## JUDGMENT No. 2012-1 (Administrative Tribunal of the International Monetary Fund) ## Source details **Canonical URL:** [JUDGMENT No. 2012-1 (Administrative Tribunal of the International Monetary Fund)](https://www.imf.org/-/media/files/imfat/j2012-1.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2012-1.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2012-1.pdf.json) --- ### Case background, parties, and relief sought - The Administrative Tribunal of the International Monetary Fund adjudged the Application on March 5 and 6, 2012, before a panel composed of Judge Catherine M. O’Regan, President, and Judges Andrés Rigo Sureda and Jan Paulsson. - Applicant: Ms. Neena Sachdev, former staff member of the Fund; represented by Ms. Katarzyna Dourney and Mr. Stephen Schott, Schott Law Associates LLP. - Respondent: International Monetary Fund; represented by Ms. Diana Benoit, Senior Counsel, IMF Legal Department. - Subject of the Application: - Non-selection of Applicant for the position of Assistant Secretary for Conferences in the Bank-Fund Conferences Office (BFCO) at Grade B2. - Abolition of Applicant’s position as Advisor for Conferences in the BFCO at Grade B1 as part of the 2008 Fund-wide downsizing exercise. - Relief sought by Applicant: - Return to service with the Fund in a B-level or A14/A15 position with retroactive pay. - Substantial monetary compensation for loss of career opportunities and compensation for unused annual leave. - Legal fees and costs under Article XIV, Section 4, of the Tribunal’s Statute if the Application is well-founded in whole or in part. - Respondent’s position: - Selection and abolition decisions were based on legitimate business objectives and consistent with fair procedures and the Fund’s internal law. - Applicant was given requisite notice; separation benefits were calculated in accordance with governing internal law; obligations under GAO No. 16, Rev. 6, Section 12.02, were met. ### Procedural history and anonymity request - Application filed: July 6, 2011. - Respondent’s Answer filed: August 29, 2011. - Applicant’s Reply submitted: October 3, 2011; supplemented per Rule IX, para. 4. - Respondent’s Rejoinder filed: November 14, 2011. - Applicant requested anonymity under Rule XXII; Tribunal denied the request, finding no good cause under Rule XXII given the nature of the claims and applicable precedents. ### Document production requests (Rule XVII) — scope and rulings - Applicant sought person-by-person, redacted data (A13–B2 staff leaving since 2001) and other categories related to separation benefits, deferrals, rehiring, and assistance. - Tribunal applied Rule XVII balancing probative value, burden, and privacy; cited precedents O’Connor (No. 2) and D’Aoust (No. 2). - Decisions on requests: - Request No. 1 (separation-related leave, benefits/payments for Grade A13–B2 since 2001): denied as of limited relevance and undue burden. - Request No. 2 (assistance to re‑position staff since 2001): denied as unduly burdensome given marginal probative value. - Request No. 3 (deferral/cancellation of 2008 separations beyond May 13, 2009): denied on relevance grounds; deferrals applied to volunteers, not mandatorily separated staff. - Request No. 4 (rehiring of staff separated under 2008 downsizing): denied because Fund response indicated no such rehiring and Applicant did not show Fund withheld documents. ### Key factual findings on vacancy, selection, and non-selection - Applicant’s employment and acting role: - First employed by the Fund beginning in May 1987. - Appointed as Advisor for Conferences at Grade B1 in 2004; served as Acting Assistant Secretary from September 2006 until May 2008. - Vacancy and selection process for Assistant Secretary (March–October 2007): - Vacancy advertised in March 2007 in the World Bank and externally; not posted on the Fund’s internal Career Opportunities site (technical explanation given). - Applicant applied timely; initially not shortlisted but later included on a short list of six after SPM intervention. - Two independent Selection Panels interviewed in September 2007 and recommended the same external candidate described as standing “head and shoulders” above other candidates (Tr. 367). - Applicant was not selected and received no contemporaneous written feedback. - Tribunal findings on fair process in selection: - Failures of fair process identified: - Failure to inform Applicant sooner that the vacancy would be opened to external competition and that selection procedures would deviate from usual Fund rules (para. 119). - Failure to publish the vacancy on the Fund’s Career Opportunities intranet site despite an external paid advertisement (para. 120). - Failure to demonstrate provision of meaningful feedback following non-selection as contemplated by Staff Bulletin No. 03/27, para. 31. - Nonetheless, Tribunal sustained the non-selection decision because Applicant was not among the top three candidates and the selection panels’ independent evaluations showed a distinct scoring gap favoring the selected candidate. ### Downsizing exercise, abolition of position, and timing - 2008 Fund-wide downsizing framework: - Volunteers were sought March 1–April 21, 2008; volunteers could elect a last day of active duty within May 14, 2008–May 13, 2009. - Some 492 volunteers separated under the downsizing exercise. - A limited number of mandatory separations were undertaken; Applicant was one of three B-level staff mandatorily separated. - Rationale for abolishing Applicant’s B-level Advisor position (BFCO): - Departmental reduction targets and judgment that “maintaining two B-level staff in a very small office cannot be justified” due to advances in technology and changing work practices. - SPM’s June 13, 2008 memorandum and Department Director’s July 24, 2008 request recommended abolition effective September 1, 2008; contemplated additional A-14 support “mid FY 2009 or early FY 2010.” - Notification and pre-notification: - Applicant received pre-notification letter dated July 28, 2008 informing her position would be abolished effective September 1, 2008. - Staff Bulletin No. 08/03 required a one-month pre-notification period followed by a six-month job search/reassignment period and a two-month notice period if no reassignment found. - Tribunal concluded Applicant received reasonable notice consistent with Staff Bulletin No. 08/03 and GAO No. 16, Rev. 6. ### Challenges to abolition and Tribunal’s assessment of pretext - Applicant alleged abolition was pretextual, intended to open an essentially identical A14/A15 position later for which she was not considered. - Evidence and testimony: - Department memoranda contemplated possible A-14/A15 involvement in BFCO steady state charts (Attachment “Organization Chart (Steady State: FY 2010/2011)”). - Testimony indicated potential lateral transfer of an existing A-14 rather than creation of a new, materially identical post; proposed A-14 transfer did not occur. - Tribunal conclusion: - The Tribunal accepted Fund’s legitimate business rationale and found no evidence of improper motivation or that an equivalent post was actually created to replace Applicant’s abolished position. ### GAO No. 16, Section 12.02 — job search and reassignment obligations - Text and obligations preserved verbatim: - Fund will assist affected staff over a period of not less than six months in seeking another suitable position; staff will have access to information on available positions; Fund will assist in identifying suitable vacancies; if a separating staff member is considered equally qualified as another applicant, preference will be given to the staff member subject to separation; Fund shall provide appropriate training if it will facilitate selection. - Tribunal interpretive standards and precedents: - Obligation requires “genuine, serious, and pro‑active efforts” to reassign staff; obligation not to guarantee reassignment but to make proactive assistance (Pyne, Mr. “F”, Marshall, Jakub). - The duty may be heightened for long-serving staff with strong performance records. ### Tribunal finding of breach of reassignment obligations - Applicant’s conduct and HRD assistance: - Applicant took affirmative steps to seek reassignment (April 2008 meetings; August 20, 2008 memorandum; October 3, 2008 meeting). - Applicant applied for six positions: one at B1, one at B1/B2, and four at A15. - HRD assigned a Human Resources Officer (HRO) to the case; Applicant contends this was inadequate for a B-level case which typically requires senior HRD involvement. - HRO forwarded Applicant’s resume to the World Bank and IFC in December 2008 but no substantive matches resulted. - World Bank vacancy and cross-institution communication: - Evidence indicated possible World Bank inquiry yielded only lower-grade positions; Fund managers did not communicate these possibilities to Applicant despite her expressed willingness to consider lower-grade positions. - Tribunal found it unreasonable and in breach of GAO No. 16, Section 12.02 for the Fund not to have brought possible Bank vacancies to Applicant’s attention in the joint BFCO context. - Tribunal conclusion: - “The Fund failed to meet the obligations imposed upon it by GAO No. 16, in respect of all separations governed by Section 12 of the GAO, to take steps proactively to assist Applicant in seeking to attain another suitable position to which she could be assigned.” (paras. summarized) ### Leave, SBF entitlement, and other administrative determinations - Accrued annual leave: - Applicant asserted entitlement to reimbursement for 72.6 days of unused annual leave. - GAO No. 13, Rev. 6, Section 3.07 limits lump sum payment in lieu of accrued annual leave to a maximum of 60 work days. - Tribunal found accrued leave entitlement handled in accordance with Fund written law; no exception warranted. - Separation Benefits Fund (SBF) calculation: - Applicant requested inclusion of earlier contractual service in SBF calculation to increase benefit from approximately 15 months to the 22.5‑month maximum; HRD denied request. - Tribunal found no legal basis to include contractual service prior to appointment as staff for SBF calculation; decision sustained. - Timing and differential treatment among B-level separations: - Only two other B-level staff were mandatorily separated in addition to Applicant; Tribunal accepted Fund’s contention that timing differences related to business objectives and departmental restructuring needs. ### Remedies, compensation, and costs awarded - Tribunal remedies and awards: - The Tribunal sustained the Fund’s decisions not to select Ms. Sachdev for Assistant Secretary and to abolish her Advisor position as part of the 2008 downsizing. - The Tribunal found multiple failures of fair process in the selection and a serious breach of GAO No. 16, Section 12.02 in failing proactively to assist Applicant in reassignment, including failure to inform Applicant of possible World Bank vacancies. - Compensation awarded to Applicant for procedural failures and rule breach: $75,000. - Applicant submitted legal fees and costs totaling $84,395.45. - Tribunal awarded 75 percent of legal fees and costs incurred: $63,296.59 (75% of $84,395.45). - Final decision points: - (1) The Fund’s decision not to select Ms. Sachdev for Assistant Secretary for Conferences in the BFCO at Grade B2 is sustained. - (2) The Fund’s decision to abolish Ms. Sachdev’s Advisor for Conferences position in the BFCO at Grade B1 is sustained. - (3) Ms. Sachdev is entitled to compensation for specified failures of fair process and for the Fund’s breach of GAO No. 16, Section 12.02. - (4) Award of $75,000 to Ms. Sachdev as compensation. - (5) Award of $63,296.59 to Ms. Sachdev as 75% of legal fees and costs incurred. - Judgment signed in Washington, D.C., March 6, 2012, by Catherine M. O’Regan (President), Andrés Rigo Sureda (Judge), and Jan Paulsson (Judge); Celia Goldman, Registrar. *Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2012-1 (Decision dated March 6, 2012).* ### Introduction .......................................................................................... 