## j2013-2

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### Overview and decision context
- Administrative Tribunal of the International Monetary Fund met on March 12 and 13, 2013, to adjudge the Application of Mr. Brian Tosko Bello v. International Monetary Fund.
- Tribunal panel: Judge Catherine M. O’Regan, President; Judges Edith Brown Weiss and Francisco Orrego Vicuña.
- Applicant represented by Ms. Veronika Nippe-Johnson, Schott Johnson, LLP. Respondent represented by Ms. Jennifer Lester, Assistant General Counsel, and Ms. Melissa Su Thomas, Counsel, IMF Legal Department.
- Applicant filed an Application on April 12, 2012; transmitted to Respondent on April 13, 2012. Key procedural filings and dates:
  - Respondent’s Motion for Summary Dismissal: May 14, 2012.
  - Applicant’s Objection to Motion: June 15, 2012.
  - Tribunal Judgment No. 2012-3 (Tosko Bello I) denying Motion: September 11, 2012.
  - Respondent’s Answer: October 31, 2012.
  - Applicant’s Reply: December 3, 2012.
  - Fund’s Rejoinder: January 3, 2013.
  - Additional document by Applicant accepted February 15, 2013; Fund response February 28, 2013.

### Applicant’s claims and requested relief
- Principal challenges:
  - Challenge to Fund policy not to re-hire former staff who separated voluntarily under the 2008 Fund-wide downsizing program, characterized as both a “regulatory decision” and as applied in an “individual decision.”
  - Allegation that the re-hiring ban contradicted information provided on the Exploring Your Options (EYO) intranet and was relied upon in opting for voluntary separation.
  - Allegation that the policy lacked proper business rationale and impermissibly discriminated against 2008 volunteers vis-à-vis other former Fund staff.
  - Contention that the Fund failed to announce the policy, rendering it invalid per se.
- Relief sought:
  - Rescission of the HRD Director’s January 12, 2012 decision finding Applicant ineligible to compete for a contractual position.
  - Rescission of the policy prohibiting re-hiring (contractual or otherwise) of former staff who separated under the 2008 downsizing program.
  - Monetary compensation in the amount of one year’s salary.
  - Legal fees and costs pursuant to Article XIV, Section 4 of the Tribunal’s Statute if Application found well-founded.

### Fund position (summary)
- The re-hiring exclusion for 2008 downsizing volunteers was a legitimate exercise of managerial discretion with a reasonable business purpose (mitigating reputational risks).
- Distinctions among former staff are rationally related to business purpose.
- No commitment was made that hiring policies would not be modified.
- Policy was properly communicated and applied; Applicant suffered no harm from communication method.

### Factual background: 2008 downsizing and EYO
- Applicant began employment: March 1, 2001.
- 2008 downsizing volunteer window: March 1-April 21, 2008.
- Volunteers indicated preferred last day within May 14, 2008–May 13, 2009.
- Some 492 volunteers separated under the 2008 downsizing; Applicant one of those volunteers.
- Separation benefit to Applicant: lump-sum payment equivalent to 7.5 months of his net annual salary; separation effective May 13, 2009.
- EYO intranet Q&A posted February 29, 2008 stated: “No. The Fund has no prohibition from being reemployed in the future because you have taken a separation package. You may not be reemployed at the Fund during the separation leave or the period that it would cover if you take the separation leave as a lump sum. There also are some restrictions on reemployment while you are also receiving a pension.”
- The quoted EYO posting remained accessible until at least May 22, 2008, after Applicant signed his separation agreement.

### Fund re-employment rules and downsizing-specific bar
- Long-standing rule: staff receiving SBF benefits become eligible for re-employment after the period corresponding to those benefits.
- Staff Bulletin No. 02/14 (August 16, 2002) governs re-employment of Fund retirees and by its terms:
  - bars re-employment while receiving Separation Benefits Fund (SBF) benefits (or equivalent period after lump-sum payment);
  - prevents former staff from occupying substantially the same positions held before retirement;
  - requires contractual re-employment to be consistent with Staff Bulletin No. 00/10 (Categories of Employment);
  - in case of G-4 visa holders, requires re-settlement outside U.S. duty station prior to re-employment, plus other restrictions.
- Staff Bulletin No. 02/14 remains in effect for retirees other than 2008 downsizing volunteers; re-employment of those volunteers was barred by a separate policy adopted by Management.

### Adoption, communication, and scope of the downsizing-specific bar
- Management adopted a policy barring re-hiring of 2008 downsizing volunteers, citing concerns about “reputational risks.”
- Policy communicated in person to Senior Personnel Managers (SPMs) in late March 2009; HRD confirmed via “Strictly Confidential” email on April 2, 2009: “Management has decided that we do not at this stage envisage the re-hiring of volunteers, either as regular staff (fixed-term or limited-term) or as contractuals.”
- HRD reaffirmation dated September 23, 2010: “the policy remains unchanged, that is staff who separated from the Fund under the downsizing exercise (“volunteers”) cannot be re-engaged, neither as staff nor as contractuals.”
- November 10, 2010 message advised policy applied to overseas offices.
- IMF Executive Board adopted similar bar for Offices of Executive Directors on July 14, 2009.

### Procedural/timeliness issues and jurisdiction
- Article V, Section 1 requires exhaustion of administrative review for individual decisions; Article VI sets timeliness rules:
  - Individual decision challenges: filed within three months of exhaustion of administrative review.
  - Regulatory decision challenges: filed within three months of announcement or effective date; illegality of regulatory decision may be asserted at any time in support of a timely challenge to an individual decision.
- Tribunal in Tosko Bello I found two grounds for jurisdiction ratione personæ:
  - The policy differentiated 2008 volunteers from other former applicants; Applicant’s status not equivalent to any other disappointed job seeker.
  - Applicant asserted violation of a material term of his separation agreement, which expressly permits claims for enforcement.

