## j2013-4

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### Case overview and procedural timeline
- Event: Administrative Tribunal of the International Monetary Fund, Judgment No. 2013-4, Mr. “HH”, Applicant v. International Monetary Fund, Respondent.
- Tribunal composition: Judge Catherine M. O’Regan, President; Judge Andrés Rigo Sureda; Judge Jan Paulsson (participated by telephone on October 9, 2013).
- Hearing dates: March 6 and 7, and October 9, 2013.
- Representation: Applicant by Ms. Veronika Nippe-Johnson, Schott Johnson, LLP; Respondent by Mr. Brian Patterson, Senior Counsel, and Ms. Juliet Johnson, Counsel, IMF Legal Department.
- Procedural timeline:
  - May 16, 2012: Application filed.
  - May 24, 2012: Application supplemented.
  - May 25, 2012: Application transmitted to Respondent; Registrar circulated notice within the Fund on June 8, 2012.
  - July 9, 2012 (corrected July 11, 2012): Respondent Answer filed.
  - August 13, 2012: Applicant Reply submitted.
  - September 13, 2012: Fund’s Rejoinder filed.
  - January 23, 2013: Tribunal issued interim decisions on anonymity and interim-order practice.
  - May 16, 2012: Applicant’s Application (date of filing repeated in timeline).

### Applicant’s claims and relief sought
- Principal claim:
  - Challenge to non-conversion of a three-year fixed-term appointment (Grade B2, effective October 1, 2007) to an open-ended appointment.
- Specific allegations:
  - Interdepartmental transfer during fixed term, without renewal for another three-year period, violated the Fund’s Fixed-Term Monitoring Guidelines and deprived Applicant of a fair opportunity to demonstrate suitability for a career appointment.
  - Supervisors allegedly failed to provide timely performance feedback.
  - HRD Director did not afford Applicant an opportunity to be heard before the contested decision.
- Remedies sought:
  - Rescission of the non-conversion decision and reinstatement for a three-year fixed-term appointment; or alternatively monetary compensation for “tangible economic damage.”
  - “Compensatory and moral damages” in the amount of three years’ salary.
  - Legal fees and costs under Article XIV, Section 4 if Application found well-founded.

### Respondent’s principal contentions
- Non-conversion was a reasonable exercise of managerial discretion based on Applicant’s failure to meet performance standards required for a career appointment.
- Applicant was given ample feedback, warnings of performance shortcomings, and extraordinary opportunities to overcome them.
- Transfer claim improperly before the Tribunal because Applicant failed to exhaust administrative review and allegedly agreed to the transfer.
- Non-conversion complied with fair procedures and applicable internal law.

### Administrative-review outcome prior to Tribunal filing
- Grievance Committee Recommendation and Report (December 22, 2011): recommended sustaining the Grievance in part, finding the transfer without a new fixed-term appointment violated the “mobility” provision; recommended a monetary award of one year’s salary and full reimbursement of legal costs.
- Fund Management accepted the recommendation and granted a monetary award equal to one year’s salary and full reimbursement of legal expenses (letters dated February 14 and February 16, 2012).

---

### Anonymity request, interim decision practice, and Tribunal precedent
- Applicant requested anonymity under Rule XXII and an “interim order” permitting withdrawal if anonymity denied; Respondent opposed both requests.
- January 23, 2013: Tribunal found no merit to Respondent’s objection to issuing an interim decision in appropriate circumstances and granted Applicant anonymity, finding “good cause” under Rule XXII.
- Tribunal practice and statistics cited:
  - Rule XXII (effective for applications filed after December 31, 2004) makes anonymity an exception requiring demonstration of “good cause.”
  - Ten requests under Rule XXII have been decided to date; seven of those ten requests were granted.
  - Typical grounds previously granting anonymity: allegations of harassment, discrimination and retaliation; misconduct proceedings involving sexual-relationship accusations; health concerns central to the case; child support disputes affecting Staff Retirement Plan benefits; disability retirement requests linked to alleged misconduct.
- Tribunal’s interim-decision approach:
  - If an applicant expressly seeks an interim anonymity decision, the Tribunal will consider it after affording the Fund an opportunity to respond; otherwise anonymity determinations are ordinarily deferred until after merits review.
- Precedent where anonymity denied:
  - Sachdev (non-selection, abolition of position, separation): Tribunal rejected anonymity despite claims about health and financial privacy.
  - Pyne (separation after reduction in force): Tribunal denied anonymity, holding financial information alone does not fall within Rule XXII protection.
  - Ding (policy on eligibility for children’s Education Allowances): anonymity denied consistent with standard.

### Key legal standards on anonymity articulated by the Tribunal
- Rule XXII operates as an “exception to the general rule of making public the names of parties to a judicial proceeding.”
- Anonymity must be supported by “good cause.” (Ms. “AA”, para. 13.)
- Anonymity may not be granted solely on consent by the parties.
- An applicant’s bare assertion of possible adverse employment consequences from publication does not, of itself, justify anonymity. (See Ding, para. 11.)
- Tribunal recognizes increased internet disclosure risks but holds such general concerns insufficient alone to require anonymizing a judgment.

### Application to Applicant’s anonymity request in this case
- Applicant argued that:
  - The case involves “sensitive information and substantive negative claims about Applicant’s performance” with potential career and livelihood consequences and ill effects on health from stress.
  - Internet searches by recruiters create substantial and unavoidable risk to career prospects if name published.
  - International jurisprudence trends toward granting anonymity and “good cause” should be interpreted to encompass protection of professional reputation.
- Respondent countered that:
  - Expanding “good cause” to include performance-related information would “completely swallow the Tribunal’s recent establishment of a presumption against anonymity.”
  - Concern about reputational harm from performance allegations is insufficient to meet Rule XXII.
  - Applicant’s health references were “completely superfluous” and not material to the case.
- Tribunal conclusion on anonymity:
  - Because key evidence related to performance assessments and because protecting the confidentiality of that process would require concealing Applicant’s identity, the Tribunal concluded Applicant established “good cause” and granted anonymity under Rule XXII.
  - The Tribunal will, as far as possible, not disclose information that would enable identification.

---

### Jurisdiction, standard of review, and scope of challenge
- Tribunal confirmed it has jurisdiction to review the circumstances of the transfer as they bear on the non-conversion decision.
- Standard of review for non-conversion (abuse of discretion standard, as articulated in the Commentary on the Statute, p. 19):
  - Discretionary managerial decisions are overturned only if shown to be arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.
  - The standard is flexible and tailored to the nature of the decision; deference is substantial for assessments of professional qualifications.
- Constraints on discretion:
  - Fixed-term appointee must be afforded adequate opportunity to demonstrate performance consistent with suitability for career employment.
  - Periodic evaluation, adequate warning of deficiencies, and reasonable opportunity to remedy are required.
- On raising the transfer as a ground:
  - Applicant’s Grievance alleged the Fund’s refusal to issue a new fixed-term contract “was in clear violation of the Fund’s own Guidelines”; thus the transfer-related allegation was before the Grievance Committee and is properly considered by the Tribunal in reviewing non-conversion.
  - Failure to pursue a separate administrative review of the transfer does not preclude the Tribunal from considering whether the transfer’s terms affected the non-conversion decision.
  - Acceptance of transfer terms weighs against a challenge but does not create absolute estoppel where unequal bargaining positions, misrepresentation, or procedural irregularity exist.