1 ### Introduction ### Case background and parties - The Administrative Tribunal of the International Monetary Fund adjudged the Application on March 5 and 6, 2012, before a panel composed of Judge Catherine M. O’Regan, President, and Judges Andrés Rigo Sureda and Jan Paulsson. - Applicant: Ms. Neena Sachdev, former staff member of the Fund; represented by Ms. Katarzyna Dourney and Mr. Stephen Schott, Schott Law Associates LLP. - Respondent: International Monetary Fund; represented by Ms. Diana Benoit, Senior Counsel, IMF Legal Department. - Subject of the Application: - Non-selection of Applicant for the position of Assistant Secretary for Conferences in the Bank-Fund Conferences Office (BFCO) at Grade B2. - Abolition of Applicant’s position as Advisor for Conferences in the BFCO at Grade B1 as part of the 2008 Fund-wide downsizing exercise. - Relief sought by Applicant: - Return to service with the Fund in a B-level or A14/A15 position with retroactive pay. - Substantial monetary compensation for loss of career opportunities and compensation for unused annual leave. - Legal fees and costs under Article XIV, Section 4, of the Tribunal’s Statute if the Application is well-founded in whole or in part. - Respondent’s position: - Selection and abolition decisions were based on legitimate business objectives and consistent with fair procedures and the Fund’s internal law. - Applicant was given requisite notice; separation benefits were calculated in accordance with governing internal law; obligations under GAO No. 16, Rev. 6, Section 12.02, were met. ### Procedural history - Application filed: July 6, 2011. - Applicant asked to supplement Application under Rule VII, para. 6, on July 7, 2011. - Supplemented Application transmitted to Respondent: July 13, 2011. - Registrar circulated a notice summarizing the issues raised in the Application within the Fund: July 21, 2011 (pursuant to Rule IV, para. (f)). - Respondent’s Answer filed: August 29, 2011. - Applicant’s Reply submitted: October 3, 2011; supplemented in accordance with Rule IX, para. 4. - Respondent’s Rejoinder filed: November 14, 2011. ### Applicant’s request for anonymity and Tribunal ruling - Applicant’s request: anonymity under Rule XXII (anonymity provisions cited). - Applicant’s asserted grounds: protection of confidential personal and professional information, including health, welfare, family matters, and financial loss from separation. - Respondent’s opposition: matters at issue (non-selection, abolition, job-search assistance) are not “matters of personal privacy” under the applicable standard; references to health and well-being are not central to the merits. - Tribunal’s interpretation and precedent: - Rule XXII grants anonymity only where good cause is shown for protecting privacy; anonymity is an exception to public naming. - Jurisprudence grants anonymity principally in cases involving alleged misconduct or matters of personal privacy (e.g., central medical evidence or sexual-misconduct contexts). - Prior denial example: Ms. D. Pyne (IMFAT Judgment No. 2011-2) where separation and benefits claims were not deemed matters of personal privacy. - Tribunal’s conclusion: Applicant did not show good cause under Rule XXII; request for anonymity denied. ### Applicant’s requests for production of documents (Rule XVII) - Applicant requested the Fund produce, person-by-person, data on separation-related leave, benefits and/or payments for staff in grades A13 through B2 leaving the Fund since year 2001, including administrative or “special” leave or arrangements affecting pension rights. - Requested disaggregation: person-by-person (with individual names redacted), by age, gender, and grade, for staff graded A13 through B2 who left since year 2001, by either voluntary or mandatory separation. - Applicant noted prior request for this information during the grievance process and that she had not received the data; the information was not obtained during the hearings. *Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2012-1* ### 2. Any and all documents showing, person-by-person (with ### j2012-1 - 2. Any and all documents showing, person-by-person (with ### Scope of document requests and Tribunal rules on production - Rule XVII (Production of Documents) provisions cited: - Applicant may request Tribunal to order production pursuant to Rule VII, Paragraph 2(h). - Tribunal may reject requests if documents are irrelevant, unduly burdensome, or infringe privacy; may examine documents in camera. - Tribunal may order production subject to Article X, Section 1 of the Statute and may adjust time limits. - Applicant sought multiple categories of person-by-person data with individual names redacted, including: - Assistance provided to re-position staff affected by abolition or reduction in force since year 2001. - Separation-related leave, benefits and/or payments for Grade A13-B2 staff who have separated since 2001 (Request No. 1). - Documents on deferral or cancellation of staff separations beyond May 13, 2009 in connection with the 2008 downsizing (Request No. 3). - Documents pertaining to rehiring of staff separated under the 2008 downsizing (Request No. 4). ### Request No. 1 — separation-related leave, benefits, payments (Grade A13-B2 since 2001) - Applicant sought “person-by-person” data by age, gender and grade, with names redacted. - Fund objections: - Requested information is not relevant to the issues of the case. - Production would be unduly burdensome. - Production “could” violate confidentiality of staff members (even with names redacted) and have a “chilling effect” on future discretionary separations. - Respondent’s assertions: - Applicant’s purpose appears to be to show alleged violations of limitations on SBF payments prescribed by GAO No. 16. - Fund officials testified to adherence to limitations on mandatory and discretionary SBF payments and to internal audit oversight (Tr. 45, 197-198). - Applicant “herself received her full SBF entitlement.” - Applicant’s Reply request: - Asked for “at the very least” the results of the internal audit. - Fund objected, characterizing request as a “fishing expedition” into private documentation and overbroad. - Tribunal analysis and decision: - Applicant’s request was broader in chronological scope than the specific issue (difference in treatment during 2008 Fund-wide downsizing). - Record indicated only two other B-level staff were mandatorily separated as part of 2008 downsizing; evidence exists regarding those separations (Email from Fund’s counsel to Grievance Committee, August 17, 2010; Tr. 108, 236-237). - Tribunal weighed probative value against burden and privacy interests (citing IMFAT precedents O’Connor (No. 2) and D’Aoust (No. 2)). - Tribunal concluded requested information would be of limited relevance given record evidence and denied Request No. 1. ### Request No. 2 — assistance to re-position staff since 2001 (person-by-person, names redacted) - Applicant sought documents showing assistance (redeployment within department or in another department or organization, deferral of position abolition, or other means). - Fund objections: - Production would be “exceedingly burdensome” and of “at most, very attenuated relevance.” - Documentation is “potentially of a private nature concerning the individuals involved.” - Relevant data about success rates is not readily available. - Applicant’s response: - Proposed that Fund could provide “data analyzing its own effectiveness in assisting staff” rather than numerous documents. - Tribunal analysis: - Legal focus under GAO No. 16, Section 12.02, is on adequacy of assistance rendered, not on ultimate reassignment success (citing Pyne, para. 97: “organization’s obligation in cases of abolition of position is not to reassign but to provide proactive assistance toward that goal”). - Success rates of others’ reassignment efforts are of only marginal relevance. - Tribunal referenced precedents (O’Connor (No. 2)) that statistical information without additional context is not probative of discrimination in an individual case. - Given the record evidence concerning assistance the Applicant received and jurisprudence for assessing those facts, the Tribunal denied Request No. 2 as unduly burdensome in view of limited probative value. ### Request No. 3 — deferral or cancellation of staff separations in 2008 downsizing - Applicant sought documents relating to deferral or cancellation of staff separations beyond May 13, 2009. - Fund responses: - There were no “cancellations” of staff separations in that exercise. - “Deferrals” and “extended deferrals” applied only to volunteers under the downsizing and not to those mandatorily separated (such as Applicant). - Cited Staff Bulletin No. 08/03 (Refocusing and Modernizing the Fund: The Framework for the Downsizing Exercise) (February 29, 2008), pp. 2-3, and Intranet notification to staff of February 2, 2009 regarding deferrals for volunteers. - Tribunal decision: - Information relating to deferrals and extended deferrals taken in the interest of the IMF for volunteers is not relevant to Applicant’s case. - Request No. 3 denied on relevance grounds (Rule XVII, para. 2). ### Request No. 4 — rehiring of staff separated under the 2008 downsizing - Applicant sought documents relating to rehiring of staff separated under the 2008 downsizing. - Fund response: - Policy against rehiring of former staff who separated voluntarily during the downsizing; no exceptions made. - No comparable policy exists for those mandatorily separated; Fund asserts there have been no such rehiring cases. - Tribunal decision: - Fund’s response effectively met Applicant’s request. - Applicant proffered no evidence that Fund possessed additional responsive documents. - Request No. 4 denied on basis that Applicant had not shown she was denied access to documents by the Fund (Rule XVII, para. 1). ### Tribunal reasoning on evidentiary balance, privacy, and burden - Tribunal applied precedent weighing potential probative value against production burden and privacy interests (citing IMFAT judgments: O’Connor (No. 2) and D’Aoust (No. 2)). - Emphasized that statistical or broad person-by-person data about other staff members is of limited relevance where the central issue concerns adequacy of assistance to the Applicant in her individual case. - Tribunal denied requests that were broadly scoped or would impose undue burden given limited expected probative value. ### Oral proceedings and evidentiary record - Article XII of the Tribunal’s Statute and Rule XIII, para. 1 discussed; Applicant did not request oral proceedings. - Tribunal had access to transcript of Grievance Committee oral proceedings with testimony from: - Applicant; Applicant’s Department Director; Senior Personnel Manager (SPM) of Applicant’s Department; Acting Director of Human Resources Department (HRD); an HRD Division Chief; and a co-worker. - Tribunal authorized to weigh Grievance Committee record as evidence (citing Mr. M. D’Aoust, IMFAT Judgment No. 1996-1, para. 17). - Tribunal determined oral proceedings were not useful given the extensive written record and lack of request. ### Factual background relevant to request and to Applicant’s claims - Employment history and positions: - Applicant first employed by the Fund beginning in May 1987 (initially contractual, later staff). - In 2004, appointed as Advisor for Conferences at Grade B1 in the BFCO (BFCO is a joint IMF-World Bank office; Fund staff in BFCO are members of the IMF Secretary’s Department (SEC); Applicant held the “number two” position, second to Assistant Secretary at Grade B2). - Acting Assistant Secretary role and selection process: - From September 2006 until May 2008, Applicant served as Acting Assistant Secretary while retaining Advisor position; Applicant alleges expectation of appointment to Assistant Secretary. - Applicant alleges long-standing practice that Assistant Secretary alternated between IMF and World Bank staff and that the “number two” advanced to head the Office; position was subject to a competitive selection process. - Vacancy advertised in March 2007 in the World Bank and externally but not posted on the Fund’s internal Career Opportunities website for technical reasons; HRD emailed SPMs and ASPMs on March 27, 2007 asking them to inform staff that position was advertised in the World Bank. - Applicant asserts she was not informed by her ASPM until the vacancy closed and only learned of posting via external notice. - Applicant applied timely; was initially not shortlisted but was placed on a short list of six after SPM intervention. - Two Selection Panels (equal numbers of Fund and Bank representatives) interviewed in September 2007; Panels recommended the same external candidate who was described as standing “head and shoulders” above other candidates (Tr. 367). - Applicant was not shortlisted highly (ranked lowest or next-to-lowest by Panels) and was not selected; Applicant received no written notification of outcome and continued as Acting Assistant Secretary until May 2008. *IMF Administrative Tribunal judgment.* ### 43. In early 2008, before the new Assistant Secretary’s arrival, the Fund announced its plans ### j2012-1 - 43. In early 2008, before the new Assistant Secretary’s arrival, the Fund announced its plans ### Fund-wide downsizing exercise and immediate effects - The Fund announced plans for an unprecedented downsizing initiative in early 2008 to trim and reshape its workforce to reduce expenditures and refocus the mission of the organization. - Volunteers for separation were sought under enhanced separation benefits; staff were given a window from March 1-April 21, 2008 in which to volunteer. - Volunteers elected a preferred last day of active duty falling within the 12-month period from May 14, 2008 to May 13, 2009. - Staff Bulletin No. 08/03 (Refocusing and Modernizing the Fund: The Framework for the Downsizing Exercise) (February 29, 2008), pp. 1-2, set out elements of the downsizing framework. - Some 492 volunteers separated under the beneficial terms of the downsizing exercise. - Although largely effected through voluntary separations, a limited number of mandatory separations were also undertaken; Applicant was one of three B-level (managerial) staff members to be separated under the mandatory phase of the exercise. ### Rationale given for abolishing Applicant’s B-level position (BFCO) - Fund Management and the Office of Budget and Planning issued staff reduction targets to each Department to be met by voluntary or mandatory separations. - Department communications characterized BFCO staffing needs as reduced: "the Joint Secretariat is much smaller than in previous years, due largely to advances in technology and changing work practices" and concluded that "maintaining two B-level staff in a very small office cannot be justified." - The SPM’s June 13, 2008 memorandum stated: abolishing the Fund’s B-level Conferences Advisor position was necessary for SEC to meet its steady state target for B-level staff; an additional A-14 staff member from SEC might be assigned to BFCO; anticipated timing "mid FY 2009 or early FY 2010." - Department Director’s July 24, 2008 request to HRD to abolish the Advisor position effective September 1, 2008 reiterated: - BFCO functioned with one B-level staff for sixteen months (January 2007-May 2008) while the other B-level position remained vacant, and given satisfactory operation during that period, duties could be carried out with one B-level position. - Additional direct support would be provided from the Immediate Office and from the Administrative Services Division of SEC. - The Secretary reaffirmed the desire to abolish the position "as of September 1, 2008." ### Notification, requests by Applicant, and HRD responses - Late July 2008: Applicant informed in meetings and received written "pre-notification" that her position would be abolished effective September 1, 2008; the notice referenced GAO No. 16, Rev. 6 provisions relating to abolition of position (Letter from HRD Director to Applicant, July 28, 2008). - Applicant’s written August 2008 requests to HRD sought: - postponement of the abolition date to enable working down accrued annual leave of 126 days before commencing the 6 month job