during the second half of 2005 and first quarter of 2006.
  - Fund view: “Particularly at the time of his candidacy, but also on an ongoing basis, a role or position within CBD, at Mr. D’Aoust’s grade level, could not be identified that would not have posed actual or potential conflicts of [interest].”
- Tribunal conclusions on discretion and reasonableness:
  - It is within the Fund’s discretionary authority to determine on a case-by-case basis the risk of conflict of interest between job functions and SAC service.
  - Discretionary decisions may be overturned if “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.”
  - Where a claim implicates a fundamental human right, a greater degree of scrutiny applies.
  - In Mr. D’Aoust’s case the Fund’s offer (forgo nomination and retain responsibilities, or be transferred at same salary and grade if elected) was found not to be an abuse of discretion and reasonably balanced freedom of association and good administration.

### Harassment and intimidation claims
- Applicant’s allegations:
  - SPM’s January 12, 2006 email and January 13/17 meetings constituted “dictatorial and intimidating” conduct that created a hostile environment causing “grave stress” and prejudiced his candidacy.
- Fund’s position:
  - The January 12 position was “reconsidered” and “modified ... considerably”; no disciplinary action was taken; Applicant’s persistence was characterized as “arguably insubordinate.”
- Policy framework:
  - Fund’s Policy on Harassment (1999), Staff Bulletin 99/15: prohibited “harassment” includes behavior that unreasonably interferes with work or creates an intimidating, hostile, or offensive work environment; “Intimidation” examples include threatening or insulting comments, whether oral or written—including by e-mail.
  - Policy explicitly states supervisors’ difficult decisions about moving people or changing assignments “do not, in themselves, constitute harassment.”
- Tribunal finding:
  - Applicant provided no evidence of the kind required under the Harassment Policy; aside from unsupported assertions of dictatorial conduct, the record did not demonstrate conduct amounting to harassment or intimidation as defined by the Fund’s Policy.
  - The Tribunal concluded Applicant did not suffer moral injury to his right to association by the existence of the January 12 communication up to its revision on January 17, 2006.

### Grievance Committee due process claim and Tribunal procedural stance
- Applicant’s contentions on due process:
  - The Grievance Committee is not authorized to issue an order for summary dismissal; such a decision could not be taken solely by the Chairman; summary dismissal without hearing both parties denied due process.
- Tribunal procedural positions and findings:
  - The Tribunal does not act as an appellate body over the Grievance Committee; the Committee’s recommendations are not “administrative acts” under Article II.
  - The Tribunal may consider the record generated by the Grievance Committee as evidence but generally dismisses direct challenges to the Committee’s procedural acts as within the Committee’s authority under GAO No. 31.
  - GAO No. 31 provides the Committee decides its own jurisdiction; Section 2.02 and Section 7.06.1 contemplate hearings by “the Committee.”
  - The Tribunal declined to pass upon the propriety of the Grievance Committee’s procedural actions in summarily dismissing Mr. D’Aoust’s Grievance and denied the Applicant’s claim that he was not afforded due process by the Grievance Committee.

### Comparative jurisprudence and precedents relied upon
- Cited Tribunal and external precedents include:
  - D’Aoust (No. 2), para. 69 and paras cited on standing and “adversely affected.”
  - IMFAT Judgment No. 2005-3 (Baker I) on “present effect” of regulatory decisions.
  - IMFAT Judgment No. 1996-1 (Mr. M. D’Aoust) and IMFAT Judgment No. 1997-2 (Ms. “B”) on regulatory versus unpublished practices.
  - ILOAT and UNAT authorities (e.g., Robinson, Ishak, Gran Olsen, Di Giuliomaria) on freedom of association and limits on administrative measures affecting staff representatives.
- Tribunal used comparative jurisprudence to:
  - Recognize that freedom of association may limit managerial discretion.
  - Apply heightened scrutiny where fundamental rights are implicated while balancing good administration needs.

### Disposition
- Having found Applicant was “adversely affected” by the January 17, 2006 decision and the January 12, 2006 email for purposes of alleging intimidation and harassment, and having found no abuse of discretion or harassment as defined by the Fund’s Policy, the Administrative Tribunal of the International Monetary Fund unanimously decides:
  - The Application of Mr. D’Aoust is denied.

*Administrative Tribunal of the International Monetary Fund, Judgment signed by Stephen M. Schwebel (President), Nisuke Ando (Associate Judge), Michel Gentot (Associate Judge); Celia Goldman, Registrar; Washington, D.C., January 7, 2008.*

### Introduction

### Introduction

### Case overview and judgment
- The Administrative Tribunal of the International Monetary Fund, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges, met on November 16, 2007, to adjudge the case brought against the International Monetary Fund by Mr. Michel D’Aoust. The Judgment was adopted by the Tribunal on January 7, 2008.
- Applicant: Mr. Michel D’Aoust, a staff member serving in the Compensation and Benefits Policy Division (“CBD”) of the Human Resources Department (“HRD”).
- Core complaint: HRD senior officials communicated to Applicant at the time of his candidacy for election to the governing board of the Staff Association (the Staff Association Committee or “SAC”) that, if elected, he would be required to transfer to another position within HRD because his job responsibilities and those of an SAC member would pose a conflict of interest.
- Applicant contests both an alleged HRD policy and its application to him, alleging violations including:
  - Contravention of his right to association under Fund Rule N-14.
  - Intimidation and harassment in violation of the Fund’s internal law.
  - Denial of due process by the Grievance Committee in summarily dismissing his Grievance at the Fund’s request.