---

### Facts and legal framework governing fixed-term appointments and mobility
- Relevant internal law excerpts (GAO No. 3, Rev. 7 (May 1, 2003) and Staff Bulletin No. 06/6):
  - Types of appointments and conversion rules: fixed-term staff may be converted to open-ended status if they meet performance requirements and the Fund’s staffing needs (3.02.1.3).
  - Staff recruited to fill senior level positions (Grades B3–B5) receive three- to five-year fixed-term appointments (3.02.1.4).
  - Limited-term appointments: normally up to three years, may be extended once up to a cumulative period of five years; they “shall not carry any expectation of conversion to open-ended appointments” (3.02.2.2).
  - Benefits: annual amount paid by the Fund in lieu of pension contributions "shall not exceed 14 percent of the amount that would be the staff member’s notional gross remuneration if he were a participant in the Staff Retirement Plan." (3.03)
- Fixed-Term Monitoring Guidelines (timing and process):
  - For offers made on or after May 1, 2006, three-year fixed-term terms; decision at the 30th month to convert or let employment lapse; fixed-term appointments not extendable beyond 36 months.
  - Assessment schedule for three-year fixed-terms: interim review (~6–7 months), 12-month review, mid-point review (where applicable), and Second Full Review at APR cycle leading to 30th-month decision.
  - Mobility rule: fixed-term staff expected to remain in same department for duration; interdepartmental mobility only after career employment decision (after 2.5 years) except in exceptional cases "clearly in the Fund’s interest" where staff member is offered a new fixed-term appointment and monitoring begins anew, requiring agreement of staff member and both departments and HRD endorsement.
- Staff Bulletin No. 06/6 (effective May 1, 2006): increased fixed-term offers at Grades A1–B2 from two-year to three-year terms; decision at 30th month; no extensions beyond 36 months.

---

### Transfer, performance assessment, and Tribunal factual findings
- Key dates and contractual choices:
  - Applicant appointed effective October 1, 2007 on a three-year fixed-term appointment at Grade B2 in “Department 1.”
  - Transfer effective October 27, 2009 to “Department 2” (approximately six months before the April 2010 conversion decision).
  - HRD proposed three options (Memorandum for Files of November 3, 2009): (i) remain in “Department 1”; (ii) cancel three-year FT contract and replace with an LT contract extended through April 30, 2011 (18 months); (iii) move to “Department 2” under existing three-year FT contract. Applicant chose option (iii).
  - HRD internal memo (September 23, 2009) recorded proposal for a limited-term appointment to allow additional assessment; Applicant rejected limited-term option.
- Tribunal findings on legality of transfer under the Guidelines:
  - The mobility exception applies only where transfer is "clearly in the Fund’s interest," staff and both departments agree, staff offered a new three-year fixed-term appointment, and HRD endorses transfer.
  - The transfer here did not meet those conditions and thus was inconsistent with the Fixed-Term Monitoring Guidelines.
  - The arrangement arose chiefly as a response to Applicant’s performance difficulties and his efforts to seek another evaluation—not from an institutional need “clearly in the Fund’s interest.”
- Assessment of whether inconsistent transfer vitiated non-conversion:
  - The central question: did inconsistency render the April 2010 non-conversion decision arbitrary, capricious, discriminatory, improperly motivated, based on error, or in violation of fair procedures?
  - Tribunal concluded that although the transfer was inconsistent with internal law, it did not render the non-conversion decision an abuse of discretion in the circumstances of this case.
  - Had the Fund adhered strictly to its rules, Applicant likely would not have been converted; the transfer provided a “second pair of eyes” but did not disadvantage Applicant materially in the assessment of his suitability for conversion.
- Performance assessments and monitoring findings:
  - Assessments and feedback timeline:
    - Six-month assessment signed September 3, 2008: praised effort, tenacity, interpersonal skills; identified need for “more polished and pointed analysis” and stronger oral and written communication skills.
    - 12-month assessment signed February 18, 2009: ratings included “CE” in four competencies; “FM” in eight; “PM” in six; narrative reiterated analytical and communication development areas.
    - Draft Second Full Performance Review circulated June 1, 2009: analytical and communication skills "still remain below the critical mark."
    - Fixed-Term Performance Review/Second Full Review signed December 8, 2009 (period ending October 23, 2009): reiterated analytical and communication skill deficiencies; documented five performance discussions over six weeks.
  - At “Department 2,” Assistant Director observed writing weaknesses and instituted objectives and monthly follow-up sessions “along the lines of a performance improvement plan.”
  - Memoranda record multiple feedback meetings in early 2010 (January 8, February 19, March 15, April 15, 2010).
  - April 12, 2010 memorandum from “Department 2” Assistant Director found Applicant had not displayed “sufficient analytical skills or creative problem-solving capability,” lacked consistent initiative, and did not deliver two important assignments on time.
  - HRD Director reviewed assessments from both Departments, documentation, and Applicant’s written responses; HRD Director decided not to convert in April 2010; non-conversion communicated April 19, 2010.
- Procedural fairness and opportunity to be heard:
  - Tribunal found Applicant received periodic assessments, repeated warnings about key competencies, and ample opportunity to be heard through written submissions and the monitoring process.
  - HRD Director considered Applicant’s written rebuttals before deciding; Sections E and F of relevant form were not completed but HRD Director stated necessary information to decide was provided.
  - Tribunal found no denial of a reasonable opportunity to be heard.

---

### Tribunal legal conclusions and remedy
- Standard application:
  - Non-conversion is a managerial discretion-based, performance-based decision subject to abuse-of-discretion review.
- Tribunal holdings:
  - The transfer was not in accordance with the Fixed-Term Monitoring Guidelines (mobility provision).
  - The inconsistent transfer did not render the non-conversion decision an abuse of managerial discretion on the facts of this case.
  - Respondent fulfilled monitoring and feedback obligations: periodic assessments, repeated warnings, and efforts to assist Applicant were documented.
  - Applicant failed to demonstrate he met performance requirements and potential for a career at the Fund (GAO No. 3, Section 3.02.1.3).
- Decision:
  - The Application of Mr. “HH” is denied (unanimous decision).
- Institutional observations:
  - Tribunal emphasized importance of consistent application of internal rules; inconsistent application “undermines trust among staff members and may foster grievances not easily remedied.”
  - Tribunal noted where procedural irregularity exists, relief may include compensation even if the substantive administrative decision is sustained; but on the record here, no such relief was granted beyond prior Grievance Committee award accepted by Management.

*Administrative Tribunal of the International Monetary Fund, Judgment No. 2013-4.*

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

### Introduction

### Case overview
- Event: Administrative Tribunal of the International Monetary Fund, Judgment No. 2013-4, Mr. “HH”, Applicant v. International Monetary Fund, Respondent.
- Tribunal composition for the case: Judge Catherine M. O’Regan, President; Judge Andrés Rigo Sureda; Judge Jan Paulsson (participated by telephone on October 9, 2013).
- Hearing dates: March 6 and 7, and October 9, 2013.
- Representation: Applicant by Ms. Veronika Nippe-Johnson, Schott Johnson, LLP; Respondent by Mr. Brian Patterson, Senior Counsel, and Ms. Juliet Johnson, Counsel, IMF Legal Department.

### Procedure and timeline
- May 16, 2012: Applicant filed an Application with the Administrative Tribunal.
- May 24, 2012: Application supplemented in accordance with Rule VII, paras. 3 and 6.
- May 25, 2012: Application transmitted to Respondent; Registrar circulated within the Fund a notice summarizing the issues raised on June 8, 2012 (pursuant to Rule IV, para. (f)).
- July 9, 2012: Respondent filed its Answer (corrected July 11, 2012).
- August 13, 2012: Applicant submitted his Reply.
- September 13, 2012: Fund’s Rejoinder filed.

### Applicant’s claims and relief sought
- Principal claim: Challenge to the non-conversion of a fixed-term appointment to an open-ended appointment.
- Specific allegations:
  - Transfer to a different Fund department during the fixed term, without renewal for another three-year period, violated the Fund’s Fixed-Term Monitoring Guidelines and deprived Applicant of a fair opportunity to demonstrate suitability for a career appointment.
  - Supervisors allegedly failed to provide timely performance feedback.
  - Human Resources Department (HRD) Director did not afford Applicant an opportunity to be heard before the contested decision.
- Remedies sought:
  - Rescission of the non-conversion decision and reinstatement for a three-year fixed-term appointment; or alternatively monetary compensation for “tangible economic damage.”
  - “Compensatory and moral damages” in the amount of three years’ salary.
  - Legal fees and costs, to be awarded under Article XIV, Section 4 of the Tribunal’s Statute if the Application is found well-founded in whole or in part.

### Respondent’s principal contentions
- Non-conversion was a reasonable exercise of managerial discretion based on Applicant’s failure to meet performance standards required for a career appointment.
- Applicant was given a fair opportunity to demonstrate suitability for conversion, including ample feedback, warnings of performance shortcomings, and extraordinary opportunities to overcome them.
- Allegation that the interdepartmental transfer violated Fixed-Term Monitoring Guidelines is not properly before the Tribunal because:
  - Applicant failed to exhaust administrative review procedures regarding the transfer.
  - Applicant agreed to the transfer in his own interest.
- Non-conversion decision complied with fair procedures and applicable internal law.