### Tribunal analysis: regulatory decision characterization and announcement
- Article II, Section 2: “regulatory decision” defined as “any rule concerning the terms and conditions of staff employment…”
- Facts supporting characterization as regulatory decision:
  - Decision taken at highest levels of Fund management.
  - Communicated to SPMs and via HRD emails (April 2, 2009; September 23, 2010; November 10, 2010).
  - Reversed a policy widely communicated via EYO.
- Tribunal concluded the contested re-hiring bar constitutes a “regulatory decision.”

### Tribunal analysis: direct challenge timeliness
- Article VI, Section 2 requires regulatory decision challenge within three months after announcement or effective date, whichever is later.
- Decision effective in late March 2009 but not generally announced to volunteers or staff at large.
- Tribunal held that when a regulatory decision is not generally announced, an affected individual may bring a “direct” challenge within three months of the date on which the decision is notified to that individual.
- HRD Director’s individual communication to Applicant on January 12, 2012 was functionally equivalent to an “announcement” for Article VI, Section 2 purposes, permitting a direct challenge within three months.

### Tribunal analysis: EYO posting, legitimate expectations, and reliance
- Central legal question: Did EYO posting constrain the Fund’s authority to adopt a later re-hiring bar for 2008 volunteers?
- Tribunal findings:
  - EYO Q&A formed part of the “ensemble” of conditions of separation and was material to volunteers’ decision-making.
  - Volunteers reasonably relied on EYO representations that no rule prevented future re-employment.
  - The EYO caveat about FAQs not addressing all situations and rules governing in inconsistency was inapposite to whether the Fund could later impose a bar on re-employment for that specific group.
  - Absence of individualized commitments in separation letters did not preclude reasonable reliance on targeted group communications like EYO.
  - The Fund breached legitimate expectations of volunteers by later promulgating the re-hiring bar.

### Tribunal conclusions on legality of the regulatory and individual decisions
- Tribunal concluded:
  - Applicant’s challenge to the regulatory decision is well-founded.
  - Applicant’s challenge to the HRD Director’s January 12, 2012 individual decision is well-founded.
  - The HRD Director’s January 12, 2012 decision is null and void pursuant to Article XIV, Sections 1 and 3 of the Statute.
  - The re-hiring bar as a regulatory decision is annulled.

### Remedies and damages
- Compensation for intangible injury:
  - Tribunal awarded Applicant $20,000 for intangible injury of being wrongfully denied opportunity to compete for a contractual vacancy.
  - Tribunal found Applicant did not establish actual loss of wages attributable to the regulatory decision.
- Corrective measures ordered:
  - Fund shall individually notify each volunteer that the ban on re-hiring has been nullified by the Tribunal.
  - Fund shall notify all staff responsible for recruitment and hiring that the ban has been lifted and shall issue a general announcement to all staff.
  - Fund shall adopt corrective measures to ensure former staff who voluntarily left under the 2008 downsizing program are considered eligible for re-employment if qualified.
- Legal fees and costs:
  - Applicant submitted legal fees and costs totaling $16,281.00.
  - Tribunal awarded Applicant the full amount of fees and costs of $16,281.00 pursuant to Article XIV, Section 4, taking into account case complexity and related considerations.

### Final decision (unanimous)
- The Tribunal unanimously decides:
  1. The regulatory decision barring re-employment of former staff who voluntarily separated pursuant to the 2008 Fund-wide downsizing program is annulled.
  2. The individual decision of January 12, 2012 finding Mr. Tosko Bello ineligible to compete for a contractual vacancy is null and void.
  3. Mr. Tosko Bello shall be paid $20,000 for intangible injury.
  4. The Fund shall individually notify each 2008 downsizing volunteer that the ban has been nullified.
  5. The Fund shall notify all recruitment and hiring staff and provide a general announcement to all staff that the ban has been nullified.
  6. The Fund shall pay Mr. Tosko Bello $16,281.00 for legal fees and costs.

*Administrative Tribunal of the International Monetary Fund, Judgment No. 2013-2, Mr. B. Tosko Bello v. International Monetary Fund (Judgment delivered Washington, D.C., March 13, 2013).*

### Introduction ....................................................................................................1

### Introduction

### Overview and decision context
- The Administrative Tribunal of the International Monetary Fund met on March 12 and 13, 2013, to adjudge the Application brought by Mr. Brian Tosko Bello against the International Monetary Fund.  
- The Tribunal panel for this case was composed of Judge Catherine M. O’Regan, President, and Judges Edith Brown Weiss and Francisco Orrego Vicuña.  
- Applicant was represented by Ms. Veronika Nippe-Johnson, Schott Johnson, LLP. Respondent was represented by Ms. Jennifer Lester, Assistant General Counsel, and Ms. Melissa Su Thomas, Counsel, IMF Legal Department.