search; - calculation of SBF entitlement to include earlier contractual service to increase the benefit from approximately 15 months of salary to the 22.5-month maximum; - extension of the notice period under GAO No. 16, Section 12.03, if job search unsuccessful, to the maximum 120 days. - HRD Director denied all but one request: - The effective date could not be extended due to budgetary and organizational constraints. - The department agreed Applicant could take annual leave effective immediately and during the 6-month job search period (Applicant disputed feasibility of simultaneous leave and job search). - SBF calculation would use only Applicant’s service "as a staff member" consistent with Fund policy. - HRD agreed to extension of notice period, in the event the job search were unsuccessful, to 120 days to allow Applicant to reach eligibility for a "Rule of 75" pension (Memoranda of August 13 and September 5, 2008). ### Job search period, reassignment efforts, and separation timeline - HRD confirmed administrative arrangements for mandatory separations: pursuant to GAO No. 16, Rev. 6, Section 12, Applicant’s "job search and retraining period" was to run from September 1, 2008 through February 28, 2009; if reassignment efforts failed, appointment would be terminated (Letter from HRD Director to Applicant, August 28, 2008). - Applicant applied for multiple positions but was not reassigned. Parties dispute the extent of Fund efforts to assist reassignment. - After the three-month notice period under GAO No. 16, Section 12.03, Applicant was placed on SBF leave from June 5, 2009 to September 30, 2010. ### Administrative review process and outcomes - Three administrative review requests were filed: September 26, 2008 (non-selection for Assistant Secretary); January 9, 2009 (abolition of Advisor position); November 4, 2009 (alleged failure to assist securing alternative position). - The Fund responded December 19, 2008 and November 24, 2009. Three Grievances followed: February 12, 2009; June 22, 2009; December 3, 2009. - Grievance Committee considered consolidated Grievances via oral hearings and briefs. - On March 18, 2011 the Grievance Committee issued its Recommendation and Report concluding Applicant had not shown abuse of discretion in non-selection or in abolition of the Advisor position, and that the Fund met its obligation under GAO No. 16, Section 12.02 to provide adequate reassignment assistance; Committee recommended denial of the Grievances (Grievance Committee Recommendation and Report, March 18, 2011, pp. 32-54). - Fund Management accepted the Grievance Committee’s recommendation by letter of April 7, 2011. - Applicant filed an Application with the Administrative Tribunal on July 6, 2011. ### Parties’ principal contentions (Applicant) - Applicant’s summarized arguments: 1. Wrongful denial of appointment as Assistant Secretary for Conferences; reasonable expectation based on rotation/succession tradition and successful acting service; delay in filling vacancy reinforced expectation. 2. Selection process for Assistant Secretary not carried out per governing law and fair procedures: failure to advertise internally, not following Review Committee procedures, inadequate interview and notification processes. 3. Abolition of Advisor position was an abuse of discretion and pretextual; a virtually identical lower-level position was to be created without considering Applicant. 4. Failure to give reasonable notice of abolition as required by internal law. 5. Unfair and unequal treatment in denying requests to defer abolition, extend SBF period, and exhaust accrued annual leave relative to others separated in 2008 downsizing. 6. Failure to assist in securing an alternative position as required by GAO No. 16, Section 12.02. 7. Relief sought: - reinstatement in a B-level or A14/A15 position, with retroactive pay; - substantial monetary compensation for loss of career opportunities; - reimbursement for 72.6 days of unused annual leave; - legal fees and costs incurred before the Administrative Tribunal. ### Parties’ principal contentions (Respondent / the Fund) - Respondent’s summarized arguments: 1. Selection of another candidate for Assistant Secretary was carried out with fair procedures to meet legitimate business objectives consistent with policy and practice. 2. Applicant had no entitlement to appointment; acting service did not confer entitlement; the IMF and World Bank had duty to hold an open selection process. 3. Abolition decision was based on business considerations and was not pretextual; BFCO continues to operate with one B-level staff and no comparable A14/A15 position has been added. 4. Abolition decision and subsequent separation complied with fair procedures and governing internal law, including adequate notice. 5. No discrimination in denying requests to defer abolition or exhaust annual leave; SBF calculation followed governing rules. 6. The Fund met and exceeded obligations under GAO No. 16, Section 12.02 to assist in reassignment; the Fund is not obligated to advise staff of World Bank opportunities. ### Relevant provisions of Fund internal law cited - Staff Bulletin No. 03/27 (Senior Promotions and Appointments in the Fund) (December 19, 2003) was cited; dispute exists whether its requirements governed selection for Assistant Secretary for Conferences. - Excerpts invoked by Applicant: - Review Committee procedures for Deputy Division Chief, Assistant to the Director, and Grades B1/B2 positions not limited to RC List, including RC review of three most qualified candidates and SPM participation if RC questions relative strengths. - Promotion to vacant positions: all vacant positions starting at Deputy Division Chief/Assistant to the Director at Grade A14 up to Grade B4 must be advertised in the Career Opportunities (CO), with limited exceptions for B3 and B4; positions should be advertised as soon as they fall vacant unless HRD approves keeping a position open for up to six months. - Vacancies are advertised in the CO on the Fund Intranet; managerial positions A14–B4 (except noted exceptions) must first be advertised internally before external candidates can be selected and considered by one of the Review Committees. *Source: International Monetary Fund Administrative Tribunal case materials (Applicant Ms. Sachdev v. International Monetary Fund).* ### Annex I. ### Annex I ### Vacancy advertising and the Vacancy List System - All vacant positions at Grades A15–B4 (as well as Grade A14 Deputy Division Chief/Assistant to the Director positions) must be advertised in the CO. - Exceptions to this general provision are limited to Grade B4 vacancies. - Positions must be advertised as soon as they become vacant. If departments need to hold a vacancy open, this should be approved by HRD. - Positions cannot be held vacant for a period exceeding six months. - A vacancy announcement is placed in JobLink only if departments have an existing or anticipated vacant position. ### Promotion review and committee roles - All candidates considered for promotion or appointment to managerial positions at Grades A14–B4 must be nominated by their department and reviewed by either the RC (for Grades A14–B2) or the SRC (for Grades B3–B4). - The Committees perform an advisory role to the Managing Director, who makes the final decision on every promotion or appointment to a senior position. - HRD responsibilities: - HRD screens candidates for promotion or appointment to senior positions to ensure that candidates meet the relevant eligibility criteria. - HRD provides the RC, SRC, and management with summary data required to review candidates. - HRD serves as the secretariat to the RC. - Review Committee (RC) composition and mandate: - The RC consists of the Director of HRD (Chairperson) and eight members at Grade B4 appointed by the Managing Director. - Committee members serve in their individual capacities and not as representatives of their departments. - Consideration in appointing Committee members 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. - Members serve three-year terms. - The RC seeks to ensure high quality in promotions and appointments for managerial positions to foster a mix of skills, experience, and diversity. - RC remit includes review and advice on: - All external appointments at Grades B1–B2. - All promotions from Grade B1 to B2. - Promotions/appointments/conversions at Grades A14 (Section Chief, Deputy Division Chief or Assistant to the Director) to B2 (including Resident Representatives), candidates nominated for the RC List, and all Resident Representative positions. - The RC meets to consider candidates for the May and November promotion cycles and on an ad hoc basis during the rest of the year. - Management actions: - Based on the advice of the RC, management makes the final decision and communicates its decision to HRD. - Management issues an N-12 notification to inform the Board of promotions to or appointments at the B-level. ### RC process, candidate evaluation, and feedback - Materials reviewed by the RC include: biographical information, last two APRs, TIG, Management Development Center (MDC) report, Individual Development Plans (IDP) for those proposed for the RC List or for Grade B1 promotions, SAM (if applicable), and the list of shortlisted and all other applicants. - The RC evaluates candidates’ experience in: - (i) analytical and research work; - (ii) guiding and influencing policy; - (iii) leading missions and project teams; - (iv) managing work programs; and - (v) guiding staff. - The RC also evaluates relevant competencies (see Annex VI). - Each RC member conducts independent inquiries about candidates proposed for inclusion on the RC List or for promotion through discussions with the candidate, current and former supervisors, subordinates, and peers. - The RC member undertaking the in-depth review completes a worksheet to identify skills, experience, and gaps against a consistent framework and shares it with other RC members; the department head or SPM may provide additional information. - The RC discusses the absolute and relative merits of each candidate and advises management about the promotion decision. - Feedback to unsuccessful internal candidates: - The RC and SRC provide feedback to unsuccessful internal candidates, but discussions and opinions shared among members are kept strictly confidential. - Each Committee agrees on summary information made available to candidates who were proposed but not endorsed; this includes reasons why the candidate was not endorsed, prospects for future consideration, and steps to strengthen candidacy. - The information is conveyed to the department head or SPM in the staff member’s department, who is asked to provide feedback to the individual concerned. - Representatives of HRD may also participate in providing feedback. ### Use of “Acting Chief” and “In-Charge” designations (applies to economist career stream and SCS positions) - “Acting Chief” designation: - Restricted to cases where a Division Chief vacancy is filled by an individual who is expected to be promoted to that position following a period of no more than 12 months, provided the incumbent performs at a fully satisfactory performance level. - The position must be advertised, the candidate endorsed by the RC, and approved by management. - Subsequent promotion to Division Chief requires RC endorsement and management approval. - “In-Charge” designation: - Used when an individual is given temporary responsibility for supervising a division in all other cases; designation conveys no presumption of subsequent promotion and does not require RC endorsement. - Typically used, with explicit approval of HRD, to cover prolonged absence of the Division Chief, when there is a legitimate reason for delay in filling the vacancy, or when the department has been unable to find a suitable candidate through the advertisement process. - The position will need to be readvertised within 12 months. The incumbent will need to compete with other candidates. ### Appointment of external candidates and search requirements - Departments may consider external candidates for positions at Grade A14 (Deputy Division Chief and Assistant to the Director) and above at the same time internal applicants are being considered, but: - The internal advertising process must be completed and all shortlisted candidates interviewed before a selection decision is finalized. - Departments recruiting an external candidate at Grades B1 and above must undertake a systematic external search which pays due regard to diversity considerations; the external search may include external advertising, use of a search firm, or a search through the Fund’s own contacts. - RC and SRC examine qualifications of all external candidates proposed for B-level vacancies. - Interview arrangements for external candidates at Grades B1–B2: - A panel composed of one RC member, the SPM from the department with the vacancy, and one staff member from HRD interviews candidates for vacancies at Grades B1–B2. ### Managerial positions and internal advertising - All managerial positions at Grades A14–B4, with the exceptions for Grades B3 and B4 noted in the guidelines, must first be advertised internally in JobLink before an external candidate can be considered and selected by the Review Committee. ### Underfilling policy and promotions - Definition of “underfilling”: - Underfilling is when a staff member is appointed to a position at a grade lower than the minimum entry grade of the position advertised in the full grade band applicable to the position because he/she does not fully meet the requirements of the position as per the vacancy announcement or job standards, but is expected to meet these requirements within 12 months from the date of the decision. - The staff member serves at the grade lower than the minimum established entry grade until he/she meets the requirements established at the time of appointment. - Promotions in underfilling cases: - Promotions will take place as soon as the requirements for the promotion are met without necessarily being aligned with the May or November promotion cycles (e.g., upon completion of a required degree