### Procedural history
- Timeline of filings and procedural steps:
  - August 9, 2006: Mr. D’Aoust filed an Application with the Administrative Tribunal.
  - August 10, 2006: Application transmitted to Respondent.
  - August 14, 2006: Registrar circulated a notice summarizing the issues raised in the Application pursuant to Rule IV, para. (f).
  - September 25, 2006: Respondent filed its Answer.
  - September 28, 2006: Applicant filed his Reply.
  - November 2, 2006: Respondent filed a Rejoinder.
  - August 30, 2007: Tribunal issued a request for information from the Fund pursuant to Rule XVII, para. 3.
  - September 10, 2007: Fund responded to the Tribunal’s request.
  - September 26, 2007: Applicant filed a comment on the Fund’s response.
  - The Tribunal decided not to hold oral proceedings.
- Rule citations referenced:
  - Rule IV, para. (f) (Registrar circulation on transmittal of application).
  - Rule XVII, para. 3 (production of documents/request for information).
  - Article XII of the Tribunal’s Statute and Rule XIII, para. 1 regarding oral proceedings.

### Factual background
- Employment history and role:
  - Applicant began employment with the Fund in 1993 as a Human Resources Officer.
  - At the time of the events, Applicant was serving as a Senior Human Resources Officer in the Compensation and Benefits Policy Division of HRD.
- Key events and dates:
  - January 12, 2006: Senior Personnel Manager (“SPM”) of HRD circulated an email to all HRD staff advising that, because they are “engaged in advisory and policy work on staffing and organizational issues and/or have access to privileged knowledge and information in these areas” that “running for election to the SAC is considered a conflict of interest and consequently not permitted for HRD staff.”
  - January 13, 2006: Staff Association Election Committee posted the roster of candidates for the seven-member 2006 Staff Association Committee (“SAC”), and Applicant was among the candidates.
  - January 17, 2006: Applicant was confronted by his Division Chief and called to a meeting with the SPM and the Division Chief; he was advised he would be permitted to stand for election but, if elected, would be transferred to a different position within HRD to avoid a conflict of interest and that he had a “decision to make.”
  - Applicant’s account: viewed the January 12 email and subsequent actions as attempts to dissuade him and as “intimidation,” and stated any unilateral transfer following election would be “unwarranted and retaliatory.”
  - Respondent’s account: HRD reconsidered and “modified” the January 12 position and informed Applicant on January 17 that his functions in CBD involved matters subject to consultation between the SAC and HRD, creating a conflict of interest that would require reassignment if he were elected.
  - January 25 and 26, 2006: SAC election held; Applicant was not elected to the seven-member board; no transfer or further HRD action was taken with respect to his assignment.

### Channels of administrative review and grievance process
- Administrative review and Grievance filings:
  - January 30, 2006: Applicant sought administrative review under GAO No. 31, alleging contravention of right to association, intimidation and harassment, and stress and prejudice.
  - February 10, 2006: HRD Director responded: HRD stood by its position that, had Applicant been elected, his role would have presented a conflict of interest and the department would have been within its rights to transfer him; because he was not elected, “no action by the department was necessary and none was taken”; request for administrative review denied.
  - February 10, 2006 (same day): Applicant filed a Grievance with the Fund’s Grievance Committee seeking:
    - rescission of the January 12, 2006 email and a formal memorandum confirming all staff members’ eligibility for SAC nomination;
    - compensatory damages for “moral injury.”
  - March 3, 2006: Fund submitted comments requesting dismissal of the Grievance on the ground Applicant had not alleged any “adverse impact” to invoke the Grievance Committee’s jurisdiction.
  - June 6, 2006: Grievance Committee Chairman issued an Order granting the Fund’s “Motion to Dismiss,” concluding Applicant had failed to allege that he had been “adversely affected” because “no decision or action was taken that affected his career in any way.”

### Parties’ principal contentions
- Applicant’s principal contentions (summarized):
  1. HRD’s actions contravened his right to association, constituted intimidation and harassment, and caused stress and prejudice.
  2. He was “adversely affected” by HRD’s actions; although not transferred, HRD’s actions had “moral consequences” by altering his right to association.
  3. HRD’s February 10, 2006 memorandum indicates HRD stands by its decision and implicitly affects other CBD staff; the decision is of a “regulatory nature.”
  4. HRD’s actions constituted an abuse of discretion infringing freedom of association.
  5. HRD’s actions amounted to intimidation and harassment, including that the January 12, 2006 email prejudiced his SAC candidacy.
  6. He was not afforded due process before the Grievance Committee.
  7. Relief sought:
     - damages for “moral injury” in the amount of $50,000 for alleged breach of his right to association and denial of due process before the Grievance Committee;
     - punitive damages in the amount of $50,000;
     - costs.
- Respondent’s principal contentions (summarized):
  1. Application should be dismissed on jurisdictional grounds; if admissible, rejected on the merits.
  2. Applicant was not “adversely affected” within Article II of the Tribunal’s Statute because he was neither prevented from running for the SAC nor required to transfer; nor did he suffer any “moral consequences.”
  3. No “regulatory decision” was applied to Applicant by HRD; the Application is not a challenge to a regulatory decision.
  4. HRD’s actions did not infringe his right to association because his CBD functions would have conflicted with concurrent SAC duties.
  5. Claims of “harassment” and “intimidation” are unfounded.
  6. Allegation of denial of due process by the Grievance Committee is not properly before the Tribunal and, in any event, without merit.