### Applicant’s claims and requested relief
- Principal challenges:
  - A challenge to the Fund’s policy not to re-hire former staff members who separated voluntarily under the terms of the 2008 Fund-wide downsizing program, characterized as both a “regulatory decision” and as an “individual decision” in his case.
  - Allegation that the re-hiring ban contradicted information provided to staff and relied upon in deciding to opt for voluntary separation.
  - Allegation that the policy lacked a proper business rationale and impermissibly discriminated against volunteers under the 2008 downsizing vis-à-vis other former Fund staff in respect of eligibility for re-employment.
  - Contention that the Fund failed to announce the policy, rendering it invalid per se.
- Relief sought:
  - Rescission of the January 12, 2012 decision of the Director of the Fund’s Human Resources Department (HRD) finding Applicant ineligible to compete for a contractual position in his former department.
  - Rescission of the policy prohibiting re-hiring (on a contractual or any other basis) former staff who separated under the 2008 Fund-wide downsizing program.
  - Monetary compensation in the amount of one year’s salary.
  - Legal fees and costs, pursuant to Article XIV, Section 4, of the Tribunal’s Statute, if the Application is found well-founded in whole or in part.

### Respondent’s position
- The Fund contends:
  - The amendment to the re-hiring policy excluding persons who had separated pursuant to the 2008 Fund-wide downsizing program was a legitimate exercise of managerial discretion supported by a reasonable business purpose.
  - The distinction made among categories of former staff is permissible because the differentiation is rationally related to the business purpose.
  - No commitment was made—either in communications to staff generally or individually to Applicant—that the Fund would refrain from modifying its hiring policies in the future.
  - Applicant suffered no harm from the method by which the Fund communicated the re-hiring ban and that the policy was properly applied in his case.

### Procedural history and tribunal rulings
- Application timeline and filings:
  - Applicant filed an Application with the Tribunal on April 12, 2012; the Application was transmitted to Respondent on April 13, 2012.
  - On April 18, 2012, the Registrar circulated within the Fund a notice summarizing the issues raised in the Application pursuant to Rule IV, para. (f).
  - Respondent filed a Motion for Summary Dismissal on May 14, 2012, under Rule XII. Applicant filed an Objection on June 15, 2012.
  - On September 11, 2012, the Tribunal rendered Judgment No. 2012-3 (Tosko Bello I), denying the Fund’s Motion for Summary Dismissal.
- Jurisdiction in Tosko Bello I:
  - The Tribunal held two independent grounds for jurisdiction ratione personæ:
    - The policy’s essence differentiates former staff who separated voluntarily under the 2008 downsizing from other applicants for Fund employment, so Applicant’s status is not equivalent to any other disappointed job seeker.
    - Applicant asserts a violation of a material term of the agreement by which he separated from the Fund, and that agreement expressly permits claims for its enforcement.
- Pleadings on the merits:
  - Respondent filed its Answer on October 31, 2012.
  - Applicant filed his Reply on December 3, 2012.
  - The Fund’s Rejoinder was filed on January 3, 2013.
  - On February 15, 2013, Applicant submitted an additional document accepted under Rule XI; the Fund’s response was filed on February 28, 2013.

### Requests for production of documents and Tribunal action
- Applicant requested production under Rule XVII of:
  1. Any and all documentation of the Fund’s policy not to re-hire volunteers from the 2008 downsizing, including documentation evidencing when the policy was implemented and related internal deliberations, including deliberations about business rationale and the decision not to publicly announce the policy.
  2. Any and all documentation evidencing whether exceptions have been granted since implementation of the new policy.
  3. Any and all documentation evidencing the Fund’s similar rehiring policies for:
     - a) staff who separated mandatorily during the 2008 downsizing exercise; and
     - b) staff who separated voluntarily or mandatorily outside (before or after) the 2008 downsizing exercise.
- Respondent attached documentation it stated was responsive to Applicant’s requests in its Answer. Applicant accepted the Fund’s response in his Reply. No document-production requests remained pending before the Tribunal.

### Oral proceedings
- Applicant requested oral proceedings in his Application; Respondent opposed.
- Applicant withdrew the request in his Reply, stating the written record was complete given the Fund’s document responses.
- The Tribunal decided that oral proceedings would not be held and the case would be decided on the written record.

### Factual background: 2008 downsizing and “Exploring Your Options” (EYO)
- Applicant’s employment history and downsizing context:
  - Applicant began employment with the Fund on March 1, 2001.
  - In early 2008, the Fund announced a Fund-wide downsizing initiative to trim and reshape its workforce to reduce expenditures and refocus the organization’s mission.
- Volunteer window and separation terms:
  - Volunteers were solicited through enhanced separation benefits and were given a narrow window from March 1-April 21, 2008 in which to volunteer.
  - Volunteers were to indicate a preferred last day of active duty to fall within the one-year period between May 14, 2008 and May 13, 2009.
  - See Staff Bulletin No. 08/03 (Refocusing and Modernizing the Fund: The Framework for the Downsizing Exercise) (February 29, 2008), p. 2.
  - Some 492 volunteers separated under the beneficial terms of the 2008 downsizing exercise. Applicant is one of those volunteers.
- Exploring Your Options (EYO) website and representations:
  - The Fund established an intranet website titled Exploring Your Options (EYO) as “a source of practical information for potential volunteers.”
  - Staff Bulletin No. 08/03, p. 2, referred staff members to the EYO website with the advice: “All staff will be able to volunteer to leave the Fund with a separation package described in the Exploring Your Options website . . . .”
  - The EYO website was intended to provide information, “as available and accurate at the time, ‘on the separation process, your package options and benefits, and resources to help you in making decisions during the downsizing.’”
  - The EYO website included an extensive Q&A addressing some 200 questions submitted by Fund staff.
  - On February 29, 2008, the following Q&A entry was posted on EYO:
    - Q. If I volunteer and take a package, is there a specific rule that will prevent me from being hired by the Fund sometime in the future?
    - A. No. The Fund has no prohibition from being reemployed in the future because you have taken a separation package. You may not be reemployed at the Fund during the separation leave or the period that it would cover if you take the separation leave as a lump sum. There also are some restrictions on reemployment while you are also receiving a pension.
  - The documentation shows that the quoted posting remained accessible on the EYO website until at least May 22, 2008, i.e., after Applicant had signed his separation agreement.