or specified training, experience, or TIG). - In all cases of underfilling, the requirements for promotion to the minimum established grade of the position, including the duration of the underfilling period and consequences if the staff member fails to meet the established requirements, will be provided in writing to the staff member. ### Downsizing framework, separation procedures, and job-search assistance - Staff Bulletin No. 08/03 established the framework for the 2008 Fund-wide downsizing exercise. - Mandatory separations may arise from: - abolition of position (function will no longer be performed by the Fund); - reduction in force (function continues but number of positions is reduced); - redesign of position (position redesigned and incumbent is no longer qualified to meet new requirements). - For reductions in force, HRD, in consultation with departments, compiled a list of fungible categories of staff subject to reductions in force. - Operational aspects of separations: - Following a one-month pre-notification period, affected staff begin a six-month period for job search/reassignment, to be followed by a two-month notice period prior to separation (or commencement of separation leave), if no alternative employment at the Fund is found by the end of the job search period. - Job search assistance for staff subject to separation: - The Fund will provide assistance over a period of up to six months in seeking another suitable position for reassignment within the Fund. - Such staff will continue to have access to Career Opportunities; HRD will assist them in identifying suitable vacancies based on qualifications and interests. - When reassigning staff subject to separation, primary consideration shall be given to their qualifications for the vacant position. - Subject to primary consideration of qualifications, if a staff member subject to separation is considered as qualified as another applicant who is not at risk of separation, preference will be given to the staff member who is subject to separation. ### GAO No. 16 (Separation of Staff Members), Rev. 6 — Section 12 (Reduction in Strength, Abolition of Position or Change in Job Requirements) - Section 12.01 provides that a staff member may be separated in the event it is decided in the interests of efficient administration that: - (a) the number of positions of certain types or at certain levels must be reduced (“reduction in strength”); - (b) a specific position must be abolished because a function or set of functions performed by an individual is being eliminated (“abolition of position”); or - (c) a specific position must be redesigned to meet institutional needs and the incumbent is no longer qualified to meet its new requirements (“change in job requirements”). - Where positions are reduced in number, selection of staff to be separated shall be made primarily on the basis of managerial judgment about their relative competence, taking into account their performance and the skills needed by the Fund to carry out its work. - Consideration shall also be given to the need to retain as diverse a staff as possible without compromising the paramount consideration of retaining the most qualified staff. *Source: Annex I and Annex III; Career Opportunities: Policy and Guidelines (January 1, 2003) (Revised on July 27, 2004); Recruitment Guidelines (Intranet posting); Staff Bulletin No. 08/03 (February 29, 2008) and Supplement 1 (March 21, 2008); GAO No. 16 (Separation of Staff Members), Rev. 6 (February 28, 2008).* ### 12.02 Job Search and Retraining ### 12.02 Job Search and Retraining ### Job search, reassignment, and retraining obligations (Section 12.02) - When a reduction in strength, an abolition of position, or a redesign of a position results in redundancy, following the effective date of the notice of separation, the Fund will assist the affected staff member over a period of not less than six months in seeking another suitable position to which he may be reassigned. - Staff subject to separation will have access to information on available positions in the Fund. - Based on their interests and preferences, the Fund will assist in identifying suitable vacancies for which they may wish to compete. - Staff subject to separation will be considered for such vacancies along with other applicants, taking into account their qualifications for the vacant position. - If the staff member subject to separation is considered to be equally qualified for the position as another applicant who is not being separated, preference will be given to the staff member who is subject to separation. - During the job search and reassignment period, the Fund shall provide the staff member with appropriate training if such training will facilitate his selection for an existing or known prospective vacant position. - If all efforts to reassign the staff member fail, his appointment shall be terminated. ### Notice, resettlement, and separation payment provisions (Sections 12.03–12.05; Separation Benefits Fund Section 4.06; Discretionary payments Section 4.07) - Notice (Section 12.03): - A staff member separated under Section 12.01 shall be entitled to 60 calendar days’ notice. - The Director of Human Resources may extend this period up to 120 calendar days to allow the staff member a reasonable time, before his separation, to settle his affairs. - The Director of Human Resources may excuse a staff member from reporting for duty during part or all of the period of notice and place the staff member on administrative leave with pay during this period. - Resettlement Benefits (Section 12.04): - A staff member separated under Section 12.01 shall be eligible for resettlement benefits. - The minimum period of service required as specified in General Administrative Order No. 8 (Relocation Benefits and Separation Grant) shall not apply in such a case. - Payment from Separation Benefits Fund (Section 12.05 referencing 4.06): - Payments under the Separation Benefits Fund (Section 4.06): - A. For regular staff members with 4.8 years of service or more: an amount equivalent to 1¼ months of salary for each year of service, subject to a maximum that is the smallest of: - (i) the equivalent of 22½ months of salary; - (ii) the amount of salary that would otherwise have been payable to the staff member between the last day on active duty and his or her mandatory retirement age of 65; or - (iii) the amount of salary that would otherwise have been payable to the staff member between the last day on active duty and the date that is 12 months after the staff member reaches eligibility for an unreduced early retirement pension under Section 4.2(b) (ii) of the Staff Retirement Plan (SRP) (Rule of 85). For staff who have already met the Rule of 85, the amount shall be the equivalent of 12 months of salary. - B. For regular staff members with less than 4.8 years of service: an amount equivalent to 6 months of salary. - Discretionary payments (Section 4.07): - In exceptional circumstances, the Director of Human Resources may offer a separation payment to a staff member to facilitate his separation. - Such discretionary payments are distinct from automatic separation payments under Section 4.06 and are granted at the sole discretion of the Director of Human Resources. - The maximum amount that may be granted is set out in Section 4.06. ### Payment in lieu of accumulated annual leave (GAO No. 13, Rev. 6, Section 3.07) - Upon separation from the Fund, a staff member shall be paid a lump sum equivalent to and in lieu of his accrued annual leave, up to a maximum of 60 work days, subject to a reduction by any outstanding amounts owed by the staff member to the Fund. ### Case consideration: Applicant’s contentions and Tribunal analysis (Grievance concerning non-selection and abolition) - Applicant’s challenged decisions: - (1) Non-selection for the position of Assistant Secretary in the BFCO at Grade B2. - (2) Abolition of her position as Advisor for Conferences in the BFCO at Grade B1 as part of the 2008 Fund-wide downsizing exercise. - Applicant’s allegations: - Non-selection violated her legitimate expectations and was not consistent with Fund rules and fair procedures. - Abolition of her post was pretextual and improperly motivated to deprive her of Fund employment. - The Fund failed to: - give reasonable notice of the abolition decision; - afford fair and equal treatment in denying requests to defer the effective date of the position abolition, to provide increased separation benefits, and to exhaust accrued annual leave; - meet its obligation under GAO No. 16, Rev. 6, Section 12.02 to assist her in seeking an alternative position. - Respondent’s position: - Applicant had no entitlement to appointment as Assistant Secretary. - The selection process was carried out in accordance with fair procedures and legitimate business objectives. - Legitimate expectation claims considered by the Tribunal: - Applicant relied on (a) a purported “tradition of rotation and leadership succession” in the BFCO, (b) her service as Acting Assistant Secretary, and (c) the extended timeframe for filling the vacancy. - Evidence indicated a longstanding practice in which the head of the office and deputy alternated between Bank and Fund staff and that, in the recent past, the deputy had assumed the head position upon departure of the head. - The Fund emphasized there was “no formal understanding” or explicit commitment guaranteeing rotation or succession as a legal entitlement. - Fund witnesses explained institutional reasons for advertising the vacancy externally, including a judgment that conference management had become a “very highly specialized field” and a desire to strengthen professional skills through open competition. - Tribunal findings and legal reasoning: - Administrative practice can give rise to legal rights where an organization follows a practice “in the conviction that it reflects a legal obligation,” but such integration into conditions of employment is limited to well-established practice. - The evidence did not show that the past practice of advancing the “number two” to head the BFCO had been followed in the conviction it constituted a legal obligation. - The decision to hold an open, competitive selection process was consonant with evolving human resources practices and legitimate business interests in recruiting the best-qualified individual. - The Tribunal concluded that Applicant could not have a legitimate expectation of appointment to the Assistant Secretary position solely because of the past rotation practice. - Applicant’s notice/due process contention: - Applicant contended the Fund denied her due process by not informing her, prior to the posting of the vacancy in March 2007, that it would hold an open selection process and that, had she known, she would have sought alternative career options. *Source: IMF GAO No. 16, Rev. 6 (Sections 12.02–12.05); Separation Benefits Fund Sections 4.06–4.07; GAO No. 13, Rev. 6 (September 29, 2006), Section 3.07; case record and Tribunal analysis.* ### 85. The Fund responds that Applicant learned of the selection process no later than April ### j2012-1 - 85. The Fund responds that Applicant learned of the selection process no later than April ### Background and timeline - Applicant learned of the selection process no later than April 2007 when she submitted a timely application for the position. - Former Assistant Secretary departed at the close of the 2006 Annual Meetings in September 2006. - Applicant served as “Acting Assistant Secretary for Conferences” from September 2006 until May 2008 when the new Assistant Secretary began her appointment. - Vacancy posting and selection timeline: - Vacancy was posted in March 2007. - Interviews were held in September 2007. - In October 2007 the selectee was recommended by the Selection Panels to the Fund and Bank Secretaries. - Applicant was informed of her non-selection after the selectee confirmed her appointment in late 2007 or early 2008. - The new appointee arrived on the job in May 2008. - External advertisement text and details preserved verbatim: - “Qualified candidates are invited to apply online for Vacancy No. R07587 under Job Opportunities at www.imf.org/recruitment by April 30, 2007.” - The advertisement displayed the title “International Monetary Fund” at the top. ### Duty to inform and fairness of process - Tribunal finding on notice and fairness: - The Tribunal concludes that, given Applicant’s acute interest in the Assistant Secretary vacancy, “it was not fair of the Fund to keep the Applicant in ignorance of the decision that it had taken to open the vacancy to external competition.” - The Tribunal characterized this failure as “the first of a series” of failures of fair process by the Fund. - Rationale for Applicant’s acute interest: - Past practice of rotation and leadership succession in the BFCO. - Applicant’s service as Acting Assistant Secretary and proven ability to assume functions of her departed superior. - Fund Secretary’s testimony that the extended timeframe gave Applicant “the opportunity to show her ability.” ### Applicant’s service as Acting Assistant Secretary and Staff Bulletin No. 03/27 (Box 2) - Relevant provision (Box 2) preserved exactly as in source: - “Acting Chief” designation - “The use of the ‘Acting Chief’ title is restricted to cases where a Division Chief vacancy is filled by an individual who is expected to be promoted to that position following a period of no more than 12 months, provided the incumbent performs at a fully satisfactory performance level. The position must be advertised, the candidate endorsed by the RC, and approved by management. Subsequent promotion to Division Chief requires RC endorsement and management approval.” - “‘In-Charge’ designation - “In all other cases, an individual who is given temporary responsibility for supervising the work of a division is designated as ‘In-Charge’ of the division. This designation, which conveys no presumption of subsequent promotion, does not require RC endorsement. Typically, this is used, with the explicit approval of HRD, to cover the prolonged absence of the Division Chief or when there is a legitimate reason for