### Admissibility analysis and legal standard
- Preliminary question for the Tribunal: identification of the administrative act(s) contested and whether Applicant’s claims are admissible under Article II of the Tribunal’s Statute.
- Applicant identifies the contested acts as:
  - SPM’s January 12, 2006 email to HRD staff;
  - Division Chief’s alleged reaction on January 13, 2006 to announcement of his candidacy;
  - January 17, 2006 meeting at which SPM and Division Chief advised he had a “decision to make.”
- Respondent contends the principal claim is inadmissible because Applicant was not “adversely affected” by an administrative act as required by Article II.
- Applicant’s counter: being presented with a “decision to make” between SAC service and retaining CBD responsibilities adversely affected his right to association; the decision was of a “regulatory nature” with a present effect; it “implicitly” affected other CBD staff.
- Relevant statutory text quoted (Article II excerpts):
  - “The Tribunal shall be competent to pass judgment upon any application:
    a. by a member of the staff challenging the legality of an administrative act adversely affecting him; ...
    For purposes of this Statute:
    a. the expression ‘administrative act’ shall mean any individual or regulatory decision taken in the administration of the staff of the Fund;
    b. the expression ‘regulatory decision’ shall mean any rule concerning the terms and conditions of staff employment, including the General Administrative Orders and the Staff Retirement Plan, but excluding any resolutions adopted by the Board of Governors of the Fund; ...”
- Commentary on the Statute cited: Tribunal competent to hear challenges to “administrative act,” defined to encompass individual and regulatory decisions affecting terms and conditions of employment; to invoke jurisdiction there must be a “decision,” individual or class-wide, identified in the application.
- Tribunal’s prior interpretation of “adversely affected” emphasizes that the requirement ensures the applicant has an actual stake in the controversy and precludes advisory opinions; cited judgments include IMFAT Judgment No. 2002-3, IMFAT Judgment No. 2005-3 (“Baker I”), and IMFAT Judgment No. 2007-3.

*Source: Introduction, IMF Administrative Tribunal case j2008-1*

### 29.      In D’Aoust (No. 2)

### 29.      In D’Aoust (No. 2)

### Background and context
- The Tribunal examined the “adversely affected” requirement in the context of a claim of intangible injury.
- Applicant: Mr. D’Aoust. Contested act: decision communicated January 17, 2006 by HRD management that he would have to choose between standing for election to the Staff Association Committee (SAC) and accepting a transfer of job responsibilities if elected.
- Comparable case law cited:
  - D’Aoust (No. 2): Tribunal held applicant need not show he was the best-suited candidate to be “adversely affected” by appointment decisions. Id., para. 69. Tribunal cited a staff member’s right to have his candidacy fairly considered under internal Fund law and general principles of international administrative law. Id., para. 67.
  - Ms. “G”: Applicant denied expatriate benefits based on visa status; found “adversely affected” where decision rendered staff in her visa status ineligible for a class of employment benefits. Id., para. 82.
  - Baker I (IMFAT Judgment No. 2005-3): Tribunal held applicants could be “adversely affected” by a regulatory decision that had “some present effect” even if tangible effects had not yet been realized. Baker I, paras. 20–22.
  - Mr. M. D’Aoust, IMFAT Judgment No. 1996-1 (April 2, 1996): practice of truncating at ten years the weight given to previous experience was not a “regulatory decision” because it was unpublished practice known to a small number of officials. Para. 35.
  - Ms. “B”, IMFAT Judgment No. 1997-2 (December 23, 1997): contrasted a circulated memorandum as a lawful form for personnel policy with unpublished practices that do not afford reasonable notice. Para. 60; para. 49.

### Tribunal findings on “adversely affected” and standing
- The Tribunal concluded Mr. D’Aoust had standing: he was “adversely affected” by the January 17, 2006 decision that allegedly infringed his right to association by forcing a choice between his job assignment and serving in a representative role with the Staff Association.
- Key legal distinctions and observations:
  - Whether an applicant has been “adversely affected” for admissibility is distinct from whether the challenged decision constitutes an abuse of discretion on the merits. Cites D’Aoust (No. 2), para. 69, and Daseking-Frank et al., para. 87.
  - The analysis of “adversely affected” should not depend on the choice the applicant made in response to the contested decision; had the applicant chosen not to run, that would have been clearer evidence of being “adversely affected.”
  - The January 17, 2006 decision was not hypothetical and the applicant did not seek merely an advisory opinion (Report of the Executive Board, p. 13).
- Remedies sought by Applicant:
  - Damages for the decision that allegedly infringed his right to association.
  - (Separately, in administrative review and Grievance) sought formal rescission of the January 12, 2006 email and a FUNDALL memorandum confirming staff eligibility for Staff Association membership and nomination.