### Anonymity request and interim decision
- Applicant requested anonymity pursuant to Rule XXII of the Tribunal’s Rules of Procedure and, unusually, requested an “interim order” so he could elect to withdraw his Application if anonymity were denied.
- Respondent opposed both the anonymity request and the request for an interim decision.
- January 23, 2013: Tribunal decisions notified to parties:
  - The Tribunal found no merit to Respondent’s objection to an interim decision in the circumstances and concluded it could consider an anonymity request in advance of the merits where appropriate.
  - The Tribunal found that Applicant had shown the “good cause” required by Rule XXII and granted Applicant’s request for anonymity.
- Rationale on interim decision practice:
  - Rule XXII is silent on timing of decisions; it neither expressly provides for nor prohibits interim decisions.
  - Tribunal adopts a case-by-case approach to interim anonymity decisions. If an applicant expressly seeks an interim decision, the Tribunal, after affording the Fund an opportunity to respond, will consider whether such an interim decision is appropriate.
  - If no interim decision is sought, the Tribunal will ordinarily defer anonymity determinations until after review of the merits, because anonymity remains the exception and the merits may bear upon anonymity.

### Tribunal practice and statistics on anonymity
- Rule XXII (effective for all applications filed after December 31, 2004) made anonymity an exception requiring demonstration of “good cause.”
- The Tribunal has consistently applied the standard articulated in Ms. “AA” and Ms. N. Sachdev: anonymity is an exception and is generally granted only in cases involving alleged misconduct or matters of personal privacy such as health or family relations.
- To date in Tribunal practice cited in the Introduction:
  - Ten requests for anonymity under Rule XXII have been decided.
  - Seven of those ten requests were granted.
- Illustrative grounds for granted anonymity in prior cases included:
  - Allegations of harassment, discrimination and retaliation (serious misconduct).
  - Challenges to misconduct proceedings involving accusations relating to sexual relationships among staff.
  - Health of applicant and allegations of mistreatment by supervisor.
  - Child support dispute affecting benefits under Staff Retirement Plan.
  - Disability retirement request and alleged misconduct.

*Source: Administrative Tribunal of the International Monetary Fund, Judgment No. 2013-4, Introduction.*

### 19.      The Tribunal has rejected three anonymity requests pursuant to Rule XXII. In Sachdev,

### j2013-4 - 19.      The Tribunal has rejected three anonymity requests pursuant to Rule XXII. In Sachdev,

### Tribunal practice on anonymity under Rule XXII
- The Tribunal has rejected three anonymity requests pursuant to Rule XXII.
- Sachdev: Applicant challenged non-selection for a promotion, abolition of her position and separation from service; she requested anonymity claiming disclosure would reveal “confidential personal and professional information, including information regarding Applicant’s health, welfare as well as personal family matters” and that financial loss from separation was a “matter of personal privacy.” The Tribunal rejected these arguments (Sachdev, para. 7; id., para. 10).
- Pyne: Applicant challenged decisions relating to separation from the Fund after a departmental reduction in force and benefits entitlements; she sought anonymity due to “extensive discussion” of salary and pension entitlements. The Tribunal denied anonymity, rejecting that financial information alone fell within Rule XXII protection (Pyne, paras. 9-12).
- Ding: Applicant challenged a Fund policy on eligibility for children’s Education Allowances; the Tribunal rejected his request for anonymity consistent with its standard (Ding, paras. 8-11).

### Applicant’s arguments in the instant case (non-conversion of fixed-term appointment)
- Applicant’s claims:
  - Challenge to non-conversion of fixed-term appointment to open-ended appointment.
  - Case involves “sensitive information and substantive negative claims about Applicant’s performance and affect his professional reputation with potentially serious negative consequences on his career and livelihood, as well as information about ill effects on Applicant’s health suffered through severe stress in the months since the transfer was implemented.”
  - Actively seeking employment and fears “further undeserved damage to his career if his name and the above-mentioned personal and negative information were to be published on the internet in a Tribunal decision” with “unquantifiable repercussions on his market value.”
  - Notes that performance assessments are ordinarily treated by the Fund with a high degree of confidentiality and questions why seeking Tribunal review should expose supervisors’ claims to public internet searches.
  - Cites Sachdev as limiting anonymity to “exceptional” cases involving “matters of personal privacy” such as alleged misconduct, health or family matters, and argues that protection of professional reputation should be encompassed.
  - Argues internet searches by recruiters make publication of Tribunal decisions a substantial and unavoidable risk to career prospects.
  - Asserts a shift in international administrative jurisprudence toward routinely granting anonymity and urges interpretive expansion of “good cause” under Rule XXII to protect performance-related reputational harm.

### Respondent’s position
- Respondent (the Fund) maintains:
  - Applicant has not shown “good cause” under Rule XXII.
  - Interpreting “good cause” to include sensitive information about work performance would “. . . completely swallow the Tribunal’s recent establishment of a presumption against anonymity” and convert anonymity from exception to rule (emphasis in original).
  - An applicant’s concern about reputational damage from Tribunal allegations of negative performance is insufficient to meet the “good cause” standard.
  - Disputes Applicant’s assertion of a jurisprudential “reversal” toward greater anonymity; contends cited cases do not support that contention.
  - Regarding health assertions, the Fund states it has not discussed Applicant’s health in its pleadings; Applicant’s health references are “completely superfluous” and only “passing references” not “material to the case” (citing Sachdev, para. 11).

### Tribunal analysis and precedent survey
- Health-related privacy:
  - Tribunal recognizes it has granted anonymity where health matters “played a central role” and the Tribunal engaged in extensive discussion of medical evidence (citing Sachdev, para. 11; Ms. “CC”, para. 7; Mr. “DD”, para. 7).
  - In the instant case, Applicant’s health assertions are deemed peripheral and do not, by themselves, establish “good cause” for anonymity.
- Protection of professional reputation:
  - Central question: whether protection of an applicant’s professional reputation in challenges to performance-based decisions constitutes “good cause” under Rule XXII.
  - No direct precedent where an applicant explicitly sought anonymity primarily to protect against disclosure of alleged performance deficiencies.
  - Prior non-conversion challenges referenced did not raise Rule XXII issues because applications were filed prior to January 1, 2005; in Ms. “AA” anonymity was granted for reasons unrelated to protecting professional reputation.
- Survey of other international tribunals:
  - Tribunal surveyed practices of AsDBAT, AfDBAT, EUCST, IADBAT, ILOAT, UNDT, UNAT, and WBAT and concluded practices are varied and remain in flux.
  - Some tribunals grant anonymity routinely upon request; others do so rarely. Examples show divergent legal standards (e.g., EUCST applies “legitimate reasons” standard).
  - ILOAT uniquely publishes names in print versions but anonymizes internet postings (beginning May 2002).
  - Tribunal rejects Applicant’s assertion that “the majority of international administrative tribunals [are] now granting anonymity to applicants as a matter of general practice.”
  - Tribunal emphasizes Rule XXII requires a showing of “good cause” and that granting anonymity by consent without such a showing is rejected (Ms. “AA,” para. 12).
- Transparency vs. privacy:
  - Tribunal reiterates the “general rule of making public the names of parties to a judicial proceeding” (Ms. “AA”, para. 13).
  - Recognizes tension between public justice (transparency) and privacy interests of individuals; seeks to avoid deterring applicants from pursuing adjudication where shielding identity is warranted.
  - Notes Tribunal’s unique role as sole judicial actor within the Fund’s dispute resolution system and its mandate to interpret the law of the Fund (Ms. “BB”, para. 65; Commentary on the Statute, p. 13).
  - Tribunal references Article XVIII of the Statute, which permits the President to decide that identities or other means of identification “shall be deleted” from copies of judgments made available to interested persons, and the associated Commentary emphasizing protection of privacy or organizational confidentiality.
  - Rule XVIII, para. 4 requires the Registrar to notify the Fund community of judgments and arrange for expeditious publication; Article XIII, Section 3 requires judgments to state reasons.