*Administrative Tribunal of the International Monetary Fund, Judgment No. 2013-2, Mr. B. Tosko Bello v. International Monetary Fund*

### 19.      In its pleadings, the Fund has explained this posting as follows: “As a general matter,

### j2013-2 - 19.

### Fund policy on re-employment of former staff (SBF / downsizing volunteers)
- The Fund’s long-standing policy: staff members who receive SBF [Separation Benefits Fund] benefits become eligible for re-employment by the Fund after the end of the period of time corresponding to those benefits.
- Staff Bulletin No. 02/14 (Contractual Appointment of Fund Retirees) (August 16, 2002) governs re-employment of former staff and by its terms:
  - bars the re-employment of former staff members as long as they are receiving benefits from the Separation Benefits Fund (SBF) (or for an equivalent period of time in the event of a lump-sum payment);
  - prevents former staff members from occupying substantially the same positions they held before retirement;
  - requires that any contractual re-employment be consistent with the Fund’s policy on Categories of Employment (Staff Bulletin No. 00/10), which restricts contractual appointments to specific functions and for particular time periods;
  - in the case of G-4 visa holders, requires re-settlement outside of the U.S. duty station prior to re-employment, along with other restrictions.
- Staff Bulletin No. 02/14 remains in effect and continues to govern contractual appointment of Fund retirees other than those persons who voluntarily separated pursuant to the 2008 Fund-wide downsizing program; re-employment of those former staff members is barred by the policy that is the subject of Applicant’s challenge.
- Each page of the Q&A section on the intranet “Exploring Your Options” included the disclaimer that FAQs do not address all situations and that in the event of inconsistency the provisions of the rule or regulation will govern.

### Adoption, communication, and scope of the downsizing-specific bar
- In the course of the year when most downsizing volunteers separated, Fund Management reconsidered re-employment rules and, citing concerns about possible “reputational risks,” adopted a policy barring re-hiring of former staff who had received separation benefits under the downsizing program.
- Management communicated the downsizing-specific bar in person to Senior Personnel Managers (SPMs) in late March 2009; HRD confirmed it via a “Strictly Confidential” email on April 2, 2009, stating: “Management has decided that we do not at this stage envisage the re-hiring of volunteers, either as regular staff (fixed-term or limited-term) or as contractuals.”
- HRD reaffirmed the policy on September 23, 2010: “the policy remains unchanged, that is staff who separated from the Fund under the downsizing exercise (“volunteers”) cannot be re-engaged, neither as staff nor as contractuals.” 
- A November 10, 2010 message advised that the policy applied as well to the Fund’s overseas offices.
- The IMF Executive Board adopted a similar bar on July 14, 2009, for Offices of Executive Directors (OEDs) regarding employment of individuals separated under the 2008 downsizing program.

### Applicant’s separation, offer, and denial of eligibility
- Applicant submitted a request for voluntary separation on April 21, 2008; notified of acceptance on May 2, 2008.
- By letter of May 19, 2008, the Fund confirmed administrative arrangements and included a release: the terms represented “a full and final resolution of any and all demands and claims by you, your heirs and legal representatives of every nature, known or unknown, including consequential, indirect and punitive damages, arising out of or in connection with your Fund employment to date, other than the enforcement of this agreement.”
- The letter stated Applicant would receive, as of the effective date of his separation, a separation benefit in the form of a lump-sum payment equivalent to 7.5 months of his net annual salary.
- Applicant’s separation became effective on May 13, 2009.
- In January 2012, Applicant was verbally informed by a departmental official of a possible contractual position and encouraged to check HRD about the restriction.
- Applicant emailed HRD Director on January 11, 2012 seeking eligibility to interview; HRD Director replied on January 12, 2012: “Because you left under the downsizing initiative, you are not eligible to compete for any contracts at the Fund.”
- Applicant challenges that response and the underlying policy before the Tribunal.

### Administrative review channels and timeliness issues
- Article V, Section 1 of the Tribunal’s Statute requires exhaustion of available channels of administrative review for challenges to individual decisions; Article VI provides timeliness rules:
  - An application challenging the legality of an individual decision must be filed within three months of exhaustion of administrative review.
  - An application challenging the legality of a regulatory decision must be filed within three months of the announcement or effective date of that decision; illegality of a regulatory decision may be asserted at any time in support of a timely challenge to an individual decision taken pursuant to it.
- Applicant filed a Grievance with the Fund’s Grievance Committee prior to Tribunal application to preserve rights; indicated willingness to withdraw the Grievance if Respondent agreed to proceed solely in the Tribunal or if the Tribunal found the application admissible.
- In Tosko Bello I the Tribunal concluded Applicant had satisfied the exhaustion requirement of Article V, Section 1, because his complaint against the individual decision “rests entirely on his challenge to the underlying policy” and further proceedings in the Grievance Committee would not have served the purposes of administrative review.
- The Tribunal noted it need not decide at the admissibility stage whether the contested policy qualified as a “regulatory decision” for Article VI purposes because Applicant identified an individual decision giving effect to the policy; Article VI, Section 2 allows asserting illegality of a regulatory decision in support of an admissible application challenging an individual decision.
- On September 17, 2012, Applicant requested withdrawal without prejudice of his Grievance; the Grievance was withdrawn by agreement of the parties.