### Regulatory decision issue
- Statutory definition recalled: “regulatory decision” = “any rule concerning the terms and conditions of staff employment, including the General Administrative Orders and the Staff Retirement Plan, but excluding any resolutions adopted by the Board of Governors of the Fund.” (Statute, Article II, 2.b.)
- Respondent’s position:
  - The practice challenged (proposing to reassign an HRD staff member to other duties to avoid conflict of interest if elected to SAC) was not published or circulated and was used ad hoc by a small number of HRD officials; it was not a “regulatory decision” within Article II, Section 2.b.
  - The January 12, 2006 email position “never became HRD policy” because it was “immediately modified.”
- Applicant’s position:
  - Contended the January 17, 2006 decision was part of a regulatory approach that continued to affect his decision-making as to future elections.
  - Invoked Baker I to argue a “regulatory decision” need not have fully realized tangible effects to cause an applicant to be “adversely affected”; the decision may have “some present effect.”
- Tribunal observations:
  - Even if the January 17, 2006 decision were held to be a “regulatory decision,” the element of “present effect” no longer obtains because, subsequent to the pleadings, Applicant is on leave and not anticipated to return to active service before separating from the Fund (parties informed Tribunal in response to a request for information). See Baker II (IMFAT Judgment No. 2006-4) on mootness where “present effect” ceased.
  - The Tribunal did not need to determine whether the decision was “regulatory” because it concluded Applicant was “adversely affected” by the contested decision in any event.
  - Whether cast as “regulatory” or “individual,” the underlying principle—that the Fund may take measures to avoid risk of conflict of interest between job functions and SAC service—is subject to Tribunal review when assessing abuse of discretion in application to Applicant.

### The January 12, 2006 email to all HRD staff
- Facts and chronology:
  - SPM announced via Department-wide email on January 12 that running for election to the SAC was “considered a conflict of interest and consequently not permitted for HRD staff.”
  - After the Staff Association Election Committee announced candidates on January 13, HRD “reconsider[ed]” and “modified it considerably.”
  - Applicant claims the January 12 email, together with subsequent actions, amounted to attempts to interfere with his rights and constituted intimidation and harassment.
- Respondent’s assertions:
  - The January 12 position “never became HRD policy” and was “immediately modified.”
  - Managers did not focus on Applicant’s alleged insubordination; they modified the position and offered Applicant a reasonable choice of actions.
  - The Fund does not defend the generalized position that all HRD staff are barred from serving on the governing board of the Staff Association and states senior HRD management “expressly moved away from such a generalized approach” in favor of case-by-case examination of conflict risk.
- Tribunal finding:
  - The Tribunal concludes Applicant was “adversely affected” by the January 12 email within the meaning of Article II of the Statute for purposes of alleging intimidation and harassment resulting from that communication and subsequent modifications.
  - The only evidence that January 12 decision was rescinded or “reconsidered” is that it was not enforced against Mr. D’Aoust; neither formal rescission nor FUNDALL confirmation was included among the remedies sought before the Tribunal, and Respondent did not indicate any formal rescission was taken.

### Tribunal’s overall conclusions relevant to abuse of discretion question
- Applicant has been found “adversely affected” by:
  - The January 17, 2006 decision requiring a choice between SAC candidacy and retention of job assignment; and
  - The January 12, 2006 email to all HRD staff for purposes of alleging intimidation and harassment.
- Because adverse effect is established, the Tribunal will consider whether the Fund abused its discretion by violating Applicant’s right to association under the Fund’s internal law when presenting the choice between forgoing nomination to the SAC and accepting reassignment if elected.
- The question of whether the contested practice constituted a “regulatory decision” is unnecessary to resolve for admissibility; the underlying principle and its application are subject to review on the merits.

*Source: IMF Administrative Tribunal judgment excerpt concerning Mr. M. D’Aoust and related case law.*

### 47.      Having concluded that Applicant’s principal claim—that the Fund violated his right to

### 47.      Having concluded that Applicant’s principal claim—that the Fund violated his right to 

### Rule N-14, Staff Association role, and historical background
- Rule N-14 of the Fund’s N-Rules (Staff Regulations) provides: “Persons on the staff of the Fund shall have the right to associate in order to present their views to the Managing Director and the Executive Board, through representatives, on matters pertaining to personnel policies and their conditions of service. Adopted June 22, 1979”
- The Managing Director recognized the existing Staff Association and the Staff Association Committee (“SAC”) as the association and representatives with which the Fund would deal. (Memorandum from Managing Director to Members of the Staff, July 25, 1979.)
- The Staff Association was founded and adopted its original Constitution in 1948 and is a self-governing organization acting independently of the Fund. (Mr. “V”, IMFAT Judgment No. 1999-2 (August 13, 1999), paras. 107, 113.)
- Staff Association Constitution (as amended December 18, 2002) purposes (Article II):
  - “a. to promote the interests and general welfare of the staff on matters pertaining to personnel policies and conditions of service;”
  - “b. cooperate with the Managing Director in furthering the efficient conduct of the work of the staff.”
- Staff Association activities include arranging to “communicat[e] the views of the staff to the management and the Executive Board on matters pertaining to personnel policies and conditions of service.” (Article III.a.)
- Membership (Article IV) specifies eligibility: “All members of the staff shall be eligible for membership in the Association.” Article IV also defines exclusions: “... other than the Managing Director, the Deputy Managing Directors, and those whose contracts state that they are not staff members. Members of the staff shall not include Executive Directors, Alternate Executive Directors, Advisors, or Assistants to Executive Directors, or contractuals. ....”
- Governance: a seven-member SAC elected annually (Articles V and VI; Staff Association Bylaws, Section 4). SAC duties: “carry[ing] out the purposes and promot[ing] the activities of the Staff Association as set forth in the Constitution.” (Bylaws, Section 3.)
- Bylaws Section 1 (Membership) grants members nomination and voting rights and “enjoy the full benefits of membership,” which Applicant asserts include the right to serve as SAC representative.

