## Administrative Tribunal of the International Monetary Fund — JUDGMENT No. 2021-1 (Ms. “PP” v. International Monetary Fund) ## Source details **Canonical URL:** [Administrative Tribunal of the International Monetary Fund — JUDGMENT No. 2021-1 (Ms. “PP” v. International Monetary Fund)](https://www.imf.org/-/media/files/imfat/j2021-1.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2021-1.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2021-1.pdf.json) --- ### Tribunal proceedings and procedural history - The Administrative Tribunal met on October 5, 8 and 9, 2020, composed of Judge Catherine M. O’Regan (President), and Judges Andrés Rigo Sureda and Edith Brown Weiss; oral arguments were held by videoconference. - Key procedural dates and filings: - Applicant filed the Application on August 12, 2019; transmitted to Respondent on August 19, 2019. - Respondent filed its Answer on December 2, 2019; Applicant filed a Reply on January 6, 2020; Respondent filed a Rejoinder on February 6, 2020. - The Tribunal modified the Rules of Procedure for an expedited exchange of preliminary pleadings (Rule XXI, paras. 2 and 3). - Provisional relief and interim orders: - Ms. “PP”, Order No. 2019-1 (October 10, 2019): Tribunal denied Applicant’s first request for provisional relief; held provisional relief extraordinary and Applicant had not shown “irreparable harm.” - Ms. “PP”, Order No. 2020-1 (January 13, 2020): Tribunal denied Applicant’s second request for provisional relief; deferred decision on Respondent’s request for “reasonable compensation” under Article XV for adjudication in the Judgment. - The Tribunal granted Applicant’s request for oral proceedings limited to oral arguments of counsel and held proceedings “in private” (granted March 4, 2020; oral proceedings held by videoconference on October 8, 2020). ### Core challenges, claims, and relief sought - Applicant challenged two HRD decisions: - A disciplinary decision finding failure to afford “fair and reasonable treatment” to a complainant G-5 employee and conduct that “reflected adversely on the Fund,” resulting in a formal written reprimand to remain in Applicant’s personnel file for three years (Staff Handbook, Ch. 11.02, Section 8.1(ii)). - An administrative decision directing Applicant to end the employment of the then current G-5 employee and stating the Fund would not support Applicant’s future G-5 visa applications, based on the position communicated by the U.S. State Department. - Applicant’s principal claims and remedies sought: - Rescission of HRD’s disciplinary and administrative decisions; removal from personnel file of all evidence of the investigation and decisions; restoration of eligibility to employ G-5 employees (including the then current G-5 employee). - Compensatory and moral damages sought: three years’ salary for due process failures and “extreme stress and loss of confidence,” plus an additional one year’s salary for further harm. - Legal fees and costs under Article XIV, Section 4 if Application is well-founded. - Respondent’s principal contentions: - The misconduct finding was supported by ample evidence; Applicant was afforded due process; the penalty was proportionate. - The Tribunal lacks jurisdiction over the administrative decision barring utilization of the G-5 program because it resulted from a decision of the U.S. Government; alternatively, the Fund acted reasonably if reviewable. ### Factual background and investigative record - Applicant status and G-5 use: - Applicant is a Fund staff member at Washington, D.C. headquarters, a non-U.S. national holding a G-4 visa, and utilized the G-5 visa program to hire non-immigrant foreign household workers. - In July 2017 Applicant employed one G-5 employee (the “then current G-5 employee”) and briefly employed a second G-5 employee (the “complainant G-5 employee”). - OII Investigation process and ROI (dates and standards): - OII issued a Notice of Investigation on August 30, 2017 listing allegations in eight numbered subparagraphs (i)–(viii). - Applicant provided a written response through counsel on September 18, 2017 and a supplementary memorandum on September 25, 2017; was interviewed with counsel present. - OII applied a “preponderance of the evidence” standard and issued a Report of Investigation dated November 14, 2017 to the HRD Director. - HRD Director provided the ROI to Applicant on November 27, 2017; Applicant submitted written Comments on January 5, 2018 and was interviewed by the HRD Director on April 18, 2018 with counsel present. - Key OII findings (as summarized in the ROI): - OII concluded Applicant had “engaged in abusive behavior and failed to provide [the complainant