a delay in the filling of the vacancy or when the department has been unable to find a suitable candidate through the advertisement process. The position will need to be readvertised within 12 months. The incumbent will need to compete with other candidates.” - Footnote: “1/ Applies to economist career stream and SCS positions.” - Respondent’s (Fund’s) interpretation and testimony: - HRD official testified that the “Acting Chief” provision was not applicable to Applicant’s role as Acting Assistant Secretary. - Fund’s position: rule applies when a staff member who has not yet met time-in-grade requirement for a B-level appointment (but will reach that milestone within 12 months) has been selected following a competitive selection process as a Division Chief; under the rule the selectee serves as “Acting Chief” until meeting the time-in-grade requirement. - Fund asserts the Assistant Secretary position was not a “Division Chief” position and Applicant had not been selected as the next Assistant Secretary. - Tribunal assessment of Box 2 and expectation of promotion: - Tribunal finds Box 2 “vague and unclear.” - Tribunal acknowledges Box 2 “is also capable of referring to a person who performs the tasks of a position while the position is vacant,” and that on such a reading promotion could follow advertisement, RC recommendation and management approval. - Tribunal concludes: Box 2 “cannot have created an expectation of promotion without any further process.” - Tribunal finds that neither the cited provision nor Applicant’s extended performance in the Acting role “could have given rise to any legitimate expectation in the mind of the Applicant that she would be automatically promoted.” ### Extended timeframe for filling the vacancy and whether Applicant was misled - Relevant Staff Bulletin No. 03/27 provisions quoted verbatim: - Staff Bulletin No. 03/27, p. 6: “Positions should be advertised as soon as they fall vacant, unless approval is obtained from HRD to keep a position open for a period of time, which should not exceed six months.” - “In-Charge” designation language: typically used “. . . with the explicit approval of HRD, to cover the prolonged absence of the Division Chief or when there is a legitimate reason for a delay in the filling of the vacancy or when the department has been unable to find a suitable candidate through the advertisement process. The position will need to be readvertised within 12 months.” - Respondent’s explanations for delay: - Operation of World Bank rules precluding posting until the incumbent’s actual separation (which followed a period of annual leave). - SPM testimony: desire “to at least give Ms. Sachdev a chance to demonstrate whether she could, in fact, do the job and give her a chance to show what she could do.” - Complications coordinating recruitment process between the two organizations over the summer. - Further delay in the selectee’s arrival attributed to her separating from prior employment. - Tribunal findings on delay and misleading conduct: - Critical fact: “the vacancy was posted a little more than six months following the former Assistant Secretary’s departure from active service.” - Tribunal concludes that Applicant’s continued service in an “Acting” capacity while selection proceeded “cannot be said to have wrongfully misled her” and “provided her further opportunity to demonstrate her qualifications.” - Tribunal concludes that neither past practice in the BFCO, Applicant’s Acting service, nor the extended timeframe “created a legitimate expectation of appointment to the vacancy or wrongfully misled Applicant that the position would be hers in the absence of a selection process.” ### Standard of review for managerial discretion and selection decisions - Tribunal restatement of Commentary on the Statute regarding managerial discretion (verbatim where quoted): - “[W]ith respect to review of individual decisions involving the exercise of managerial discretion, the case law has emphasized that discretionary decisions cannot be overturned unless they are 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.” - Citation: Commentary on the Statute, p. 19. - Tribunal references and legal principles preserved exactly: - The Tribunal recognized that “. . . selection of a staff member to fill a vacancy, like other decisions that involve weighing the suitability of a staff member to perform particular functions within the organization, is the province of the decision-making officials.” D’Aoust (No. 2), para. 72. - The Tribunal quoted the Commentary: “This principle [of deference to managerial discretion] is particularly significant with respect to decisions which involve an assessment of an employee’s qualifications and abilities, such as promotion decisions and dismissals for unsatisfactory performance. In this regard, administrative tribunals have emphasized that the determination of the adequacy of professional qualifications is a managerial, and not a judicial, responsibility.” Commentary on the Statute, p. 19. - Tribunal’s summary rule: “in reviewing selection decisions, the Tribunal may not substitute its own assessment of candidates’ merits for that of the competent Fund officials.” D’Aoust (No. 2), para. 73. - Tribunal noted that review will interfere only where there is “some fatal flaw, such as a formal or procedural defect, or a mistake of law or of fact.” - Obligation to observe internal law and general principles: - Tribunal reaffirmed that the organization “is bound to observe the elements of its internal law governing selection decisions, as well as applicable principles of international administrative law.” ### Applicability of Staff Bulletin No. 03/27 and joint Fund–World Bank process - Dispute over extent to which Staff Bulletin No. 03/27 governed the selection: - Fund accepts Staff Bulletin No. 03/27 governed some aspects (e.g., requirement that “[a]ll vacant positions starting at Deputy Division Chief/Assistant to the Director at Grade A14 up to Grade B4 must be advertised.”) - Fund asserts engagement of the Fund’s Review Committee was not required because the selectee was to be appointed as a World Bank staff member. - Record evidence and ambiguity: - Position Description circulated by HRD stated grade level as “B2 at the Fund or GH at the Bank.” (Emphasis supplied.) - External advertisement referred applicants to IMF recruitment website and displayed “International Monetary Fund” at top. - It is not clear from the record when, how or why the decision was taken to appoint the new Assistant Secretary as World Bank staff rather than IMF staff. - Fund Secretary suggested decision because “the position that [the former Assistant Secretary] occupied was a World Bank position.” (Tr. 437.) - SPM testified: “. . . the agreement at the time was let’s not worry about whether it’s a Bank or Fund person. Let’s just find a good person.” (Tr. 453.) “So we agreed that we would just advertise, and whatever candidate we chose we would then worry about how it would be paid . . . .” (Tr. 454.) “The agreement was we would work all that out after we got the best person.” (Tr. 455.) - Tribunal observation and procedural consequence: - With the exception of Applicant, all candidates advancing to the short list were external to both organizations. - Tribunal finds the record demonstrates that the Fund did not follow all of the requirements of Staff Bulletin No. 03/27 and poses the question whether those requirements governed the selection of the Assistant Secretary for Conferences in the BFCO. - In the absence of clarity in the Fund’s written law, the Tribunal turned to “generally recognized principles of international administrative law,” including the right to be heard (“audi alteram partem”), as “generally applicable” to decisions of international organizations. Commentary on the Statute, p. 18. *Extract from IMFAT judgment.* ### 109. The Tribunal often has drawn a link between generally recognized principles of ### 109. The Tribunal often has drawn a link between generally recognized principles of ### Link between generally recognized principles of international administrative law and written law - The Tribunal has repeatedly linked generally recognized principles of international administrative law (e.g., audi alteram partem, nondiscrimination) to the Fund’s written law (see paras. cited: Ms. “EE”, para. 196; Mr. “P” (No. 2), para. 152; Ms. “M” and Dr. “M”, para. 132). - Such principles require that procedures be fair and reasonable and, where they differ from written rules, affected staff be informed of departures from the written rules. ### BFCO selection process: applicable obligations and expectation of notice - The BFCO is a joint undertaking of the Fund and the World Bank; the Fund may not have followed every provision of its written law in a joint selection process, but any process must comply with generally recognized principles of international administrative law (para. 110). - At the start of recruitment it was indeterminate whether the selectee would carry an IMF or World Bank appointment; a Fund staff member could reasonably expect Fund rules to apply or to be informed of any departure (para. 111). - Tribunal finding: Applicant should have been informed of rules governing the selection process to the extent they varied from the Fund’s written rules; the Fund’s failure to do so was a failure of fair process (para. 111). ### Central question: consistency with fair and reasonable procedures - Applicant’s contention: selection was not carried out in accordance with the Fund’s internal law and fair procedures; alleged “procedural irregularities” rendered the selection decision invalid (para. 112). - Fund’s contention: process was “thoroughly and rigorously, in good faith and fully in keeping with Fund policy and practice”; allegations without merit (para. 112). - Applicant’s enumerated procedural defects (para. 113): - (a) vacancy not posted on Career Opportunities intranet site for Fund staff; - (b) persons who took shortlisting decision also took part in later selection process; - (c) timing of interviews (weeks preceding the 2007 Annual Meetings) unfairly disadvantaged Applicant; - (d) Applicant was asked questions not posed to other candidates; - (e) Fund’s Review Committee (pursuant to Staff Bulletin No. 03/27) took no role; - (f) Applicant received no written feedback at conclusion of process. ### Posting of the vacancy — rules, practice, and Tribunal findings - Staff Bulletin No. 03/27, p. 6: “All vacant positions starting at Deputy Division Chief/Assistant to the Director at Grade A14 up to Grade B4 [footnote omitted] must be advertised in the Career Opportunities (CO). [footnote omitted]” (para. 114). - Career Opportunities: Policy and Guidelines (January 1, 2003) (Revised on July 27, 2004): managerial positions at Grades A14-B4 must first be advertised internally in the CO before an external candidate can be considered and selected by the Review Committee (para. 114). - Facts: - The Assistant Secretary for Conferences position was advertised in March 2007 in the World Bank and externally, but not posted on the Fund’s internal website (para. 115). - Fund explanation: inability to use CO because posting requires a budgeted Fund vacancy, which departure of the incumbent did not create since she was a World Bank staff member (para. 115). - HRD emailed SPMs and ASPMs on March 27, 2007 asking them to inform staff about the position; closing date April 30 (para. 115). - Applicant learned of the advertisement from a colleague and submitted a timely application; Applicant alleges her ASPM informed her only on the closing date (para. 116). - Applicant produced documentation of “Bank-only” BFCO vacancies posted on the Fund intranet without a vacancy number, and the external advertisement referred candidates to the Fund’s external recruitment website, raising questions about the Fund’s explanation (para. 117). - Tribunal conclusions: - It was a failure of fair process for the Fund not to have informed Applicant sooner that (1) the vacancy would be opened to a competitive selection process, and (2) the selection procedures would deviate from usual Fund staff appointment procedures (para. 119). - The Fund’s “technical reasons” for non-publication on CO were deemed formalistic and insensitive given the importance of notifying staff; internal candidates at B2 level are to benefit from procedures at least as favorable as external candidates (para. 120). - The vacancy was publicly advertised in a paid commercial publication but not on the Fund’s internal website; Tribunal considers failure to publish on CO a third failure of fair process by the Fund (para. 120). ### Interview and selection procedures: competencies, ratings, and fairness challenges - Selection Panels rated six shortlisted candidates on competencies: (1) strategic vision/ability to innovate; (2) leadership/drive for results; (3) proven supervisory skills; (4) success in translating plans into action; (5) good judgment in assessing trade-offs; (6) proven interpersonal skills; (7) excellent communication skills (para. 121). - Applicant was not rated highly; selected candidate’s interview performance was “outstanding” and rated highest by both Panels (para. 122). - Tribunal assessment of specific allegations: - Shortlisting decision (paras. 123–126): - Applicant initially not shortlisted; advanced only after intervention by her SPM. - Applicant contends unfair prejudice because persons who decided the short list also participated in later selection. - Respondent: no rule prohibits such participation; structured selection with Fund and Bank representatives addresses concern. - Tribunal: it was not unfair for shortlisting participants to serve on Selection Panels; Applicant did not cite contrary international administrative jurisprudence; SPM’s positive view aligned with panel consensus (paras. 124–126). - Timing of interviews (paras. 