### Jurisdictional limits: Fund internal law vs Staff Association constitution/bylaws
- The Tribunal holds that alleged conflicts between contested acts of the Fund and the Staff Association’s Constitution and Bylaws lie outside the Tribunal’s jurisdiction. Article III of the Tribunal’s Statute requires applying “the internal law of the Fund,” including international administrative law principles; the Staff Association’s constitutive instruments are not part of the Fund’s internal law.
- Conclusion: the Fund cannot be held to have violated the Staff Association’s Constitution and Bylaws as such instruments are not within the Tribunal’s competence.

### Central questions posed by the Tribunal
- Did the Fund abuse its discretion, violating Applicant’s right to association under Rule N-14, by presenting Applicant a choice between forgoing nomination to the SAC while retaining current job responsibilities or standing for election on condition of transfer to a different post in HRD if elected?
- Does the Fund have discretion to take case-by-case measures to avoid conflicts of interest between a staff member’s job functions and service on the SAC?

### Tribunal interpretation of Rule N-14 and scope of the right to association
- Respondent’s position: Rule N-14 does not grant an “absolute right” to each staff member to serve on the Staff Association’s governing board irrespective of job responsibilities; Rule N-14 establishes a staff right to be represented “through representatives.”
- Applicant’s contention: Respondent “misreads” Rule N-14 by limiting the right to association to representation “through representatives.”
- Tribunal finding: sustains the Fund’s interpretation that Rule N-14 contemplates channeling staff interests “through representatives.” The interpretation aligns with the text and concept underlying the right to association, which aims to channel staff interests through representatives for mutual benefit and orderly presentation of views.
- At the same time, the Tribunal emphasizes that the significance of the right requires the Fund to “weigh carefully any potential incompatibility between job functions and service as a SAC official so as not to restrict unduly the right to association.”
- Cited principle: “[T]he right to associate, flowing as it does from a general principle of law, will to some extent have a legal dimension of its own, regardless of the statutory or written law of the organization concerned.” (C.F. Amerasinghe, The Law of the International Civil Service (2nd ed. 1994), Vol. II, p. 370.)

### Conflict-of-interest measures and discretionary authority
- Questions identified for proper measures:
  - What measures may the Fund properly take to avoid the risk of conflict of interest between job functions and SAC membership, consistent with Rule N-14 and legitimate Fund interests?
  - May the Fund limit SAC governance to staff whose current job responsibilities, including duties of confidentiality in personnel policy development, do not present a conflict of interest with representing staff interests?
- Respondent’s factual basis: SAC officials receive particular access to Fund information in discharging representative duties, including formal review of personnel proposals after internal HRD confidential deliberations. Protection of the confidential deliberative HRD process could pose conflicts for staff who both engage in internal policy deliberations and serve as SAC officials.
- Tribunal observation: protecting against conflicts of interest serves management and staff interests by maintaining independence of staff representatives.

### Comparative jurisprudence and relevance to the present case
- Suárez de Castro v. Director General of the Inter-American Institute for Cooperation on Agriculture, OASAT Judgment No. 89 (1985): incompatibility between high-level staff position and leader of employees’ organization lies in difficulty—but not impossibility—of properly representing employees; in that case the OASAT found no such incompatibility and held that suggesting resignation violated trade-union freedom.
- In re Di Giuliomaria, ILOAT Judgment No. 87 (1965): emphasized “special obligations” of a staff representative, including obligation to act solely in defense of staff interests and duty not to abuse rights incompatible with decorum.
- In re Gran Olsen (Nos. 1 and 2), ILOAT Judgment No. 1806 (1998): ILOAT concluded that conditioning appointment on resignation from Staff Committee office due to placement in Personnel unit was improper and questioned distinction between office-holders and other members; the ILOAT held the condition should not have been attached.
- Tribunal contrast: unlike Gran Olsen, the Fund in Mr. D’Aoust’s case has “set out a reasonable basis, supported by evidence, for differentiating between SAC officials and the membership,” based on the SAC’s particular role in staff-management relations.
- Tribunal conclusion on discretion: it is within the Fund’s discretionary authority to determine on a case-by-case basis the risk of conflict of interest between job functions and SAC service.