### Tribunal conclusion on applicant’s anonymity request (summary of reasoning)
- Applicant’s assertions about health are peripheral and insufficient to establish “good cause.”
- Applicant’s concerns about reputational harm from disclosure of alleged performance deficiencies do not fit within the Tribunal’s existing anonymity precedent, which has focused on matters of personal privacy such as health, family relations, or alleged misconduct where medical or similar evidence is central.
- The Tribunal remains guided by the Statute and Rule XXII’s “good cause” requirement, balancing transparency and privacy while avoiding undue deterrence of claims; the survey of other tribunals shows diverse practices and does not compel an expansive reinterpretation of Rule XXII.

*Administrative Tribunal for the International Monetary Fund — discussion of anonymity requests under Rule XXII, relevant judgments cited: Sachdev; Ms. D. Pyne (IMFAT Judgment No. 2011-2, November 14, 2011); Mr. S. Ding (IMFAT Judgment No. 2009-1, March 17, 2009); Ms. “CC”; Mr. “DD”; Ms. “AA”; Ms. “BB”; statutory and procedural provisions cited: Article XVIII; Rule XVIII, para. 4; Article XIII, Section 3; Commentary on the Statute.*

### 39.      In the view of the Tribunal, a principled approach to deciding anonymity requests

### In the view of the Tribunal, a principled approach to deciding anonymity requests

### Anonymity: legal standard and Tribunal reasoning
- Rule XXII operates as an “exception to the general rule of making public the names of parties to a judicial proceeding.”
- Anonymity may not be granted solely on the basis of the consent of the parties.
- Anonymity must be supported by “good cause.” (Ms. “AA”, para. 13.)
- An applicant’s bare assertion that contesting a decision may lead to adverse employment consequences does not, of itself, justify granting anonymity pursuant to Rule XXII. (See Ding, para. 11.)
- The Tribunal recognizes developments since adoption and prior interpretation of Rule XXII:
  - Greater recognition of applicants’ privacy interests by other international administrative tribunals.
  - The increasingly prominent role of the Internet and the unprecedented level of disclosure it affords.
- The Tribunal notes that its Judgments are now subject to Internet search for purposes unrelated to public justice, which may contribute to reluctance by potential applicants to seek judicial review; however, such general reluctance is not by itself sufficient to warrant anonymizing a judgment.

### Application of anonymity to the instant case
- Core evidentiary focus: Applicant’s job performance, as assessed by managers, which indicated performance below that required for conversion to a career appointment.
- Performance reviews are characterized as a special category of human resources intervention aimed to enhance and improve performance; candor by reviewers and confidentiality of the process are important.
- Because key evidence relates to performance assessments, protecting the confidentiality of the performance review process would require concealing Applicant’s identity.
- The Tribunal concluded that, in the circumstances, Applicant established “good cause” for protecting his privacy and granted anonymity pursuant to Rule XXII.
- The Tribunal will, as far as possible, not disclose information about Applicant that would enable him to be identified.

### Oral proceedings: discretion and record considered
- Article XII of the Tribunal’s Statute: the Tribunal shall “. . . decide in each case whether oral proceedings are warranted.”
- Rule XIII, para. 1: oral proceedings shall be held “. . . if . . . the Tribunal deems such proceedings useful.”
- Applicant did not request oral proceedings.
- The Tribunal had the transcript of oral hearings held by the Fund’s Grievance Committee, including testimony by Applicant; senior officials of departments in which he served; and the Director and Deputy Director of HRD.
- The Tribunal is authorized to weigh the Grievance Committee record as an element of the evidence before it. (Mr. M. D’Aoust, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 1996-1 (April 2, 1996), para. 17.)
- Given the extensive written record and absence of any request for oral proceedings, the Tribunal decided oral proceedings would not be useful to its disposition of the case.

### Factual background: appointment and performance assessment timeline
- Effective October 1, 2007, Applicant was appointed on a three-year fixed-term appointment at Grade B2 in “Department 1”.
- As a fixed-term appointee, Applicant was assessed at six-month intervals during the term.
- First six-month assessment (signed September 3, 2008):
  - Director praised Applicant for “put[ting] in a strong effort” amid “work pressures in the office [that] were extremely high.”
  - Noted management of a “complicated task of getting consensus,” “tenacity,” and “strong interpersonal skills.”
  - Identified need for “more polished and pointed analysis” and “strengthening oral and written communication skills.”
- Twelve-month assessment (signed February 18, 2009):
  - Ratings: “CE” (Consistently Exceeded) in four competencies; “FM” (Fully Met) in eight; “PM” (Partially Met) in six.
  - Narrative: responsible for managing an important part of unit’s work; “tireless efforts,” “strong work ethic and collegiality.”
  - Director identified two development areas: (i) analytical strengths; and (ii) communication skills; performance discussions occurred over three sessions in December 2008 and January 2009.
- June 1, 2009 performance meeting:
  - Department Director testified he would not have recommended conversion at that time. (Tr. I, p. 117.)
  - Draft Fixed-Term Performance Review/Second Full Performance Review circulated, reiterating strengths and noting analytical and communication skills “still remain below the critical mark.” (unsigned draft)
- Mid-point Memorandum for Files (August 12, 2009):
  - Fixed-Term Performance Review for the third six-month period (half-way mark) noted “polished products remained infrequent” and reiterated two areas for strengthening performance—analytical strengths and communication skills.
  - Memorandum recorded discussions of seeking assignments inside or outside “Department 1” and HRD engagement; encouraged Applicant to pursue paths and noted initial discussion with HRD.

### Transfer to “Department 2”: process and appointment arrangements
- Effective October 27, 2009, Applicant transferred to “Department 2”.
- On December 8, 2009, “Department 1” Director signed the Fixed-Term Performance Review/Second Full Performance Review for the period ending October 23, 2009:
  - Finalization delayed by Applicant’s request to include feedback from the mid-year exercise; performance discussions had taken place in five sessions over a six-week period.
  - Reiterated that analytical and communication skills were prerequisites for being an independent and effective manager.
  - Described two major assignments with difficulties; one involved “absence of an analytical construct” reflecting “a lack of appreciation of the underlying data and the concomitant policy issues.” (Signed December 8, 2009 review.)
- The Fixed-Term Performance Review/Second Full Performance Review noted HRD had found a suitable assignment in “Department 2” and “Department 2” was willing to take on the task.
- Circumstances of transfer were disputed between the parties:
  - Applicant and “Department 1” Director offered differing accounts as to who initiated the idea of transfer for a “second pair of eyes.” (Tr. I, pp. 116, 163-164; Tr. II, p. 356.)
- Applicant pursued vacancy applications during summer 2009; one response indicated fixed-term staff cannot apply for positions outside their department during the fixed-term, absent a planned agreement that restarts the fixed-term. (Email from Review Committee member to Applicant, October 20, 2009.)
- HRD internal communications (June–September 2009) explored options including a “[s]wap agreement to facilitate career development . . . and assessment of fixed-term staff member[s’] suitability for conversion” for a two-year period, with the fixed-term to be restarted as needed.
- HRD Division Chiefs cautioned about constraints in the employment framework regarding extending the three-year fixed-term appointment and use of limited-term appointments.
- Memorandum for Files (September 23, 2009) recorded agreement for Applicant to transfer to “Department 2” for October 26, 2009 – April 30, 2011 under a “limited-term appointment” to allow additional assessment and decision on long-term prospects; the proposal described that:
  - The limited-term appointment would have no impact on benefits and would permit conversion to a fixed-term appointment as well as open-ended positions.
  - “Department 2” would give views on Applicant’s potential no later than November 15, 2010; this review alongside annual reports would form basis for decision to extend, convert or terminate the limited-term appointment.
- Applicant rejected the “limited-term appointment” terms and instead chose to transfer to “Department 2” while retaining his existing fixed-term appointment.