### Applicant’s principal contentions
- The policy barring re-employment of voluntary separations directly contravenes written information provided by the Fund, which was reasonably relied upon by staff, and formed part of the quid pro quo for separation.
- The Fund’s policy against re-employment of volunteers of the 2008 downsizing is not supported by a proper business rationale.
- The contested policy discriminates impermissibly against staff who separated voluntarily under the 2008 downsizing program vis-à-vis other former Fund staff members with respect to eligibility for re-employment.

*Source: International Monetary Fund (IMF) pleadings and Tribunal record as cited in j2013-2.*

### 4. The Fund’s failure to announce the rule renders it invalid per se.

### 4. The Fund’s failure to announce the rule renders it invalid per se.

### Applicant’s requested relief
- Rescission of the HRD Director’s January 12, 2012 decision, described by Applicant as a decision “not to select/not to consider Applicant eligible” for a contractual vacancy in his former department.
- Rescission of the Fund’s policy against re-hiring (either as regular staff or contractual) former staff members who separated voluntarily under the 2008 downsizing exercise.
- Compensation in the amount of one-year’s salary as “compensatory and moral damages”.
- Legal fees and costs incurred in pursuing his case before the Grievance Committee and the Administrative Tribunal.

### Respondent’s principal contentions (summarized)
- Eligibility of volunteers in the 2008 downsizing to be re-hired was not a fundamental or essential term of employment and therefore was subject to unilateral amendment by the Fund.
- The contested policy barring re-employment of persons who separated voluntarily pursuant to the 2008 Fund-wide downsizing program was a legitimate exercise of the Fund’s discretionary authority and is rationally related to the legitimate business purpose of mitigating reputational risks to the institution.
- The Fund did not impermissibly discriminate among categories of former staff in barring re-hiring of those who separated voluntarily pursuant to the 2008 downsizing program; there is a “rational nexus” between the purposes of the re-hiring ban and the differentiation among former staff members.
- The Fund made no formal commitment that it would maintain its policy unchanged; it did not restrict its discretion to change the policy. Eligibility for re-employment was not a quid pro quo for voluntary separation under the downsizing.
- The contested policy was properly applied to Applicant; his separation agreement included no individualized commitment by the Fund to refrain from modifying its hiring policies.
- The manner by which the Fund communicated the re-hiring ban was appropriate, and Applicant suffered no harm as a result.

### Issues before the Tribunal
- Does the policy prohibiting the re-hiring of the 2008 Fund-wide downsizing volunteers constitute a “regulatory decision” within the meaning of Article II of the Tribunal’s Statute?
- If it does, has Applicant brought a “direct” challenge to that “regulatory decision” within three months of its announcement or effective date (Article VI, Section 2)?
- Did the Fund’s representation on the EYO website that there was no rule barring future re-employment of staff who separated voluntarily pursuant to the 2008 downsizing constrain its discretionary authority to adopt a rule prohibiting re-hiring of those volunteers?
- Is Applicant’s challenge to the “individual decision” (determining he was ineligible to compete for a contractual vacancy based on the contested “regulatory decision”) well-founded?

### Tribunal analysis: Is the re-hiring bar a “regulatory decision”?
- Article II, Section 2 defines “regulatory decision” as “any rule concerning the terms and conditions of staff employment, including the General Administrative Orders and the Staff Retirement Plan, but excluding any resolutions adopted by the Board of Governors of the Fund.”
- Precedent: D’Aoust (IMFAT Judgment No. 1996-1) held an unpublished HR practice used by a small number of officials was not a “regulatory decision,” although the Tribunal could review the related individual decision.
- Facts here: Fund Management adopted the decision prohibiting re-hiring, in consultation with HRD; it was communicated to SPMs in late March 2009 and confirmed in an email from HRD to SPMs, April 2, 2009, stating “Management has decided that we do not at this stage envisage the re-hiring of volunteers, either as regular staff (fixed-term or limited-term) or as contractuals.”
- Although the contested policy was not circulated to volunteers or staff at large and was communicated to SPMs and individually upon inquiry, the decision was “taken at the highest levels of Fund management,” communicated to SPMs, and reversed a policy widely communicated via the EYO website.
- Conclusion: The Tribunal concludes the contested policy constitutes a “regulatory decision” within the meaning of Article II of the Statute.

### Tribunal analysis: Has Applicant brought a “direct” challenge within three months?
- Article VI, Section 2 requires that an application challenging the legality of a regulatory decision be filed within three months after the announcement or effective date of the decision, whichever is later; the provision preserves the ability to challenge a regulatory decision that is announced late relative to its effective date.
- The decision became effective in late March 2009 but was never generally announced to volunteers or staff at large.
- Written documentation produced by Respondent consists of:
  - HRD email to SPMs dated April 2, 2009, marked “Strictly Confidential” (confirming policy mentioned at an SPM meeting).
  - Emails dated September 23, 2010 (confirming policy “remains unchanged”) and November 10, 2010 (advising policy applies as well to overseas offices).
  - HRD Director’s January 12, 2012 individual communication to Applicant.
- Applicant’s position: because the decision was not generally circulated, the “announcement or effective date” for a direct challenge should be the date HRD Director notified him individually, January 12, 2012.
- The Fund’s position: it communicated the policy to SPMs (initially orally at a meeting) and SPMs and HRD were tasked with recruitment responsibilities; it was incumbent on hiring managers to implement the policy and communicate it to former volunteers who applied.
- Evidence shows ambiguity among hiring managers about eligibility, requiring clarification up to the level of the HRD Director. A substantial period elapsed between late March 2009 effective date and Applicant’s individual notification.