### Standard of review and heightened scrutiny for rights claims
- Standard for managerial discretion review (Commentary on the Statute): discretionary decisions cannot be overturned unless shown to be “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.” (Report of the Executive Board, p. 19.)
- The degree of scrutiny may vary with the nature of the contested decision and grounds of challenge. When a claim implicates a fundamental human right, a greater degree of scrutiny applies. (Ms. “M” and Dr. “M”, IMFAT Judgment No. 2006-6 (November 29, 2006), para. 117.)
- In discrimination claims, the Tribunal distinguishes between general equality of treatment and non-discrimination implicating universally accepted human rights principles (Mr. “F”, IMFAT Judgment No. 2005-1 (March 18, 2005), para. 81).
- The Tribunal has applied a “rational nexus” test for classification schemes to assess equality of treatment (Mr. “R”, IMFAT Judgment No. 2002-1 (March 5, 2002), para. 47), and applied stricter review where universally accepted human rights principles are implicated (Ms. “M” and Dr. “M”, paras. 132–33).

### Applicant’s claim and relevant precedent on freedom of association
- Applicant contends the Fund’s actions contravened his freedom of association, which he terms a “fundamental human right in international civil service law.”
- UNAT precedent: Robinson v. Secretary-General of the United Nations, UNAT Judgement No. 15 (1952) identified the right of association in terms of Articles 20 and 23 (4) of the Universal Declaration of Human Rights and held that “no action should be taken against a member of the staff on the ground that he is or has been an officer or representative of the Staff Association or otherwise has been active in the Association.” (Robinson, para. 14.)

*IMF Administrative Tribunal judgment excerpt.*

### 69.      It has been observed that “... while the right of association may be recognized in the

### j2008-1 - 69.      It has been observed that “... while the right of association may be recognized in the

### Legal status and scope of the right to association
- The right to associate derives from a “broader general principle of law” and may be recognized in an organization’s written law (Amerasinghe, supra at p. 370).
- ILOAT: “The rights conferred by these rules [of the Organization] must be taken together with those that are derived from the general principle; they are referred to below compendiously as the ‘right to associate’. By each contract of appointment the Organization accepts as part of the contractual terms the obligation not to infringe the right to associate.” In re García and Márquez (No. 2), ILOAT Judgment No. 496 (1982), Consideration 6.
- ILOAT in In re Olivares Silva, ILOAT Judgment No. 495 (1982), Considerations 1, 3, 23: officers and members of the Staff Association may act in furtherance of their common interests and shall not be penalised by the Administration for such activity that is not otherwise improper; any such penalisation would be an abuse of the Director’s discretion and within the power of the Tribunal to review (quashing non-renewal of contract where bias from Staff Association activities was a factor).

### Right to association as a substantive limit on discretion
- The right to association, like the right to non-discrimination, imposes a substantive limit on the Fund’s discretionary authority.
- The Tribunal recognizes that the right to association must be balanced against the legitimate administrative interest of good administration.

### Authority to transfer staff and limits on that authority
- GAO No. 11, Rev. 4 (January 16, 2004), Section 5.07 governs transfers: “5.07 Transfers. A staff member may be transferred by the Head of his or her department from one position to another within the department, provided that the grade or the established range of grades of the two positions are the same. Other intradepartmental or interdepartmental transfers will be made in accordance with procedures established by the Director of Human Resources.”
- Precedent: Ms. “C”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 1997-1 (August 22, 1997), para. 30: administrative authority may organize offices and assign staff to suit tasks.
- Transfers as discretionary but reviewable: transfers are subject to review for abuse of discretion (improper motivation, impermissible discrimination, or contravening a staff member’s right to association).

### Comparative case law on association and career consequences
- Ishak v. Secretary-General of the United Nations, UNAT Judgement No. 924 (1999):
  - Issue: whether a condition on promotion affects freedom of association of the applicant and staff he represents (Consideration IV).
  - Facts: Chairman of the UNHCR Staff Council served in an ungraded post and retained prior grade; promotion recommendation was made “subject to assignment to a post at that level.”
  - UNAT analysis (Consideration VIII): freedom of association is highly important and must be protected against abuses, but coexistence with good administration must be reasonably balanced; implied exceptions protect staff association (APPB Guidelines). The condition imposed on promotion did not interfere with freedom of association or violate administrative rules as alleged.
- Application to IMF case: the Tribunal analogizes Ishak to the Fund’s practice of transferring staff serving in representative capacity to posts that avoid conflicts of interest; possible adverse career consequences are outweighed by protecting against conflict of interest when narrowly tailored and temporary.

### Factual findings on Applicant (Mr. D’Aoust) and ECBR involvement
- Applicant served as Senior Human Resources Officer in the Compensation Policy and Benefits Division (CBD) during the period of the Employment, Compensation and Benefits Review (“ECBR”).
- Applicant acknowledged that his job responsibilities at the time he sought election to the SAC involved matters relating to the ECBR.
- The Fund asserts Applicant’s “core assignment” was to oversee the job grading function and that he was additionally assigned two special projects in 2005 and early 2006: an analysis of Washington-area housing costs and a study of market data on Grade A1-A8 salary levels, undertaken in connection with the ECBR.
- The Fund’s position: Compensation and Benefits Policy Division had the most significant role within HRD for policy analysis and development and was heavily involved in ECBR work, particularly during the second half of 2005 and first quarter of 2006.
- Fund view: “Particularly at the time of his candidacy, but also on an ongoing basis, a role or position within CBD, at Mr. D’Aoust’s grade level, could not be identified that would not have posed actual or potential conflicts of [interest]. If Mr. D’Aoust had been elected to the SAC, it would have been necessary, and entirely reasonable, to transfer him for the period of his term on the SAC to another division and position within HRD where he would have a less direct role in policy issues subject to consultations with the SAC.”