127–131): - Applicant contends timing (weeks before 2007 Annual Meetings, for which she had lead responsibility) unfairly disadvantaged her. - Fund: hiring departments may schedule selection to meet business needs. - IMF Secretary testimony suggested delay allowed Applicant to demonstrate competence during the 2007 Annual Meetings and thus could favor her (para. 128; Tr. 363-365). - Documentary record: recommendation from Selection Panels to Secretaries made before the 2007 Annual Meetings; interviews conducted September 20 and 28, 2007; selection recommended October 9, 2007; Annual Meetings October 20-22, 2007 (para. 129). - SPM testimony indicated Applicant’s BFCO experience weighed in shortlisting and had “weight” in consideration (para. 130; Tr. 556-557). - Tribunal: impracticable to require selection timing to accommodate candidates’ current employment exigencies; cannot find process unfair on timing grounds (para. 131). - Different questions posed to Applicant (paras. 132–136): - Applicant alleges she was asked a different set of questions and held to a different standard, including issues about inter-organizational balance/power. - Fund: tailored follow-up questions are typical; additional questions could advantage Applicant by allowing her to stand out. - Documentation: core questions were prepared in advance for all candidates; unstructured elements allowed panelists to pursue candidate-specific lines of inquiry (correspondence dated July 20, 2007) (para. 134). - Tribunal jurisprudence: Fund’s internal law allows discretion in selection elements, but discretion is not unlimited; interview methods must not prevent candidates from providing relevant information (paras. 135). - Tribunal conclusion: follow-up questions to explore a candidate’s particular strengths or weaknesses are permissible and relevant; Applicant did not show that questioning on BFCO experience made the process unfair (para. 136). - Role of Review Committee (paras. 137–139): - Applicant contends process was defective because Fund’s Review Committee (RC), charged under Staff Bulletin No. 03/27 with examining qualifications for B-level vacancies, took no role (para. 137). - Fund response: because the selectee was appointed as a World Bank staff member and not being “proposed for a B-level vacancy” at the Fund, RC involvement was not required under Fund rules (para. 138). - Tribunal observation: at the time the selection process was ongoing, it had not been determined that the appointment would be a World Bank appointment; the Fund’s argument overlooks the interest of Fund staff in having RC involvement to ensure careful and fair selection for senior promotions and appointments (para. 138). ### Aggregate Tribunal findings on fair process failures (identified in these paras) - Failures of fair process identified by the Tribunal in the selection process for Assistant Secretary for Conferences: - Failure to inform Applicant that the vacancy would be opened to a competitive selection process and that selection procedures would deviate from usual Fund rules (para. 119). - Failure to inform Applicant sooner about the governing rules when they deviated from Fund written rules (para. 119). - Failure to publish the vacancy on the Fund’s Career Opportunities intranet site, despite a paid external advertisement (para. 120). *Excerpt from IMF Administrative Tribunal judgment (paras. 109–138).* ### 139. The absence of the engagement of the RC represents a significant difference between the ### 139–164: The absence of the Review Committee, notification, and abolition of the Advisor position in the BFCO ### Role of the Review Committee (RC) in senior appointment processes - Staff Bulletin No. 03/27 (p. 7) requires the RC to “seek[] to ensure high quality in promotions and appointments for managerial positions and to foster a mix of skills, experience, and diversity.” - The RC “plays a role in ‘all external appointments at Grades B1-B2’ and ‘all promotions from Grade B1 to B2.’” - Staff Bulletin No. 03/07 (p. 1) states that “[t]he [Review] Committee’s intervention earlier in the process will enable the RC to have substantive input in the selection process.” - The RC reviews the qualifications of the three highest-ranked candidates and performs “due diligence,” including review of past performance. - Finding: Had the Assistant Secretary position been a Fund appointment, the RC process would have been required. ### Fairness of selection procedures and the absence of RC engagement - The absence of RC engagement represents a significant difference between the BFCO selection process and the Fund’s selection process prescribed by Staff Bulletin No. 03/27. - The Tribunal concluded that failing to inform the Applicant of the difference in selection procedures from those in the Fund’s rules was a failure of fair process. - However, because the Applicant was not among the top three candidates identified by either independent Selection Panel, her candidacy would not have been considered by the RC under the Fund’s rules. - The Tribunal found that the employment of two independent Selection Panels, which interviewed candidates independently, largely served as a guarantor of integrity comparable to the RC’s role. - Conclusion: No failure of fair treatment was found in the decision not to engage the RC for the Assistant Secretary for Conferences in the BFCO. - The Tribunal cited D’Aoust (No. 2), para. 111, noting “intrinsic procedural fairness” where candidates were asked the same questions, panels scored independently, and a distinct scoring gap existed between top and lower-ranked candidates. ### Notification and feedback following non-selection - Applicant acknowledges being informed in person of her non-selection in a meeting with her Department Director and SPM, but contends no explanation was provided and she could not engage in meaningful discussion due to surprise. - Respondent characterized the claim as “form over substance,” asserting Applicant had ample opportunity to discuss reasons at the meeting. - SPM testimony dated the meeting to “late January or early February 2008,” and described it as “an uncomfortable, difficult meeting” in which Applicant was “shocked and surprised.” (Tr. 484.) - Staff Bulletin No. 03/07, para. 31 states the RC provides feedback to unsuccessful internal candidates, including reasons for non-endorsement, prospects for future consideration, and steps to strengthen future candidacy. - The Career Opportunities: Policy and Guidelines refer to “feedback forms,” which must be returned to HRD before a vacancy is closed. - Finding: Respondent has not demonstrated compliance with the obligation to give meaningful feedback. - The Tribunal considered written feedback unnecessary if the Fund could establish that the Staff Bulletin’s feedback content had been fully provided. - No contemporaneous note of the verbal feedback appears to have been kept by the SPM; therefore the Tribunal could not determine whether the feedback contemplated by the Staff Bulletin was properly provided. - Conclusion: The Fund’s failure to establish that it provided meaningful feedback as contemplated by Staff Bulletin No. 03/27, para. 31, constitutes a further failure of fair process. ### Abolition of the Applicant’s Advisor position as part of the 2008 downsizing - Applicant was informed by HRD on July 28, 2008 that her “. . . position will be abolished effective September 1, 2008 in connection with the Fund’s restructuring exercise.” (Memorandum from HRD Director to Applicant, July 28, 2008.) - On August 28, 2008 the HRD Director wrote to “. . . confirm the arrangements for mandatory separations in connection with the elimination of your position in the context of the Fund’s downsizing exercise.” (Letter from HRD Director to Applicant, August 28, 2008.) - Staff Bulletin No. 08/03 explained mandatory separations under the downsizing are implemented under the Fund’s authority in GAO No. 16. - Staff Bulletin No. 08/03 described three types of mandatory separations: - abolition of position: positions may be abolished when the function will no longer be performed by the Fund - reduction in force: the Fund will continue to perform the function, but the number of positions will be reduced - redesign of position: a specific position is redesigned and the incumbent is no longer qualified to meet new requirements - The restructuring exercise involved reductions in force and abolitions of position depending on business needs and priorities; HRD compiled lists of fungible categories for reductions (Annex II). - Applicant argued that because excess B-level staff volunteered, she should have been reassigned rather than separated and that she was treated differently from other staff. - Fund’s response: the downsizing aimed to restructure the Fund in light of mission and institutional priorities; reductions were not simply across-the-board. - Testimony and contemporaneous documentation: - Managing Director noted voluntary phase may still require “a few mandatory separations in some specialized work groups.” (Message to staff on the Voluntary Separation Phase, April 29, 2008.) - Department Director stated staffing ceilings were imposed by Management and the Budget and Planning Office. (Tr. 375.) - The Department decided to eliminate one B-level position in the SEC Front Office and another in the BFCO to do “the least damage to the institution.” (Tr. 432-433.) - SPM memoranda and Department Director memoranda indicate intent to abolish Applicant’s B-level position effective September 1 as part of achieving steady state targets and mandatory separations (Memorandum from SPM to Acting HRD Director, June 13, 2008; Memorandum from Department Director to HRD Director, April 23, 2008). - SPM notes from April 2008 meetings record warnings to Applicant that her position “may well be abolished” and that the decision was “not a reflection of her performance.” - Tribunal’s assessment: - The mandatory separation resulted from both a “reduction in force” (need to reduce Department B-level positions from nine to seven) and an “abolition of position” (decision that the Fund would no longer perform managerial functions in the BFCO). - The Fund’s explanations arise from a legitimate business rationale tied to management mandates and departmental ceilings. - The Tribunal concluded the Applicant did not establish that the decision to abolish her post was taken inconsistently with the rules governing the downsizing framework. ### Standard of review and final observations before next issues - The Tribunal reiterated that abolition of a post is an individual managerial decision reviewable only for abuse of discretion: it may be overturned 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. - Having concluded consistency with downsizing rules and legitimate business rationale, the Tribunal proceeded to consider whether the abolition was improperly motivated to deprive the Applicant of Fund employment. *Source: Judgment of the Tribunal (paras. 139–164).* ### 165. Applicant contends that SEC “planned to abolish the Applicant’s Advisor position (Grade ### j2012-1 - 165. ### Allegation of pretext in abolition of Applicant’s Advisor position - Applicant contends SEC “planned to abolish the Applicant’s Advisor position (Grade level B1) as of September 1, 2008 and then open an essentially identical position at the A14/A15 level by May 1, 2010” for which she was not considered; Applicant asserts the abolition decision was “pretextual and directed at Applicant” and therefore an abuse of discretion. (para. 165) - Respondent (the Fund) maintains the decision to abolish Applicant’s position was based on proper business considerations and was not pretextual. (para. 166) ### Business rationale, precedent and Tribunal guidance - Fund’s stated justification: - SEC required reduction of B-level positions Department-wide from nine to seven pursuant to the 2008 downsizing and could not justify retaining two B-level positions in the BFCO. (para. 166) - “The staffing requirements of the BFCO have shifted in recent years (the Joint Secretariat is much smaller than in previous years, due largely to advances in technology and changing work practices) and we cannot justify maintaining two B-level staff in a very small office.” (Memorandum from Department Director to HRD Director, July 24, 2008.) (para. 169) - Department Director: for sixteen months (January 2007-May 2008), BFCO functioned with one B-level staff while the other B-level position remained vacant; given satisfactory operation, confident duties can be carried out with just one B-level position; prepared to provide more direct support from Immediate Office and Administrative Services Division of SEC. (Memorandum from Department Director to HRD Director, July 24, 2008.) (para. 170) - Tribunal reliance on prior decisions: - In Mr. “F”, Tribunal examined merit of Fund’s rationale for structural changes and concluded reasons were credible and sufficient to justify abolition of that position. (paras. 167–168, 168 quoting Mr. “F”) - International administrative tribunal standards: restructuring is permissible to achieve effectiveness or savings but abolitions must be justified by real needs and not immediately followed by creation of equivalent posts. (Mrs. A.M.I., ILOAT Judgment No. 2156 (2002), Consideration 8; Njovens v. IBRD, WBAT Decision No. 294 (2003)). (para. 171) ### Whether a new, essentially identical position was created - Department memoranda and organization chart: - SPM memorandum (June 13, 2008) stated abolition of the Fund’s B-level Conferences Advisor position was necessary to meet steady state target for B-level staff; also contemplated assigning an additional A-14 staff member from SEC to BFCO to provide additional support and facilitate transfer of IMFC preparations out of SEC to BFCO; anticipated these changes in “mid FY 2009 or early FY 2010.” Attachment “Organization Chart (Steady State: FY 2010/2011)” showed two SEC staff listed in BFCO: one at Grade A9-A13 and one at Grade A14/A15. (para. 173) - Testimony and explanations: - Fund Secretary: sentence about possibly putting someone at A-15 was “just a theoretical possibility, and we weren’t thinking that Ms. Sachdev would do it. It could have been somebody else.” (Tr. 409). (para. 174) - SPM: consideration was to transfer an existing A-14 laterally from the front office to assist BFCO; “it wasn’t actually a new position. We would deduct one from—I mean it was just a lateral transfer over to help.” That transfer “didn’t” happen because “We couldn’t afford to let him go.” (Tr. 523). (para. 174) - Fund’s post-restructuring position: - Prior to restructuring, Fund held one B-level and one A9-A-13 in BFCO. B-level position abolished; considered assigning an additional A-14 to BFCO, but asked head of BFCO to manage reduced workload with one A9-13 position only, which “is now vacant and covered by a Contractual. The A14 position has not been established.” (Email from SPM to Fund’s counsel, August 11, 2010.) (para. 176) - Tribunal conclusion: - Consideration of deploying an existing lower-level staff member is not equivalent to a plan to replace Applicant’s abolished position with one that did not materially differ. The Fund articulated sound business reasons in the context of the 2008 downsizing and streamlining of BFCO operations to relinquish prior managerial presence. Applicant produced no evidence of improper motivation. Tribunal concludes Applicant’s challenge to the abolition cannot be sustained. (paras. 