*Excerpt from the IMF Administrative Tribunal Judgment.*

### 65.      Initially, the HRD Division Chief reported that Applicant was “. . . open to the idea and is

### j2013-4 - 65.

### Transfer options and contractual status
- HRD Division Chief reported Applicant was “. . . open to the idea and is thinking about the proposed arrangement. His main concern is the change in employment terms from FT [fixed-term] to LT [limited-term] and would have preferred an extension of his FT. I have explained to him that the LT was the best option given that there is no scope for extension of FT beyond the 3 years.” (Email from HRD Division Chief to HRD Director and Deputy Director, September 24, 2009.)
- “Department 1” Director informed “Department 2” Director that Applicant had decided to transfer while maintaining his existing fixed-term appointment: “[Applicant] has decided that he will move under his current contract. . . . On the presumption that he moves under the contract, you will have to give him a self contained assignment that would test analytics and writing. . . .” (Email from “Department 1” Director to “Department 2” Director, October 5, 2009.)
- The Memorandum for Files of November 3, 2009 recorded that HRD explained Applicant had three possibilities:
  - (i) remain in “Department 1” and serve out the remaining period of his three-year fixed-term appointment;
  - (ii) cancel the current three-year fixed-term contract and replace it with a limited-term contract extended through April 2011 (18 months), thereby allowing an extended period of time for evaluation by a second pair of eyes; and
  - (iii) move to “Department 2” under the current three-year fixed-term contract.
- Applicant informed HRD Deputy Director he chose to transfer to “Department 2” under his current three-year fixed-term contract; the transfer took place on October 27, 2009. (Memorandum for Files from [“Department 1”] Director and HRD Deputy Director, November 3, 2009; Email from HRD Deputy Director to Directors of “Department 1” and “Department 2”, October 20, 2009.)

### Fixed-Term Monitoring and mobility guidance
- Applicant questioned applicability of the “Mobility” section of the Fixed-Term Monitoring process and asked: “Why not implement the procedures presented in the second paragraph of the ‘Mobility’ section of the Fixed-Term Monitoring process . . . ?” (Email correspondence of October 8-15, 2009.)
- HRD Division Chief replied that the cited mobility procedures could not be implemented because they “will require a FT [fixed-term] vacancy, a selection process, and a department willing to select you for a new three year fixed-term appointment.” The current move was instead “considered in the context of your being provided a broader assessment framework of your fixed-term appointment in order to make a decision on next steps in April.” (Email correspondence of October 8-15, 2009.)
- HRD Division Chief stated: “Given that you asked for the move, with a preference to maintain your current fixed-term contract with the Fund, the monitoring process should be consistent and unchanged.” “[Y]our assignment in [“Department 2”] should reflect opportunities to help further assess your analytical and writing skills . . . So this is a continuation of the FT [fixed-term] monitoring process, and will be consistent with your current fixed-term contract.” “[“Department 1”] would conduct the 2 year assessment and [“Department 2”] will assess and give an input for the 30 month decision in April 2010.” (Email correspondence of October 8-15, 2009.)

### Applicant’s objections and HRD response
- In a Memorandum of December 18, 2009, Applicant asserted HR rules for Fixed-Term Contract “have clear directives that in an inter-departmental transfer, a new fixed-term contract should be issued,” and stated he “. . . did not request to move to [“Department 2”]. The move to [“Department 2”] was not initiated by me, nor did I request HRD’s assistance in identifying another assignment.” He asked that contractual terms be protected and Fund policies observed. (Memorandum from Applicant to HRD Deputy Director and “Department 1” Director, December 18, 2009.)
- The Fund did not respond to this communication; the Fund later stated Applicant’s record of objections “was not a proper request for administrative review,” and that Applicant “did not take the further step of filing a timely grievance with the Grievance Committee after he received no response to his objections.”

### Assessment of Applicant’s performance in “Department 2”
- Transfer effective date: October 27, 2009 — approximately six months before the conversion decision date. (Content summary.)
- “Department 2” Assistant Director observed early concerns: “. . . no matter what feedback I was providing on those written documents, the ability wasn’t—didn’t seem to be manifesting itself. . . . I felt that the weakness in writing that I had heard of in the past was much more serious than I thought.” (Tr. II, p. 41.)
- Department response included setting objectives and monthly feedback sessions, described as “something along the lines of a performance improvement plan.” (Tr. II, pp. 42-44.)
- January 8, 2010 meeting summarized in Memorandum for Files (January 27, 2010): four performance objectives set to require application of “. . . general managerial competencies . . . in the areas of managing work, applying analytical skills, and producing written products expected of B level staff in general in the Fund with minimal supervision . . . .” Monthly follow-up sessions anticipated.
- Applicant submitted an extensive written response on February 19, 2010, rebutting assertions about specific assignments. (Memorandum for Files from Applicant, February 19, 2010.)
- Further documented feedback meetings: February 19, 2010 (Memorandum of March 1, 2010); March 15, 2010; April 15, 2010 (one meeting recorded as lasting an hour and a half). Department Director noted drafts were “insufficiently analytical, which was one of the key competencies for B-level staff.” (Memoranda for Files, March 23, 2010; April 16, 2010.)

### Non-conversion decision
- April 12, 2010 Memorandum from “Department 2” Assistant Director to HRD Deputy Director concluded Applicant had not yet displayed “sufficient analytical skills or creative problem-solving capability,” had not shown consistent initiative, and “did not deliver two important work assignments on time that would have allowed him to articulate his strategic vision and to craft a product without major inputs from others.” The Memorandum recognized Applicant had been in “Department 2” for about 5 months compared with his 24 months in “Department 1” and had faced transition difficulties. (Memorandum, April 12, 2010.)
- Applicant replied to the assessment by Memorandum of April 19, 2010, disputing evaluations of his performance. (Memorandum from Applicant to “Department 2” Assistant Director, April 19, 2010.)
- HRD Director decided not to convert Applicant’s fixed-term appointment to open-ended status in April 2010; she reviewed assessments from both Department Directors and documentation, including Applicant’s written responses. (Tr. II, pp. 259, 264-265.)
- Non-conversion communicated to Applicant at a meeting on April 19, 2010. HRD Deputy Director’s Memorandum for Files recorded the grounds: “. . . significant gaps relative to the standards expected of B-level staff with respect to work management, including the ability to handle multiple tasks, drive for results, and ability to produce high-quality output under tight deadlines; analytical skills; strategic vision and leadership skills; and the ability to work independently and deliver close-to-final written products.” Applicant questioned substantive and procedural aspects and had a follow-up meeting with the HRD Director on April 21, 2010. (Memoranda of April 20, 2010 and April 22, 2010.)

### Channels of administrative review and outcomes
- Applicant challenged the non-conversion before the Fund’s Grievance Committee under GAO No. 31. The Committee’s Recommendation and Report of December 22, 2011 recommended sustaining the Grievance in part on the ground that Applicant’s transfer without a new fixed-term appointment violated the “mobility” provision of the Fixed-Term Monitoring Guidelines. The Committee recommended a monetary award of one year’s salary and full reimbursement of legal costs. (Grievance Committee Recommendation and Report, December 22, 2011.)
- Fund Management accepted the recommendations to grant a monetary award equal to one year’s salary and full reimbursement of legal expenses. (Letter from Deputy Managing Director to Applicant, February 14, 2012, and covering email of February 16, 2012.)
- Applicant filed his Application with the Administrative Tribunal on May 16, 2012.

### Applicant’s principal contentions (summarized)
- Respondent abused its discretion in deciding not to convert Applicant’s fixed-term appointment to an open-ended appointment.
- Applicant’s transfer to a different Fund department during the course of his fixed-term, without renewal of his appointment for another three-year period, violated the Fund’s Fixed-Term Monitoring Guidelines and deprived him of the opportunity to demonstrate his suitability for a career appointment prior to the decision on conversion.

*Source: Administrative record excerpts and testimony, events and documents dated between September 24, 2009 and May 16, 2012, as summarized in the provided content.*

### 3. The Tribunal has jurisdiction to review the circumstances of the transfer.

### 3. The Tribunal has jurisdiction to review the circumstances of the transfer.

### Key factual findings asserted by Applicant
- Applicant did not initiate, request or agree to the transfer.
- The proposal that Applicant change from a fixed-term appointment to a limited-term appointment, providing an additional six months in the new department, was not an acceptable option.
- The improper transfer during the course of Applicant’s fixed-term appointment, in violation of the Fixed-Term Monitoring Guidelines, invalidates the non-conversion decision.
- The non-conversion decision was affected by other serious procedural errors.
- Applicant’s supervisor delayed completing the scheduled performance reviews according to the timetable set by the Fixed-Term Monitoring Guidelines.
- The HRD Director improperly took the non-conversion decision herself and failed to provide Applicant the opportunity to be heard before taking the decision.