### Role of the SAC in ECBR and relevance to conflict risk
- Respondent characterizes the ECBR as the “main focus” of the SAC’s attention during the period.
- Tribunal in Daseking-Frank et al., Applicants v. International Monetary Fund, Respondent, IMFAT Judgment No. 2007-1 (January 24, 2007) recognized:
  - ECBR Steering Committee consulted “key stakeholders,” including SAC representatives (para. 20).
  - SAC representatives participated in informal briefings with the Executive Board during 2005.
  - During first quarter of 2006 the process featured exchanges of views between the SAC and the Managing Director (para. 22).
  - Staff individually and through SAC representatives had multiple opportunities to voice opinions and proffer alternatives; Management likewise engaged (para. 94).

### Tribunal conclusions on discretion, conflict of interest, and reasonableness
- Tribunal conclusion: Fund did not abuse its discretion in taking measures with respect to a staff member whose job functions reasonably presented a conflict of interest with SAC membership, provided measures are supported by evidence and narrowly tailored to protect against conflict of interest (para. 78).
- In Applicant’s case the Fund offered a choice: forgo nomination and retain current responsibilities, or be transferred to a different post in HRD at the same salary and grade level if elected; Tribunal found no abuse of discretion or impermissible discrimination and that the balance between freedom of association and good administration was reasonably struck (paras. 79, 79 conclusion referencing Ishak, Consideration VIII).

### Harassment and intimidation claims and Policy on Harassment
- Applicant alleged HRD actions in January 2006 constituted “harassment” and “intimidation” causing stress and prejudice:
  - Chronology of allegations: SPM email of January 12, 2006 to all HRD staff advising they were not permitted to be nominated to the SAC; Applicant told on January 13 and 17 by SPM and Division Chief that if elected he could not remain in his position and would be transferred; Applicant protested in a January 19, 2006 memorandum.
  - Applicant’s contention: SPM’s email of January 12 caused prejudice in the election because some voters may have believed he was ineligible.
  - Applicant described conduct as “dictatorial and intimidating” and asserted the situation “created a very hostile environment” causing “grave stress.”
- Respondent’s position: claims of harassment and intimidation are without foundation and stem from the stress inherent in the choice presented (serve on SAC and be transferred, or forego SAC and retain role); Fund characterizes Applicant’s initial persistence as “arguably insubordinate” and notes the January 12 decision was soon “reconsidered” and “modified ... considerably.”
- Fund’s Policy on Harassment (1999), Staff Bulletin 99/15 (June 18, 1999, revised July 21, 1999):
  - Prohibited “harassment”: “... behavior, verbal or physical, that unreasonably interferes with work or creates an intimidating, hostile, or offensive work environment. It can take many different forms, including intimidation or sexual harassment.” (para. 3).
  - “Intimidation” includes physical or verbal abuse; behavior directed at isolating or humiliating an individual or a group, or at preventing them from engaging in normal activities. Examples (para. 4) include: degrading public tirades by a supervisor or colleague; deliberate insults related to a person’s personal or professional competence; threatening or insulting comments, whether oral or written—including by e-mail; deliberate desecration of religious and/or national symbols; and malicious and unsubstantiated complaints of misconduct, including harassment, against other employees.

### Tribunal approach to harassment allegation
- The Tribunal links the harassment/intimidation claim to the validity of the Fund’s contested decisions (January 12 and January 17 actions).
- Having found no abuse of discretion in the January 17 decision and having considered the modification and reconsideration of the January 12 decision, the Tribunal evaluates whether Applicant suffered moral injury to his right to association as a result of the January 12 notice (paras. 83–84).
- The Tribunal notes competing characterizations of the January 13 “confrontation”: Applicant says he was confronted for running in contravention of the SPM’s email; Fund describes Applicant as determined to bring on a confrontation.

*Source: International Monetary Fund internal legal adjudication materials (excerpt).*

### 86.      The question arises whether Applicant has established that the conduct of which he

### 86.      The question arises whether Applicant has established that the conduct of which he complains amounts to “harassment” or “intimidation” in contravention of the Fund’s Policy on Harassment

### Harassment claim and evidentiary finding
- The Tribunal found that, except for Applicant’s unsupported assertion that the conduct of the SPM and the Division Chief was “dictatorial and intimidating,” Applicant "has not proffered any evidence of the kind that ordinarily would underlie a claim pursuant to the Fund’s Harassment Policy."
- The Tribunal referenced prior decisions for guidance: Mr. “F”, paras. 91-101; Ms. “BB”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2007-4 (May 23, 2007), paras. 59-93; Mr. “DD”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2007-8 (November 16, 2007), paras. 60-90.