### Tribunal conclusions on timing, notice, and remedies
- The lack of a formal general announcement does not preclude the policy from being a “regulatory decision,” but the Fund’s choice to restrict circulation cannot be permitted to shield the regulatory decision from a “direct” challenge within three months of its notification to an affected individual.
- To allow restricted circulation to defeat the three-month limitation would create an incentive for the Fund to withhold prompt circulation of regulatory decisions, inconsistent with sound human resources practices and the Tribunal’s responsibility to determine whether a decision transgressed applicable Fund law.
- The Tribunal interprets Article VI, Section 2 as permitting an applicant in circumstances like those here to bring a “direct” challenge within three months of the later of announcement or effective date when the Fund has not generally announced the decision.
- The Tribunal notes the linkage between the three-month direct-challenge window and the scope of remedial authority (Article XIV):
  - If a regulatory decision is challenged solely via its individual application after the three-month period, the only relief is to render the regulatory decision unenforceable in that applicant’s case (with practical limitation on future applications).
  - If a regulatory decision is challenged directly within three months of its announcement or effective date, relief may include annulment of the regulatory decision and annulment of any individual decision taken pursuant to it “before or after” its annulment, benefiting other adversely affected staff members in addition to the applicant.

*Administrative Tribunal judgment (j2013-2).*

### 54.      In the view of the Tribunal, the Fund’s failure in this case to give general circulation to a

### Tribunal analysis of the Fund’s EYO posting and re-employment policy

### Jurisdiction, announcement, and timeliness
- The Tribunal held that the Fund’s failure to give general circulation to a policy adopted by Management does not shield it from “direct” review and remedies available under the Tribunal’s Statute.
- An “announcement,” in the logic of the Tribunal’s Statute, serves to inform affected staff (or former staff) of the “regulatory decision” so its legality may be tested before the Tribunal.
- The Tribunal found that the manner in which the Fund communicated the policy, first adopted in late March 2009, permitted Applicant to challenge that “regulatory decision” directly within three months of the date on which it was notified to him on January 12, 2012.
- In the circumstances of the case, the HRD Director’s “individual decision” of January 12, 2012 was functionally equivalent to the “announcement” (within the meaning of Article VI, Section 2) to Applicant of the “regulatory decision” upon which that “individual decision” was based.
- The Statute does not prohibit a “direct” challenge to a “regulatory decision” from being maintained concurrently with a timely challenge to an “individual decision” taken pursuant to it.
- Conclusion on standing/timeliness: Applicant brought a challenge to a “regulatory decision” both in the context of contesting an “individual decision” and “directly” within three months of the “announcement or effective date of the decision, whichever is later,” in accordance with Article VI, Section 2.

### Central factual question and EYO Q&A content
- Narrow legal question: Did the Fund, by posting content on the EYO intranet site, constrain its authority to amend its re-hiring policy in relation to persons who separated pursuant to the 2008 downsizing?
- The EYO posting at issue read:
  - Q. If I volunteer and take a package, is there a specific rule that will prevent me from being hired by the Fund sometime in the future?
  - A. No. The Fund has no prohibition from being reemployed in the future because you have taken a separation package. You may not be reemployed at the Fund during the separation leave or the period that it would cover if you take the separation leave as a lump sum. There also are some restrictions on reemployment while you are also receiving a pension.

### Parties’ positions
- Applicant:
  - Contends the policy barring re-employment of former staff who separated under the 2008 downsizing directly contravened information provided and reasonably relied upon by staff in deciding to opt for voluntary separation.
  - Asserts that the possibility of returning to work at the Fund was an “important factor in his decision making” and that volunteers “reasonably relied” on the written information and expectation of eligibility for re-employment after separation leave.
  - Argues that without these assurances, he and similarly situated staff might not have agreed to voluntary separation.
- Respondent (the Fund):
  - Asserts the EYO posting accurately represented the rule in force at the time but was subject to future revision.
  - Maintains the Q&A was a summary of policies and did not represent a commitment that policies were immutable; staff are aware rules and regulations may be changed from time to time.
  - Argues it was unreasonable for Applicant to rely on the Q&A to the extent of believing the Fund was irrevocably bound.
  - Notes the Q&A pages included a caveat stating the FAQs do not address all possible situations and that in the event of inconsistency the applicable rule or regulation will govern.

### Tribunal’s legal analysis and precedents
- Context:
  - The Tribunal recognized the 2008 Fund-wide downsizing as an “unprecedented effort to ‘encourage the voluntary separation of staff members’,” resulting in nearly 500 separations, and that extraordinary incentives were necessary to avoid mandatory staff cuts.
  - Staff faced complex choices weighing costs and benefits of leaving under the program and potential for mandatory separations if insufficient volunteers came forward.
  - The EYO website was expressly designed to “help [staff members] in making decisions during the downsizing” and the Q&As provided answers to specific questions raised by staff in anticipation of the downsizing.
- Legal parallels and authorities cited:
  - World Bank Administrative Tribunal (WBAT) de Merode, Decision No. 1 (1981): staff expectations derive from an “ensemble” of conditions of employment including written law, organizational practice, and general principles of law; rules outside the letter of appointment can be binding as part of the legal system governing employment.
  - WBAT Harrison, Decision No. 53 (1987): distinguished individualized negotiated separation agreements from those determined by general rules; where release value is set by inflexible, general rules, different protections apply.
  - IMFAT precedents recognizing the “living law” of the Fund as communicated on internal websites and intranet data have been taken into account in earlier judgments (e.g., IMFAT Judgments cited for reliance on EYO content).
- Tribunal’s findings on contractual ensemble and reliance:
  - The information on the EYO website formed part of the “ensemble” of Applicant’s conditions of separation because the Fund, as a substitute for individual bargaining, made representations to potential volunteers as a group via that intranet site.
  - Volunteers who chose to accept separation relied on those representations; the Fund was obliged to adhere to them.
  - The Q&A caveat referred only to potential inconsistencies with an extant rule and was inapposite to the question whether the Fund could later impose a new bar on re-employment for that specific group of volunteers.
  - Absence of an individualized commitment in a separation letter does not preclude reasonable reliance on material and reliable information provided through internal communications channels when those communications were targeted to facilitate decisions about the downsizing.
  - The Tribunal found analogy to WBAT decision Brebion (Decision No. 159 (1997)), where an oral understanding supplemented a separation agreement and insulated the staff member from a subsequent rule change.