175–177) ### Procedural fairness: notice and compliance with internal law (GAO No. 16, Rev. 6) - Applicant’s procedural complaints: - Alleged failures: (a) no reasonable notice of abolition; (b) denial of requests to defer effective date, to provide increased separation benefits, and to exhaust accrued annual leave; (c) failure to meet obligation under GAO No. 16, Rev. 6, Section 12.02 (Job Search and Retraining) to assist in seeking an alternative position. (para. 178) - Fund’s position: - Maintains abolition and separation were in accordance with fair procedures and governing internal law, including adequate notice; no discrimination in denying postponement requests; SBF entitlement calculation followed rules; Fund met obligation to assist in reassignment. (para. 179) - Notice timing: - Tribunal precedent (Mr. “F”): summary notice given days before effective date constituted compensable harm; Tribunal held staff should be given reasonable notice when decision first conveyed to enable contesting propriety or equity. (paras. 181–182) - 2008 downsizing rule adopted by Fund: - “Following a one-month pre-notification period, those staff will begin a six-month period for job search/reassignment, to be followed by a two-month notice period prior to separation (or, if the staff member so chooses, the commencement of separation leave), if they are not able to find alternative employment at the Fund by the end of the job search period.” Staff Bulletin No. 08/03, p. 11. (para. 183) - Note: Revision 6 of GAO No. 16, issued concurrently with Staff Bulletin No. 08/03, “does not reflect amendment to the Notice provision or otherwise require a one-month pre-notification period.” (footnote in para. 186/183) - Applicant was notified by letter of July 28, 2008 (and earlier in a meeting) of abolition effective September 1, 2008, meeting the one-month pre-notification requirement of Staff Bulletin No. 08/03. Final request for abolition made July 24, 2008. Applicant used pre-notification period to request postponement and to communicate interest in reassignment through memoranda dated August 1, 11, 15 and 20, 2008. (paras. 184–185) - Applicant had “early warning” from April 2008 meetings where staffing reduction needs were discussed; Applicant testified she did not expect her position to be abolished based on those meetings. (para. 186) - Tribunal conclusion: the one-month pre-notification complied with Fund rules relating to abolition of posts under the 2008 downsizing and provided Applicant with reasonable notice. (para. 187) ### Equal treatment: refusal to defer abolition date, separation benefits, and exhaustion of accrued leave - Applicant contests denial of HRD Director decisions (August and September 2008) refusing her requests to: - (a) defer the effective date of abolition, - (b) provide increased separation benefits, - (c) exhaust accrued annual leave. (para. 188) - Respondent maintains denials were proper and non-discriminatory. (para. 188) - Timing of abolition date dispute: - Applicant argued that with the 2008 Annual Meetings just weeks away, “there were clear business reasons to extend the abolition of Applicant’s position.” (para. 189) - Respondent: the September 1, 2008 date was firm to enable meeting deadlines imposed by management and OBP. (para. 190) - Acting HRD Director: differing effective dates for mandatory separations of the 24 taken in 2008 were “determined by the various business needs relating to the positions/functions that are being affected here.” (Tr. 54-56). Timing of two B-level mandatory separations in HRD governed by need to manage the downsizing itself. (para. 191) *IMF Administrative Tribunal Judgment, j2012-1, paras. 165–191.* ### 192. The record of the case indicates that only two B-level staff members in addition to ### j2012-1 - 192 ### Timing and differential treatment of separations - Only two B-level staff members in addition to Applicant were mandatorily separated as part of the 2008 Fund-wide downsizing; the record provides evidence relating to the timing and individual circumstances of those separations. (See Email from Fund’s counsel to Grievance Committee, August 17, 2010; Tr. 108, 236-237.) - The Tribunal accepts the Fund’s contention that “. . . difference in treatment between Applicant and the B-level staff members in HRD whose positions were abolished was directly related to the business objectives that those abolitions were intended to achieve.” - Staff Bulletin No. 08/03, Supplement 1 (The Framework for the Downsizing Exercise: Supplement) (March 21, 2008), p. 2, states as to “[o]ngoing restructuring efforts and timing of separations” that: - “[i]n certain departments, particularly those that perform specialized functions (e.g., HRD, FIN, and LEG), there will be ongoing restructuring efforts that will carry on into FY 2010 or FY 2011. Because of the business needs of these departments, the elimination of certain positions will not take place until a later stage in the restructuring process.” - Volunteers in the voluntary phase were invited to elect a preferred last day of active duty falling within the 12-month period from May 14, 2008 to May 13, 2009; departments could request deferral of the separation date as a condition of accepting the offer of voluntary separation. (Staff Bulletin No. 08/03, p. 2; pp. 2-3.) ### Managerial discretion, reasons given, and procedural fairness - The determination of the date of abolition of Applicant’s post involved managerial discretion; the Tribunal’s standard: whether the decision was “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.” (Commentary on the Statute, p. 19.) - HRD Director’s pre-notification and subsequent memoranda: - Memorandum from HRD Director to Applicant, July 28, 2008: stated “The only flexibility the department had was the effective date, which has been set, taking into account the need to ensure an adequate period of transition in the Bank/Fund Conferences Office (BFCO).” - Applicant requested delay; HRD Director denied request stating: “The abolition of your position is linked to budgetary and organizational constraints which, unfortunately, offer no scope for flexibility once the effective date is set.” (Memoranda dated August 13 and September 5, 2008.) - Department managers believed the position needed to be abolished by September 1, 2008 so that it would be “off the books” for budgetary purposes by January 1, 2009; original intention had been to have Applicant stay on through the fall Annual Meetings. (Tr. 502-503; 533-534.) - Comparison case Pyne: the Fund accommodated a deferral in timing where a staff member volunteered for mandatory separation under GAO No. 16, Section 12, so she would reach age 50 before expiration of separation leave and thereby gain retiree medical coverage and a “Rule of 75” pension. Pyne, para. 26. - The Tribunal finds the Fund’s reason for refusal (“linked to budgetary and organizational constraints . . . offer no scope for flexibility once the effective date is set”) lacks explanatory depth but, on the record, the decision was not arbitrary or capricious. - Procedural notice: Downsizing Framework provided one calendar month’s notice for mandatory abolition of posts; Applicant received one calendar month’s notice and an extended notice period under Section 12.03 of GAO No. 16, Rev 6. The timing of abolition was not shown to be unfair, unreasonable, or an abuse of managerial discretion. ### SBF (Separation Benefit Fund) benefits - Applicant requested SBF entitlement to include prior contractual service; HRD Director denied request (Memoranda dated August 13 and September 5, 2008). - The Fund’s position: internal law limits employment counted toward SBF to employment as a Fund staff member; mandatory and discretionary SBF payments are subject to internal audit. (Tr. 45, 197-198.) - Tribunal finding: no legal basis to include contractual service prior to appointment as staff for SBF calculation; the decision not to include contractual service is sustained. ### Accrued annual leave - GAO No. 13 (Leave Policies), Rev. 6 (September 29, 2006), Section 3.07 states: - “3.07 Payment in Lieu of Accumulated Annual Leave. Upon separation from the Fund, a staff member (or his beneficiaries in the event of death) shall be paid a lump sum equivalent to and in lieu of his accrued annual leave, up to a maximum of 60 work days, subject to a reduction by any outstanding amounts owed by the staff member to the Fund.” - Applicant asserts she had an additional 72.6 days of unused annual leave for which she seeks reimbursement. - Respondent’s position: mandatory separation circumstances differ from voluntary retirements; difference in treatment is connected to sound business reasons and is not discriminatory. - Tribunal finding: Applicant’s accrued leave entitlement was dealt with in accordance with Fund written law; no unfair or unreasonable action in not affording an exception. ### Obligation to assist in reassignment (GAO No. 16, Section 12.02) - GAO No. 16, Section 12.02 provides: - (i) After notice of separation, the Fund will assist the affected staff member over a period of not less than six months in seeking another suitable position; staff will have access to information on available positions; Fund would assist in identifying suitable vacancies; staff subject to separation considered along with other applicants; if equally qualified, preference given to staff subject to separation. - (ii) During the job search and reassignment period, the Fund shall provide appropriate training if such training will facilitate selection for an existing or known prospective vacant position. - (iii) If all efforts to reassign fail, appointment shall be terminated. - The Tribunal’s interpretive statements and precedents: - The obligation requires “genuine, serious, and pro-active efforts” in reassignment; the search period is not a mere formality and reassignment is preferable to separation. (Pyne, para. 64; para. 65.) - Prior case Mr. “F”: evidence on reassignment assistance was “not clear-cut”; fault lay with both parties; no compensation awarded. (Mr. “F”, para. 117.) - Pyne: Fund failed to inquire about Applicant’s interest in reassignment; applicant’s own conduct (plans to continue career outside the Fund) precluded relief where no suitable position existed. (Pyne, paras. 94, 99.) - Marshall (WBAT Decision No. 226 (2000), para. 40): relief awarded where vacant posts and their descriptions were sufficiently within applicant’s obvious interest and capacity that respondent could reasonably have been expected to call them to the applicant’s attention. - Jakub (WBAT): compensation awarded where applicant was not given opportunity to compete for a position in his department for which he should have been considered. - F (No. 2) (WBAT Decision No. 347 (2006), para. 51): no relief where applicant did not contend there were vacancies he possessed requisite qualifications for; budgetary constraints and reductions in force can hinder reassignment. - The Tribunal: organization must make “genuine efforts to help the affected staff member to find a position. But it is not obliged to guarantee that a position will be found.” (Pyne, para. 97; quoting Jakub, para. 56.) ### Tribunal conclusions on reassignment assistance and relief - The Tribunal applies the standards from Pyne, Mr. “F”, Marshall, Jakub, and related jurisprudence to evaluate whether the Fund met its obligations under GAO No. 16, Section 12.02. - The duty to assist may be heightened for long-serving staff with strong performance records; jurisprudence recognizes special consideration for long service and high performance (Marshall; Hermann, ILOAT Judgment No. 133 (1969), Consideration 4). *Judgment of the Tribunal, paras. 192–217.