### Interpretation of the Fund’s Policy on Harassment
- The Policy is directed at protecting against impermissible “conduct” rather than impermissible “decisions.”
- The Policy explicitly cautions under “Conduct that would not be considered harassment”:
  - “13. It is also important to note that, in the course of their work, supervisors have a responsibility to take difficult decisions, e.g., about moving people or changing work assignments. These decisions do not, in themselves, constitute harassment.”

### Tribunal conclusion on harassment and intimidation
- The Tribunal concluded Applicant was not the object of “harassment” or “intimidation” as those terms are defined by the Fund’s Policy on Harassment.
- Applicant alleged he felt “intimidated” by the Fund’s January 12, 2006 decision that would have prevented him as an HRD staff member from running for the SAC, rather than presenting reassignment as offered on January 17.
- Relevant factual and legal findings:
  - Applicant pursued nomination to the SAC and alleged moral injury as a result.
  - The Fund did not defend the January 12 decision and emphasized that it was quickly modified.
  - Mr. D’Aoust was not declared ineligible for nomination to the SAC but was invited to choose between his job assignment and a possible mandate to the Staff Association Committee.
  - The Fund accepted not to apply the January 12 directive, corrected its effects, accepted Mr. D’Aoust’s candidacy, and did not take disciplinary action against him.
- The Tribunal concluded Applicant did not suffer moral injury to his right to association by the existence of that policy until its revision on January 17, 2006.

### Allegation of denial of due process by the Grievance Committee
- Applicant’s contentions:
  - The Grievance Committee is not authorized to issue an order for summary dismissal.
  - Such a decision could not be taken solely by the Committee’s Chairman.
  - A decision to summarily dismiss a grievance may not properly be made without hearing both parties.
- Fund’s responses:
  - The claim of denial of due process by the Grievance Committee is not properly before the Tribunal and is without merit.
  - Respondent stated Applicant was on copy of the Fund’s submission and could have filed a response to the Fund’s comments.
  - The decision of the Grievance Chairman was issued some three months later.

### Tribunal’s procedural law framework and precedents
- The Tribunal’s established positions:
  - It does not serve as an appellate body vis-à-vis the Fund’s Grievance Committee; the Committee’s recommendations do not constitute “administrative acts” in the sense of Article II of the Tribunal’s Statute.
  - The Tribunal “may take account of the treatment of an applicant before, during and after recourse to the Grievance Committee” and “is authorized to weigh the record generated by the Grievance Committee as an element of the evidence before it.” (Mr. M. D’Aoust, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 1996-1 (April 2, 1996), para. 17; D’Aoust (No. 2), para. 171.)
- The Tribunal has dismissed challenges to Grievance Committee acts as falling within the Committee’s authority under GAO No. 31. Examples cited include:
  - Mr. “V”, paras. 125-31 (challenge to application of Committee’s standard of review).
  - Ms. “Z”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2005-4 (December 30, 2005), para. 119 (challenge to admissibility of evidence and production of documents).
  - D’Aoust (No. 2), paras. 170-76 (challenges to evidentiary rulings, standard of review, “re-stating” the question presented by the grievance).
  - Mr. “DD”, para. 168 (reaffirming that the proceedings of the Grievance Committee are not dispositive of matters before the Tribunal).

### Jurisdictional procedures and summary dismissal practice
- GAO No. 31 provides the Grievance Committee decides its own jurisdiction for purposes of proceeding with a Grievance, but does not specify a procedure governing summary dismissal of a grievance.
- Applicant argued that audi alteram partem ought to govern summary dismissal proceedings in the Grievance Committee.
- Under the Tribunal’s Rules of Procedure, Rule XII (Summary Dismissal), para. 5 provides an applicant the opportunity to file an Objection to a Motion for Summary Dismissal of an Application.
- The Fund argued Applicant could have responded to its submission seeking dismissal of the Grievance.
- GAO No. 31 Section 2.02 provides for hearing of cases by a panel consisting of the Chairman and two other members; Section 7.06.1 provides the parties are entitled to a full and impartial hearing before “the Committee,” or, if the parties agree, to a decision by “the Committee” on the basis of written submissions.
- The Tribunal noted historical practice where the Grievance Committee Chairman has acted individually in dismissing a Grievance for lack of jurisdiction, while in other instances the Grievance Committee as a whole has acted.

### Tribunal’s disposition on due process challenge
- The Tribunal declined to pass upon the propriety of the Grievance Committee’s procedural actions in summarily dismissing Mr. D’Aoust’s Grievance.
- The Tribunal determined the precise issue—whether Applicant was “adversely affected” by an administrative act of the Fund—had been decided by the Tribunal’s Judgment (see supra Consideration of the Issues of the Case; Was Applicant “adversely affected” by an administrative act of the Fund as required by Article II of the Tribunal’s Statute?).
- The Tribunal denied Applicant’s claim that he was not afforded due process by the Grievance Committee.

### Decision
- For these reasons, the Administrative Tribunal of the International Monetary Fund unanimously decides that:
  - The Application of Mr. D’Aoust is denied.

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_Source: https://www.imf.org/-/media/files/imfat/j2008-1.pdf_