### Conclusions on reliance and Fund obligations
- Staff must be able to rely upon information communicated through the Fund’s internal communications channels, particularly where decisions significantly alter lives and careers, as in the 2008 downsizing.
- The EYO Q&A content was material and reliable for volunteers:
  - Evidence that EYO content was relied upon includes a separation letter of another staff member referencing the Exploring Your Options website for detailed information on outside employment and other relevant matters.
- The Tribunal treated the separation agreements arising from the 2008 downsizing as of the type governed by general group communications rather than individualized bargaining; therefore the Fund’s group representations on EYO could constitute enforceable elements of the separation conditions.

*Source: IMF Administrative Tribunal judgment, paras. 54–74.*

### 75.      Respondent asserts that Applicant was not “. . . compelled to accept the terms of the

### j2013-2 - 75.

### Context and factual background
- The Fund conducted a 2008 Fund-wide downsizing exercise in which nearly 500 staff members separated voluntarily.
- Volunteers typically requested separation via an automated mailbox or on-line submission mechanisms (Staff Bulletin No. 08/03, p. 2: “staff will be able to submit an application to volunteer on-line though the ESS Kiosk or by using a form that will be available in the Exploring Your Options website”).
- The Fund provided standard form separation agreements shortly after acceptance into the program; individualized negotiation was not the norm.
- The Fund posted information on the website titled Exploring Your Options and answered Q&As intended to “help [staff] in making decisions during the downsizing,” including an unqualified statement that staff who opted for voluntary separation “would not be prohibited from being re-employed in the future by the Fund.”

### Tribunal findings on legitimate expectations and the regulatory decision
- The Tribunal found that the Fund’s communications created a legitimate expectation for volunteers that no rule precluded their future re-employment.
- The Fund’s later promulgation of a policy barring re-employment of the downsizing volunteers breached those expectations.
- Key factual and legal conclusions:
  - “Applicant did not strike an individualized bargain with the Fund.”
  - In an environment of Fund-wide downsizing, the Fund could not shift to individual staff the burden of securing individualized commitments about future re-employment.
  - The Fund’s Q&A responses, read in context, provided assurance that “future Fund employment would not be foreclosed by acceptance of the separation terms offered by the downsizing.”
  - The subsequent policy change that did so “breached the legitimate expectations of the volunteers.”
  - The policy applied specifically to persons whom the Fund had informed via the Q&A of a contrary rule.

### Procedural fairness and notice issues
- Applicant contended the re-hiring ban was implemented in the absence of fair procedures and without reasonable notice, asserting it was “made behind closed doors while most affected staff members actually were still at the Fund and had just signed their separation agreements.”
- Respondent argued individual communication to hiring managers (SPMs) and to Applicant upon inquiry was sufficient, asserting the policy “had no impact on serving staff” and thus did not require broad announcement.
- The Tribunal noted prior authority stressing clarity and transparency in Fund rules and guidance (citing Ms. “EE”, Applicant v. IMF, IMFAT Judgment No. 2010-4, para. 178; and D’Aoust, para. 36).
- The Tribunal did not need to resolve all procedural objections because it concluded the regulatory decision was invalid on substantive grounds (illegality due to breach of legitimate expectation).

### Individual decision challenged and Tribunal conclusion on eligibility
- The individual decision challenged was the HRD Director’s January 12, 2012 decision that “[b]ecause [Applicant] left under the downsizing initiative, [he was] not eligible to compete for any contracts at the Fund.”
- The Tribunal concluded:
  - The “individual decision” flowed directly from the contested “regulatory decision.”
  - Applicant’s challenge to the regulatory decision is well-founded.
  - Applicant’s challenge to the individual decision is therefore also well-founded.
  - The HRD Director’s January 12, 2012 decision is null and void pursuant to Article XIV, Sections 1 and 3 of the Statute.

### Remedies prescribed and determination of damages
- Statutory framework cited by the Tribunal:
  - Article XIV, Section 1: rescission of illegal individual decisions and corrective measures, including payment of money or specific performance.
  - Article XIV, Section 3: annulment of illegal regulatory decisions; any individual decision based on such regulatory decision “shall be null and void.”
  - Commentary: annulment of a regulatory decision renders it unenforceable against the applicant in the immediate case; the organization may decide whether to reopen other individual decisions.
- Tribunal’s remedial conclusions and orders for Applicant:
  - The Tribunal annulled the regulatory decision barring re-employment of former staff who separated voluntarily under the 2008 downsizing program.
  - The HRD Director’s January 12, 2012 decision that Applicant was “not eligible to compete for any contracts at the Fund” is null and void.
  - Applicant did not establish actual loss of wages (i.e., he “has not established that he suffered actual loss of wages because of the application of the ‘regulatory decision’ in the circumstances of his case”).
  - The injury found is an intangible injury arising from the nullified individual decision.
  - To “correct the effects” of the nullified individual decision, Applicant shall be awarded monetary compensation for that intangible injury.
- Applicant’s requested relief (as asserted in his Application):
  - rescission of the HRD Director’s January 12, 2012 decision;
  - rescission of the Fund’s policy against re-hiring former staff who separated voluntarily under the 2008 downsizing;
  - compensation in the amount of one-year’s salary as “compensatory and moral damages”;
  - legal fees and costs incurred before the Grievance Committee and the Administrative Tribunal.
- The Tribunal observed Applicant could not show that but for the nullified regulatory decision he would have been re-employed; relief therefore focused on compensation for intangible injury rather than lost wages.