### Relief sought by Applicant
- Rescission of the non-conversion of his fixed-term appointment and reinstatement for a three-year fixed-term appointment or, alternatively, compensation for “tangible economic damage”.
- “Compensatory and moral damages” in the amount of three years’ salary.
- Legal fees and costs incurred in pursuing his case before the Administrative Tribunal.

### Respondent’s principal contentions (summarized)
- The Fund’s decision not to convert Applicant’s fixed-term appointment to an open-ended appointment was a reasonable exercise of managerial discretion; Applicant’s performance was properly evaluated and fell short of that required for conversion.
- Applicant failed to exhaust channels of administrative review with respect to the transfer decision, and the Tribunal accordingly is without jurisdiction to address his challenge to it.
- Applicant initiated, promoted and knowingly agreed to the transfer and is thereby estopped from challenging the transfer as a violation of the Fixed-Term Monitoring Guidelines.
- The circumstances of Applicant’s transfer between departments did not taint or invalidate the non-conversion decision.
- Applicant received repeated cautionary evaluations of his performance and extraordinary opportunities to demonstrate his suitability for a career appointment with the Fund.
- Any minor delays in the performance assessment process do not invalidate the non-conversion decision; the Fixed-Term Monitoring Guidelines provide only indicative timing and Applicant was given continuous feedback.
- The HRD Director considered Applicant’s written rebuttals of the assessments of his performance before taking the non-conversion decision.

### Relevant provisions of the Fund’s internal law (highlights)
- GAO No. 3, Rev. 7 (May 1, 2003), Section 3 defines:
  - 3.01 Types of Staff Positions: Regular positions are for an indefinite period; Term positions are for a limited period and subject to a sunset clause.
  - 3.02.1 Open-ended appointments:
    - 3.02.1.2 Staff shall be hired initially on a fixed-term appointment to test suitability for career employment; such staff are designated fixed-term staff members.
    - 3.02.1.3 If fixed-term staff meet performance requirements and meet the Fund’s staffing requirement, their appointment may be converted from fixed-term to open-ended at the expiration of the fixed-term appointment.
    - 3.02.1.4 Staff recruited to fill senior level positions (Grades B3–B5) shall receive three- to five-year fixed-term staff appointments; after completion these may be renewed without limit for fixed-term periods up to five years up to mandatory retirement age, or converted to open-ended appointments.
  - 3.02.2 Limited-term appointments:
    - 3.02.2.1 Limited-term appointments shall normally be used where organization/functions are under review or skills needed are likely to change significantly, or where the function is required for a limited period.
    - 3.02.2.2 Limited-term appointments shall be for a period of up to three years and may be extended once up to a cumulative period of five years in that position; they shall not carry any expectation of conversion to open-ended appointments.
    - 3.02.2.3 Employees on secondment shall be given limited-term appointments and shall have no expectation or possibility of conversion to an open-ended appointment unless specifically agreed.
  - 3.03 Benefits for fixed-term and limited-term appointments:
    - Fixed-term and limited-term appointments shall carry all the benefits of open-ended appointments except specified differences (e.g., eligibility rules for salary advance for home purchase, reduced appointment and resettlement benefits for appointments less than two years, home leave ineligibility, participation in Staff Retirement Plan rules). The annual amount paid by the Fund in lieu of pension contributions "shall not exceed 14 percent of the amount that would be the staff member’s notional gross remuneration if he were a participant in the Staff Retirement Plan."

### Fixed-Term Monitoring Guidelines (governing provisions and process)
- Purpose and objectives:
  - The fixed-term period is intended to provide the Fund with adequate time to assess both the business need for the position and the staff member’s suitability for this and other positions before making a decision to offer an open-ended appointment.
  - Specific objectives include assisting managers in evaluating performance and potential for a long-term career, helping new staff perform at full capacity by ensuring clear work objectives and structured feedback, and aiding the Fund in making an informed career employment decision towards the end of the fixed-term period.
- Timing and review stages:
  - Following the ECB review, fixed-term appointment offers made on or after May 1, 2006 for staff in Grades A1 to B2 will be for a three-year term.
  - At the 30th month the Fund will decide to convert the staff member to regular status or let the employment relationship lapse at the end of the fixed-term period; it will not be possible to extend these fixed-term appointments beyond 36 months.
  - For fixed-term staff appointed before May 1, 2006, the option to offer a limited extension for up to one year will continue; career employment decisions fall due at the 18th month (for two-year fixed-terms) and at the 30th month (for three-year fixed-terms).
- Performance planning and review schedule:
  - The manager is expected to brief the staff member on their role and on the fixed-term monitoring process soon after the fixed-term begins and at the latest, within three months of the start date.
  - Fixed-term staff on a three-year fixed-term will receive three or four assessments before the career employment assessment at the 30th month: (i) the interim review, (ii) the 12-month review, (iii) the mid-point review, and (iv) the second full review.
  - Interim Review: conducted six to seven months after performance planning; documented in Section B of the FTPR form and signed off by manager, SPM, and staff member.
  - 12-month Review: detailed assessment around the 12th month, captured in Section C of the FTPR form; manager rates competencies, meets with staff, and signs off with SPM and staff member.
  - Mid-point Review: applicable to three-year fixed-terms where there is a gap of nine months or more between the 12-month Review and the Second Full Review; documented by memorandum for files and shared with the staff member and SDD.
  - Second Full Review: second detailed assessment conducted during the regular APR cycle, completed on Section D of the FTPR form, signed by manager and SPM, and reviewed and signed by the staff member.
- Addressing poor performance:
  - Timely attention to performance issues is critical; unsatisfactory performance should be addressed as soon as evident.
  - Possible approaches include memorandum documentation, establishing a Performance Improvement Plan (PIP), or placing the staff member on probation; a staff member can be placed on probation at any time during the fixed-term monitoring process and probation may lead to separation before the end of the fixed-term period.
- Mobility rule relevant to transfers:
  - Fixed-term staff are expected to remain in the same department and will normally retain the same position for the duration of the appointment.
  - Interdepartmental mobility will only be possible after the career employment decision has been made, i.e. after the staff member has been in the department for two and a half years.
  - In exceptional cases, reassignment before conversion requires agreement between the staff member and the two departments involved, and the endorsement of HRD through RSD; the staff member will be offered a new fixed-term appointment and the fixed-term monitoring process will begin anew.

*The Fund.*

### 89.      Staff Bulletin No. 06/6 governed Applicant’s fixed-term appointment and provided in

### j2013-4 - 89.      Staff Bulletin No. 06/6 governed Applicant’s fixed-term appointment and provided in

### Staff Bulletin No. 06/6 — change to fixed-term appointments
- Effective for offers made on or after May 1, 2006, all fixed-term appointments at Grades A1 to B2, including those in the Economist Program, were increased from a two-year term to a three-year term.
- Under the framework:
  - The Fund will make a decision at the 30th month of a staff member’s appointment to either convert the staff member to regular status or to let the employment relationship lapse at the end of the fixed-term period.
  - Fixed-term appointments will not be extended beyond 36 months.
- Purpose stated: to provide the institution with a longer period during which to assess the business need for the position and the staff member’s suitability for this and other positions before offering an open-ended appointment.

### Issues presented for Tribunal consideration
- Central question: Did the Fund abuse its discretion in deciding not to convert Applicant’s fixed-term appointment to an open-ended appointment?
- Specific issues to be addressed:
  - (i) Significance of the Grievance Committee’s recommendation and Fund Management’s response regarding the Committee’s conclusion that Applicant’s interdepartmental transfer was not consistent with the “mobility” provision of the Fixed-Term Monitoring Guidelines.
  - (ii) The standard of review that governs challenges to non-conversion decisions.
  - (iii) Whether Applicant may challenge the non-conversion on the ground that his interdepartmental transfer during the fixed term was inconsistent with the Fixed-Term Monitoring Guidelines.
  - (iv) If so, whether the interdepartmental transfer, without renewal of his fixed term for another three-year period, was consistent with the “mobility” provision.
  - (v) If inconsistent, what impact that inconsistency has on the non-conversion decision (e.g., whether it rendered the decision arbitrary, capricious, discriminatory, improperly motivated, based on error of law/fact, or in violation of fair and reasonable procedures).
  - (vi) Whether Applicant’s supervisors provided requisite monitoring and feedback during the fixed term.
  - (vii) Whether the Fund afforded Applicant a reasonable opportunity to be heard.