* ### 218. In the instant case, there can be no question that Applicant took affirmative efforts to re- ### j2012-1 - 218. In the instant case, there can be no question that Applicant took affirmative efforts to re- ### Applicant’s initiative and job-search efforts - Applicant took affirmative efforts to re-position herself within the Fund following abolition of her post (notes of April 2008 meetings). - April 2008: Department Director and SPM were on notice of Applicant’s interest in reassignment and Applicant regarded departmental assistance as part of equitable obligations (SPM’s notes of April 2008 meetings). - July 28, 2008: Applicant received the pre-notification letter and brought her interest in reassignment to the HRD Director and later the Acting HRD Director. - August 20, 2008: Applicant wrote she was “still very interested in remaining in the Fund if an appropriate opportunity arises,” and noted she was the “main source of income for my family . . . [and] need[ed] to continue to work.” (Memorandum from Applicant to HRD Director, August 20, 2008.) - September 5, 2008: HRD Director acknowledged Applicant’s “interest in remaining in the Fund,” and encouraged use of Fund career counselors, outplacement services, and reimbursement for training and travel costs. (Memorandum from HRD Director to Applicant, September 5, 2008.) - October 3, 2008: Applicant met with the Acting HRD Director and “emphasized that she has work experience in other parts of the organization, such as working in TGS [Technology and General Services] and FIN [Finance], and asked that HRD help her find another opportunity in the Fund to enable her to continue her career.” (Memorandum for Files, October 3, 2008.) - Applicant applied for six positions in the Fund: one at B1, one at B1/B2, and four at A15, submitting applications independently without HRD assistance (Applicant’s assertion). ### HRD involvement, staffing and process issues - A Human Resources Officer (HRO) was assigned to Applicant’s case; Applicant contends assistance was inappropriate for a B-level staff member and “left to a very junior level HRD person . . . who was not qualified to help a B-level staff.” - HRD Division Chief testimony on B-level reassignment assistance: - B-level cases typically require senior HRD officials dealing with Directors, Deputy Directors and SPMs. - An HRO who assists A-level staff interacts at the ASPM level; B-level cases “would go directly to the SPM” and “would be somebody senior in HRD who would do that.” (Tr. 226; Tr. 232; Tr. 208.) - December 2008: HRO offered to send Applicant’s resume to the World Bank and the IFC and to email it to Fund departments; Applicant had already contacted departments and HRO contacts did not produce responses (Applicant’s account). - Documentation confirms December 2008 meeting and forwarding of Applicant’s resume; HRO referred Applicant to outplacement services and addressed job search travel questions. ### Policy framework and Tribunal assessment of Fund obligations - GAO No. 16 revision (in connection with 2008 downsizing) strengthened Section 12.02: - New text: “If the staff member subject to separation is considered to be equally qualified for the position as another applicant who is not being separated, preference will be given to the staff member who is subject to separation.” - Staff Bulletin No. 08/03 highlighted New Section 12.02 and included “Job Search for Staff Subject to Separation,” stating HRD will assist affected staff in identifying suitable vacancies based on qualifications and interests. - Acting HRD Director’s testimony acknowledged: - Expectation that hiring managers be familiar with regulations and requirements. - HRD would “keep that staff member in mind and periodically remind hiring managers” but there was no formal process of matching separating staff with vacancies. (Tr. 94; Tr. 96.) - Tribunal’s view: In absence of active HRD involvement and a formal matching process, it is doubtful Applicant benefited from the preference intended by revised GAO No. 16. - Precedent distinction: - In Mr. “F”, para. 117, and Pyne, para. 99, Tribunal denied relief where staff lacked initiative. - In the instant case, record demonstrates Applicant took initiative to re-position herself. - Tribunal conclusion: “the Fund failed to meet the obligations imposed upon it by GAO No. 16, in respect of all separations governed by Section 12 of the GAO, to take steps proactively to assist Applicant in seeking to attain another suitable position to which she could be assigned.” ### World Bank vacancy issue and cross-institution considerations - Applicant alleges an A14-equivalent vacancy at the World Bank suitable for her was not communicated to her by the Fund Secretary; she asserts she would have accepted the position. - Fund’s position: - Not required to alert separating staff to external opportunities. - Position’s equivalence to Grade A14 not substantiated on the record; Fund Secretary reasonably accepted World Bank Secretary’s judgment that position was not suited to Applicant. - Testimony regarding Bank inquiries: - Fund Secretary: World Bank Secretary reported any absorption would have to be “at a lower grade and not at her current grade.” (Tr. 392.) - SPM: World Bank Secretary identified only lower-level positions; “there were no B level equivalent jobs.” (Tr. 507.) - Applicant’s willingness to accept lower grade: - Applicant testified she expressed interest in serving as an A-15 to help with B-level reductions (Tr. 20). - Applicant applied for four A15 vacancies. - Pleadings record: Applicant “did, in fact, look at vacancies at both the Fund and the World Bank during her job search period, including applying for several lower-level positions [Tr. at 691-92, 694-95]” (Fund’s pleadings). - Fund Secretary’s hearing testimony: The possibility of continuing in BFCO at an A-15 “wasn’t really considered” and the presumption was “that that would not be acceptable to her.” (Tr. 392.) - GAO No. 11, Rev. 4 (January 16, 2004), Section 6.03 and Section 7.06.1 provisions: - Section 6.03 contemplates offering a position at a lower grade as an alternative to termination where a staff member is qualified and a vacancy is available. - Section 7.06.1 provides that a staff member who accepts a position at a lower grade “shall retain the higher grade, and his or her salary shall be administered in the salary range corresponding to that higher grade, for a period of two years.” - International administrative jurisprudence support: Marshall, para. 41—under World Bank rule, lower-graded positions should have been called to staff member’s attention so she could determine interest. - Question posed by Tribunal: In the unusual circumstances of joint Bank/Fund employment, did the Fund’s obligation under GAO No. 16, Section 12.02, extend to apprising Applicant of World Bank vacancies of which it had knowledge? ### Key findings and implications - Findings: - Applicant demonstrated initiative in pursuing reassignment within the Fund (April 2008 meetings; August 20, 2008 memorandum; October 3, 2008 meeting; six applications submitted). - HRD efforts lacked a formal matching process for separating staff and did not provide the senior-level HRD involvement typically required for B-level reassignment cases. - GAO No. 16, Section 12.02 revision created a preference for equally qualified separating staff, but absence of formal HRD matching and active involvement likely nullified intended benefit for Applicant. - Evidence indicates World Bank inquiry yielded only lower-grade options; Fund managers did not convey possible lower-graded Bank opportunities to Applicant despite her expressed willingness to consider A15 positions. - Implications: - When internal policy (GAO No. 16, Section 12.02) creates a preference for separating staff, effective procedural mechanisms (formal vacancy-matching and senior HRD engagement for B-level cases) are necessary to operationalize that preference. - In joint or cross-institutional employment contexts, clarity is required regarding whether and how external vacancies brought to the Fund’s attention must be communicated to affected staff. *Tribunal findings and documentary record summarized from the grievance proceedings and GAO No. 16 and GAO No. 11 provisions as presented in the case file.* ### Section 7. Salary Administration ### Section 7. Salary Administration ### 7.06.1 Reclassification and Assignment at Lower Grade - A staff member whose position has been reclassified at a lower grade under Section 6.02, or who has accepted a position at a lower grade as an alternative to termination under Section 6.03, or who has been assigned to a position at a lower grade under Section 6.04 shall retain the higher grade, and his or her salary shall be administered in the salary range corresponding to that higher grade, for a period of two years. - If, at the end of that two-year period, his or her salary is within the salary range corresponding to the highest grade of the range of the new or reclassified position, it will thereafter be administered within that salary range (example provided: if a staff member at Grade A12 moves to a position graded at A10/A11, the staff member’s grade will be Grade A11). - If the staff member’s salary is more than the maximum of the salary range for the highest grade of the new or reclassified position, the salary shall be reviewed and adjusted in accordance with the provisions of Section 7.04, provided that increases during the period in which the salary remains above the maximum of the range for the new grade shall not exceed one-half of the annual percentage increase in the salary structure or the percentage increase applicable to staff with comparable performance in the highest quartile of the salary range, whichever is smaller. - If subsequently the staff member is appointed to a position at a higher grade, up to and including the grade of his or her prior position, he or she shall immediately be assigned that grade and not be subject to any conditions such as time-in-grade requirements. ### Tribunal Findings on Procedural Failures and Reassignment Assistance - In the case concerning Applicant employed in a joint initiative of the Fund and the Bank (the BFCO), the Tribunal found that failure to notify Applicant of a possible vacancy at the Bank of which the Fund was aware was unreasonable and unfair to Applicant. - The fact that the opportunity that arose may have been at a lower grade was not determinative; Applicant testified grade would not have been an obstacle to her interest in the position. - The Tribunal found it unreasonable and in breach of the Fund’s obligations under GAO No. 16, Section 12.02, for the Fund not to have brought such vacancies to Applicant’s attention, especially given the scarcity of B-level opportunities at the time of Applicant’s redundancy. - Evidence showed a possible Fund position in the BFCO at Grade A14/A15 did not materialize; therefore, there could be no failure to alert Applicant to such a non-existent position. - Applicant was a long-serving staff member who, for some eighteen months (including more than six months after non-selection), performed satisfactorily in B2-level Assistant Secretary functions while continuing as B1 Advisor. - Applicant promptly expressed desire to remain a staff member and sought reassignment assistance from HRD; the Fund’s response was characterized as weak and inappropriate. - Applicant was the only B-level staff member seeking reassignment due to mandatory separation under the downsizing and did not receive B-level assistance advantages nor apparent application of the Fund’s preference rule for equally qualified redundant staff. - When the World Bank Secretary informed Applicant’s Department Director and SPM of potential vacancies, those officials declined to communicate this information to Applicant. - The Tribunal concluded these actions and inactions amounted to a serious violation of the Fund’s obligation under GAO No. 16, Section 12.02, to provide proactive assistance in reassignment of a staff member whose position has been abolished. ### Tribunal Conclusions - Applicant did not prove wrongful denial of appointment as Assistant Secretary for Conferences (BFCO) nor wrongful abolition of her Advisor position as part of the 2008 downsizing; therefore, rescission of those decisions was not ordered. - The Tribunal concluded Applicant’s non-selection was marked by a series of failures of fair process, compounded by a serious breach of GAO No. 16, Section 12.02, in failing proactively to assist Applicant in seeking reassignment. - Salient deficiencies identified: - Failure to notify Applicant of decision to adopt a new approach to appointment of the Assistant Secretary. - Failure to inform Applicant of the selection process, including how it differed from Fund rules and that a Review Committee process would not apply. - Failure to post the advertisement for the vacancy of Assistant Secretary on the Fund’s Career Opportunities intranet site. - Failure to demonstrate compliance with obligation to provide meaningful feedback following non-selection, as contemplated by Staff Bulletin No. 03/27, para. 31. - Failure, in breach of GAO No. 16, Section 12.02, to provide proactive assistance in finding “another suitable position to which [s]he may be reassigned,” including failure to inform Applicant of possible suitable vacancies at the World Bank at a lower level. ### Remedies and Awards - The Tribunal applied Article XIV, Section 1, of the Statute regarding remedial powers to prescribe rescission and other measures, and noted precedent allowing relief for procedural irregularity while sustaining the underlying decision. - The Tribunal concluded Applicant was entitled to compensation for failures in fair treatment in the amount of $75,000. - On legal fees and costs: - Applicant submitted a statement totaling $84,395.45 in legal fees and costs, approximately half relating to representation in Grievance Committee proceedings. - The Tribunal noted precedent allowing awards for fees incurred in proceedings antecedent to Tribunal review. - Taking into account that Applicant prevailed in part and that costs were likely higher due to change of counsel after Grievance proceedings (an increase the Fund need not bear), the Tribunal awarded Applicant seventy-five percent of her legal fees and costs incurred. - The Fund shall pay Ms. Sachdev $63,296.59, being 75% of the total amount of legal fees and costs incurred. ### Final Decision (Administrative Tribunal of the IMF) - The Tribunal unanimously decided: 1. The Fund’s decision not to select Ms. Sachdev for Assistant Secretary for Conferences in the BFCO at Grade B2 is sustained. 2. The Fund’s decision to abolish Ms. Sachdev’s Advisor for Conferences position in the BFCO at Grade B1 as part of the 2008 Fund-wide downsizing exercise is sustained. 3. Ms. Sachdev is entitled to compensation for specified failures of fair process (enumerated) and for the Fund’s breach of GAO No. 16, Section 12.02, including failure to provide information about possible World Bank vacancies. 4. Ms. Sachdev is awarded $75,000 as compensation for these procedural failures and breach of the rules of the Fund. 5. The Fund shall also pay Ms. Sachdev $63,296.59, being 75% of the total legal fees and costs incurred by Ms. Sachdev in this case. - Judgment signed in Washington, D.C., March 6, 2012, by Catherine M. O’Regan (President), Andrés Rigo Sureda (Judge), and Jan Paulsson (Judge); Celia Goldman, Registrar. --- _Source: https://www.imf.org/-/media/files/imfat/j2012-1.pdf_