*Source: Judgment of the IMF Administrative Tribunal (j2013-2), paras. 75–91.*

### 92.      The jurisprudence of this and other international administrative tribunals has long

### 92. The jurisprudence of this and other international administrative tribunals

### Compensation for intangible injury
- The jurisprudence recognizes the principle that “. . . relief may be awarded for intangible injury.” (citing IMFAT Judgment No. 2005-1 (March 18, 2005), paras. 121-122 and Decision).
- In cases where an applicant was wrongfully excluded from competition for a post, it is not necessary to show that the applicant would have succeeded in obtaining the post for monetary compensation to be granted (citing Jakub v. IBRD, WBAT Decision No. 321 (2004), paras. 69-70, 76; ILOAT Judgment No. 2959 (2010), Considerations 3-9).
- To correct effects of the nullified “individual decision” in respect of Applicant, the Administrative Tribunal of the International Monetary Fund ordered:
  - Payment of compensation in the sum of $20,000 for the intangible injury incurred by being wrongfully denied the opportunity to compete for a vacancy in his former department for which he made efforts to apply.
- The Tribunal took into account that Applicant succeeded in annulment of both the “regulatory decision” and the “individual decision,” restoring the legitimate expectation that Applicant and the other 2008 downsizing volunteers are eligible to apply for re-employment as suitable vacancies arise.

### Corrective measures ordered
- The Fund shall adopt corrective measures to ensure that former staff members who voluntarily left under the terms of the 2008 downsizing program are considered eligible for re-employment if qualified.
- Required corrective measures include:
  - Individually notifying each volunteer that the ban on re-hiring of former staff members who voluntarily separated under the 2008 Fund-wide downsizing exercise has been nullified by decision of the Tribunal.
  - Notifying all staff members (whether in HRD or the Fund’s other departments) responsible for recruitment and hiring that the ban on re-hiring of the downsizing volunteers has been lifted.
  - Providing a general announcement of the lifting of the ban to all staff.

### Legal fees and costs
- Article XIV, Section 4, of the Statute authorizes the Tribunal, if it concludes an application is well-founded in whole or in part, to order that reasonable costs incurred by the applicant, including counsel fees, be totally or partially borne by the Fund, taking into account the nature and complexity of the case, the nature and quality of the work performed, and the amount of the fees in relation to prevailing rates.
- Applicant submitted a statement of legal fees and costs totaling $16,281.00 with his Reply; Respondent had opportunity to comment in its Rejoinder.
- Respondent argued the case “is not complex from either a factual or legal standpoint” and requested proportionality in any fee award; Respondent also objected to fees associated with Applicant’s representation before the Grievance Committee as “wholly unnecessary.”
- The Tribunal’s jurisprudence permits awarding attorney’s fees and costs for representation in proceedings antecedent to the Tribunal’s review.
- The Tribunal found it reasonable for Applicant to submit a Grievance to preserve rights and concluded there was no ground to exclude the portion of the fee request arising from pursuit of the complaint before the Grievance Committee.
- The Tribunal reserved consideration of fees for successful defense against the Fund’s Motion for Summary Dismissal until the merits; those fees were included in Applicant’s statement and Respondent did not oppose them.
- Conclusion on costs:
  - The Tribunal found Applicant prevailed on his principal claim, with a Judgment affecting a wide group of former staff members, and awarded the full amount of fees and costs submitted, i.e., $16,281.00.

### Decision of the Administrative Tribunal of the International Monetary Fund (unanimous)
- The Tribunal unanimously decides:
  1. The “regulatory decision” barring re-employment of former staff members who voluntarily separated pursuant to the terms of the 2008 Fund-wide downsizing program is annulled.
  2. The “individual decision” of January 12, 2012, determining that Mr. Tosko Bello was ineligible, on the basis of the above “regulatory decision,” to compete for a contractual vacancy in his former department is null and void.
  3. The Fund shall pay Mr. Tosko Bello compensation in the sum of $20,000 for the intangible injury he incurred in being wrongfully denied the opportunity to compete for the contractual vacancy in his former department for which he made efforts to apply.
  4. The Fund shall notify individually each former staff member who separated voluntarily pursuant to the terms of the 2008 Fund-wide downsizing program that the ban on re-hiring of those volunteers has been nullified by decision of the Tribunal.
  5. The Fund shall notify all staff members responsible for recruitment and hiring that the ban on re-hiring of volunteers who separated pursuant to the terms of the 2008 Fund-wide downsizing program has been nullified by decision of the Tribunal, and shall provide a general announcement of this to all staff.
  6. The Fund shall pay Mr. Tosko Bello the reasonable costs of his legal representation incurred in pursuing his claims before the Grievance Committee and the Administrative Tribunal, in the sum of $16,281.00.

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_Source: https://www.imf.org/-/media/files/imfat/j2013-2.pdf_