### Significance of the Grievance Committee’s recommendation and Fund Management’s response
- Fund Management accepted the Grievance Committee’s recommendation that Applicant be compensated for what the Committee concluded was a failure to follow internal law governing interdepartmental transfer during the fixed-term appointment; Management granted the recommended monetary award without commenting on the Committee’s substantive conclusions.
- The Tribunal’s role:
  - Review the contentions de novo; the Tribunal’s review authority “fully penetrates the layer of administrative review provided by the Grievance Committee.”
  - The Tribunal makes findings of fact and law and reviews de novo the legality of an administrative act of the Fund; the Grievance Committee’s role is to make recommendations to the Managing Director to facilitate fair and expeditious resolution of disputes.
- Consequence:
  - The Fund’s payment of a monetary award following the Grievance Committee recommendation, without comment on the Committee’s substantive conclusions, does not affect the Tribunal’s weighing of the merits.
  - If the Tribunal concludes Applicant prevailed in whole or in part, the prior payment may be taken into account in determining relief.

### Standard of review for non-conversion decisions
- Non-conversion of a fixed-term appointment is an individual decision taken in the exercise of managerial discretion.
- The Tribunal consistently invokes the Commentary on the Statute standard:
  - Discretionary decisions cannot be overturned unless shown to be arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures. (Commentary on the Statute, p. 19)
- The abuse of discretion standard is flexible and tailored to the nature of the case; depth of scrutiny may vary according to the nature of the decision, grounds contested, and authority/expertise vested in original decision maker.
- For assessments of professional qualifications (e.g., promotions, dismissals for unsatisfactory performance) the Tribunal defers to managerial determinations of adequacy of professional qualifications.
- The Tribunal characterizes conversion decisions as “performance-based decisions”; it has deferred to management’s assessment where evidence of performance deficiencies exists and management deliberated without improper motive.
- A fixed-term appointee has no entitlement to continuation beyond the term; burden of proof rests with the applicant in challenging non-conversion.
- Discretion is constrained by principles of fair treatment and applicable internal law:
  - Fixed-term appointee must be afforded adequate opportunity to demonstrate performance consistent with suitability for career employment.
  - The appointee should be evaluated periodically, given adequate warning of deficiencies, and a reasonable opportunity to remedy them.
- Past practice: the Tribunal has sustained non-conversion while awarding compensation where procedural irregularity in the assessment process occurred, recognizing that lapses in fair process do not always require rescission of the challenged act but may warrant remedies.

### Raising the interdepartmental transfer as a ground for challenge
- Respondent argued Applicant failed to exhaust administrative review regarding the transfer and is estopped from challenging it because he agreed to it.
- Tribunal’s findings:
  - Applicant’s Grievance did allege that the Fund’s refusal to issue a new fixed-term contract “was in clear violation of the Fund’s own Guidelines” and that the Fund “should not have created a situation that forced Grievant to accept a transfer which was highly prejudicial to his conversion potential”; thus the transfer-related allegation was raised in the Grievance challenging non-conversion.
  - Applicant’s challenge is not to the transfer per se but to whether the terms of the October 2009 interdepartmental transfer affected the April 2010 non-conversion decision such that the latter was arbitrary, capricious, discriminatory, improperly motivated, based on error, or in violation of fair and reasonable procedures.
  - The fact that Applicant did not initiate separate administrative review of the transfer does not preclude the Tribunal from considering the transfer’s terms when evaluating the non-conversion decision under the Commentary on the Statute, p. 19.
- On estoppel by acceptance:
  - Precedent recognizes that acceptance of offered terms weighs against challenge but is only a presumption; unequal negotiating positions and possible misrepresentation or procedural irregularity may permit challenge despite acceptance.
  - The Tribunal has allowed challenges to terms of employment even after acceptance where doubt exists as to whether there was a true meeting of the minds or where process created misunderstanding or confusion.

### Procedural fairness and remedies (relevant precedents and principles)
- Fixed-Term Monitoring Guidelines: “There must be a clear positive assessment of performance and potential before the important commitment to career employment is made.” (overview page)
- Key procedural fairness principles:
  - Adequate monitoring and feedback over the fixed term.
  - Periodic evaluation, warning of deficiencies, and reasonable opportunity to remedy.
  - Right of fixed-term appointee to a fair opportunity to prove ability; Tribunal reviews whether this right was respected.
- Remedies where procedural irregularity found:
  - Tribunal may sustain the non-conversion decision yet award compensation for procedural failures (as in Ms. “C”).
  - Tribunal emphasizes importance of procedural fairness even when lapse does not rescind the administrative act.

*Source: IMF Administrative Tribunal, j2013-4.*

### 108.     Accordingly, that Applicant may have accepted the terms of the transfer does not

### j2013-4 - 108.     Accordingly, that Applicant may have accepted the terms of the transfer does not

### Relevance of Applicant’s acceptance of transfer
- Applicant’s acceptance of the transfer does not preclude the Tribunal from considering his allegation that the transfer was inconsistent with the Fund’s rules and thereby deprived him of fair process in the non-conversion decision.
- Applicant’s acceptance may be relevant to the Tribunal’s consideration of the merits of that allegation.

### Interpretation of the “mobility” provision of the Fixed-Term Monitoring Guidelines
- The “mobility” provision states:
  - "Fixed-term staff are expected to remain in the same department, and will normally retain the same position, for the duration of the appointment. Interdepartmental mobility will only be possible after the career employment decision has been made, i.e. after the staff member has been in the department for two and a half years. Fixed-term staff will only be able to apply to—internally or externally—advertised positions after conversion to open-ended status. In exceptional cases, where it is clearly in the Fund’s interest to reassign the staff member to a different department before conversion to open-ended status, the staff member will be offered a new fixed-term appointment and the fixed-term monitoring process will begin anew. Such arrangements require agreement between the staff member and the two departments involved, and the endorsement of HRD through RSD."
- Staff Bulletin No. 06/6 (May 25, 2006) revised prior policy:
  - Effective May 1, 2006, all new offers of fixed-term appointments at Grades A1-B2 were increased from a two-year to a three-year term and extensions eliminated.
  - Under Staff Bulletin No. 06/6: "the Fund will make a decision at the 30th month of a staff member’s appointment to either convert the staff member to regular status or to let the employment relationship lapse at the end of the fixed-term period. Fixed-term appointments will not be extended beyond 36 months."
  - The Fixed-Term Monitoring Guidelines reiterate: "At the 30th month of the staff member’s appointment, the Fund will make a decision to either convert the staff member to regular status or to let the employment relationship lapse at the end of the fixed-term period. It will not be possible to extend these fixed-term appointments beyond 36 months."

### Facts and choices offered to Applicant
- Applicant was offered three options:
  1. Remain in “Department 1”, maintaining his existing three-year fixed-term appointment (in compliance with the Fixed-Term Monitoring Guidelines).
  2. Transfer to “Department 2” on a limited-term appointment, to provide an additional six-month period in “Department 2” before the conversion decision.
  3. Transfer to “Department 2”, while maintaining his existing three-year fixed-term appointment.
- The latter two choices were not consistent with the Guidelines; Applicant chose the third.
- Applicant contended he did not "agree" to the transfer and described his choice as a "false choice", asserting he accepted the transfer "simply for lack of any other feasible and available options."
- HRD and Department Directors devised a limited-term appointment option to extend Applicant’s time in “Department 2” for an additional six months; Applicant rejected this option, citing concern that limited-term appointments "do . . . not carry any expectation of conversion to open-ended appointments in the position." GAO No. 3, Section 3.02.2.2.
- Respondent states that a "comfort letter" was offered and declined.
- Applicant sought clarification in October 2009 and was informed that implementing the mobility procedures he cited would require "a FT [fixed-term] vacancy, a selection process, and a department willing to select you for a new three year fixed-term appointment."

### Tribunal’s findings on legality of transfer under the Guidelines
- The Tribunal concluded:
  - The transfer was not a transfer contemplated within the proviso set out in the Guidelines, because the proviso applies where a transfer is taken "clearly in the Fund’s interest" and the staff member is offered "a new fixed-term appointment and the fixed-term monitoring process will begin anew."
  - The arrangement to transfer Applicant to “Department 2” arose in response to Applicant’s performance difficulties in “Department 1”, Applicant’s assertion that "failure was not an option", and his own efforts to seek alternate channels to prove his potential—not from an independent institutional need to reassign staff.
  - Therefore the transfer was not taken "clearly in the Fund’s interest."
  - Because the transfer was not made "clearly in the Fund’s interest," the mobility exception did not apply and did not mandate that Applicant be offered a new three-year fixed-term appointment.
  - The Fixed-Term Monitoring Guidelines permit transfer during a fixed-term appointment only when: (i) it is "clearly in the Fund’s interest," (ii) the staff member and both relevant departments agree, (iii) the staff member is offered a new fixed-term appointment for three years in the new position, and (iv) HRD endorses the transfer. Those conditions were not present here.
- Conclusion: the transfer of Applicant was not in accordance with the Fund’s internal law.

### Effect of the inconsistent transfer on the non-conversion decision
- Central question: did the inconsistency make the non-conversion decision an abuse of the Fund’s discretion (arbitrary, capricious, discriminatory, improperly motivated, based on error of law or fact, or carried out in violation of fair and reasonable procedures)?
- Underlying policy of the Fixed-Term Monitoring Process:
  - The fixed-term period "is intended to provide the Fund with adequate time to assess both the business need for the position, as well as the staff member’s suitability for this and other positions within the Fund, before making a decision to offer an open-ended appointment."
  - Monitoring aims to "[h]elp new staff perform at full capacity by ensuring that they receive clear work objectives and structured feedback . . . ."
  - The restrictive mobility rule is intended to give staff a fair opportunity to prove suitability for conversion and to avoid moving fixed-term staff so they lack adequate time to adapt and establish performance.
  - The explicit exception ensures a staff member is not disadvantaged when a transfer is in the Fund’s interest by restarting the fixed-term monitoring process with a new fixed-term appointment.
- Tribunal’s assessment of the specific case:
  - If the Fund had adhered strictly to its rules, Applicant would have had no choice and would have remained in his current Department for the duration of the three-year term where performance concerns already existed.
  - The transfer was made with Applicant’s agreement in what he believed to be his best interest to be evaluated under different supervision.
  - HRD and the Departments sought a solution outside written law to give Applicant a "second pair of eyes" evaluation; this purpose was not inconsistent with the spirit of the Guidelines, although inconsistent with their letter.
  - Applicant agreed to an interdepartmental transfer effective October 27, 2009, while continuing in the three-year fixed-term appointment set to expire in October 2010 unless a favorable conversion decision was made in April 2010 (the 30-month mark).
  - Applicant rejected two alternatives: (a) remain in original department for the fixed-term; (b) transfer via limited-term appointment to afford a full year of evaluation.
  - The Tribunal concluded that offering Applicant a second opportunity by effecting an interdepartmental transfer during the fixed-term appointment, even though inconsistent with internal law, was not unfair or unreasonable such that it vitiated the non-conversion decision.
  - On the record, had the Fund complied strictly with its internal law, Applicant would almost certainly not have had his fixed-term appointment converted to an open-ended appointment.

### Monitoring and feedback obligations
- International administrative jurisprudence and the Tribunal require:
  - Periodic evaluation of the fixed-term appointee.
  - Adequate warning of performance deficiencies.
  - A reasonable opportunity to remedy deficiencies—i.e., adequate opportunity to demonstrate performance consistent with suitability for career employment.
- The Fixed-Term Monitoring Guidelines implement these principles by setting a timetable for periodic assessment and advising that a "critical aspect of the fixed-term monitoring process is timely attention to performance issues."

*Source: Tribunal findings and Fixed-Term Monitoring Guidelines as set out in the excerpt.*

### 132.     Was Applicant given an adequate opportunity to demonstrate performance consistent

### Was Applicant given an adequate opportunity to demonstrate performance consistent with suitability for career employment?

### Monitoring, feedback, and performance assessment
- Tribunal found Respondent met its responsibilities for periodic assessment and feedback throughout the fixed term.
- Evidence of frequent and detailed feedback:
  - Fixed-Term Performance Review/Second Full Performance Review signed December 8, 2009, noted finalization delays and that performance discussions had taken place in "five sessions over a six-week period."
  - Fixed-Term Performance Review/12-Month Performance Review signed February 18, 2009, identified two crucial areas for strengthening: "(i) analytical strengths; and (ii) communication skills."
  - Draft Second Full Performance Review circulated June 1, 2009, cautioned that analytical and communication skills "still remain below the critical mark."
- Supervisory remedial actions and training:
  - Assignments were tailored to develop and test identified weaknesses in analytical and communications skills.
  - When Applicant failed an assignment, the Director assigned another designed to test comparable skills and, in one instance, personally demonstrated execution by "rolling up [his] sleeves."
  - At the eighteen-month juncture, efforts included assigning a mentor and considering "seeking work opportunities outside [“Department 1”] that will match [Applicant]’s skills better." These efforts were discussed with HRD (Memorandum for Files from “Department 1” Director, August 12, 2009).

### Timing, structure, and application of Fixed-Term Monitoring Guidelines
- Tribunal accepted that minor deviations from the Guidelines’ timetables did not invalidate the non-conversion decision because the Guidelines provide "only indicative timing" and Applicant received continuous feedback.
- Fixed-Term Monitoring Guidelines emphasize timely attention to performance issues and consultation with the department’s SPM and ASPM when unsatisfactory performance emerges.
- When Applicant moved to "Department 2," he received monthly feedback sessions with the Assistant Director; the Assistant Director, observing persistent writing weaknesses, sought SPM advice and implemented objectives and monthly follow-up "something along the lines of a performance improvement plan."
- Memorandum for Files of January 27, 2010, summarized that four performance objectives had been set and noted that monthly follow-up sessions were anticipated.

### Warnings given and Applicant’s responses
- Applicant received repeated warnings about analytical and communications skills from early reviews, including at the six-month review and explicitly on June 1, 2009.
- Applicant responded with "a series of detailed memoranda" and extensive written rebuttals to supervisors’ assessments, which were part of the record before the Tribunal.
- Despite supervisory assistance and reassigned tasks to develop competencies, Applicant did not reach the level expected for conversion.

### Opportunity to be heard and decision-making process
- Tribunal found Applicant had ample opportunity to be heard through the fixed-term monitoring process and his written rebuttals.
- HRD Director took the final non-conversion decision after reviewing assessments from two Department Directors, discussing performance with both Directors, and reviewing Applicant’s submissions and performance evaluations.
  - HRD Director acknowledged Sections E and F of the relevant form were not completed but stated "[w]hat’s important is that the information that one needs to make the decision in terms of the performance is provided."
  - HRD Deputy Director characterized the decision-making process as a "very methodological, systematic decision," based on documentation and discussion.
- Tribunal distinguished this case from Ms. "C", noting that here Applicant had repeated warnings and opportunities to rebut evidence, and therefore no failure to afford a reasonable opportunity to be heard.

### Tribunal conclusions and institutional observations
- Main conclusions:
  - Applicant did not show that the Fund abused its discretion in deciding not to convert his fixed-term appointment to an open-ended appointment.
  - Applicant’s performance was evaluated periodically, including "on a monthly basis in the final six months" prior to the non-conversion decision.
  - Applicant received repeated warning that key competencies fell short and was given opportunities to improve.
  - Tribunal rejected the contention that the interdepartmental transfer materially affected the fairness of the non-conversion decision.
  - Tribunal held Applicant did not "meet the performance requirements [and] demonstrate potential for a career at the Fund," GAO No. 3, Section 3.02.1.3.
- Institutional note:
  - Although the transfer between Departments was inconsistent with internal law, the Tribunal found Applicant was not disadvantaged by that inconsistency regarding non-conversion.
  - Tribunal emphasized the institutional interest in consistent application of rules, noting inconsistent application "undermines trust among staff members and may foster grievances not easily remedied."

### Decision
- The Administrative Tribunal unanimously decided that:
  - The Application of Mr. "HH" is denied.

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_Source: https://www.imf.org/-/media/files/imfat/j2013-4.pdf_