G-5 employee] with fair treatment” and substantiated findings that Applicant: (i) “forced [the complainant G-5 employee] to resign and coerced her to write and sign a termination letter”; (ii) “demanded that [the complainant G-5 employee] pay for the cost of her return airplane ticket”; (iii) “demanded that [the complainant G-5 employee] pay her damages, for terminating the contract and returning to [her home country]”; and (iv) “failed to pay the salary for [the complainant G-5 employee].” - OII did not substantiate allegations that Applicant subjected the complainant to verbal abuse, deprived her of meals for one day, demanded longer hours, or failed to pay overtime. ### HRD Director’s Decision (June 11, 2018) — findings and measures - HRD Director concluded Applicant “failed to afford [the complainant G-5 employee] fair and reasonable treatment, and engaged in conduct that reflected adversely on the Fund,” citing Staff Handbook, Annex 11.01.8, Section 2.8. - Factual findings cited by HRD Director included five numbered items (i)–(v): failure to provide required notice or payment in lieu; directing the complainant to sign a resignation letter; calling a local police officer in a manner upsetting to the complainant; spouse leaving the complainant at the airport knowing the flight was not until the following day; failure to pay wages due. - Disciplinary and administrative measures specified: - Conditional disciplinary measure: formal written reprimand to remain on Applicant’s personnel file for three years, contingent on proof of contractually required payment within 14 days of the June 11 memorandum (proof due by June 25, 2018). - Proposed second disciplinary measure (later rendered redundant): forfeiture of Fund support for any new G-5 employee for four years from July 24, 2017 until completion of management training approved by HRD. - Administrative measures taken “in the interests of the Fund” due to State Department position: - i. Direction to end the then-current G-5 employee’s employment no later than September 10, 2018. - ii. The Fund will not be able to support applications made by Applicant for a G-5 visa in future. - Finalization and subsequent steps: - On July 24, 2018, upon Applicant’s payment of the contractually required amount, HRD Director inserted the written reprimand in Applicant’s personnel file for a period of three years and stated: “I now consider this matter closed.” - Applicant sought reconsideration on October 2, 2018; request denied on October 19, 2018. - Fund submitted additional material to the State Department; State Department maintained its position and warned it “can withdraw the G5 benefits for the organization at any time.” ### Legal framework and standards applied by the Tribunal - Sources of applicable Fund internal law: - Staff Handbook, Ch. 11.02 (Misconduct and Disciplinary Procedures); Annex 11.01.8 (Requirements for the Employment of G5 Domestic Employees); Rule N-4 (Staff Regulations); Annex 11.01.8, Section 2.11 certification requirement. - Standard of review and questions for misconduct challenges: - Tribunal applies a heightened level of scrutiny for “quasi-judicial” misconduct decisions; review examines: - (i) the existence of the facts; - (ii) whether they legally amount to misconduct; - (iii) whether the sanction is provided for in the law of the organization; - (iv) whether the sanction is not significantly disproportionate to the offence; and - (v) whether the requirements of due process were observed. - Tribunal identified three principal questions: Did Applicant engage in misconduct under Fund internal law? Was Applicant accorded due process? If misconduct, was the penalty proportionate and properly determined? - Tribunal approach to regulatory vagueness/overbreadth: - Recognized deference to regulatory/policy decisions; found terms like “fairly and reasonably” and “reflect adversely on the integrity or reputation of the Fund” are open-ended but not so vague or overbroad as to be unfair in context because Fund law provides illustrative examples and detailed rules. ### Tribunal findings on misconduct, due process, and proportionality - Misconduct: - Tribunal sustained the Fund’s decision that Applicant engaged in misconduct in contravention of the Fund’s internal law (Annex 11.01.8, Section 2.8), finding Applicant failed to afford “fair and reasonable treatment” to a G-5 employee and engaged in conduct that “reflected adversely on the Fund.” - Pertinent facts relied upon by the Tribunal included: - (a) Applicant called ICE and summoned local police rather than waiting for Fund assistance, creating an intimidating encounter; - (b) Applicant’s spouse left the complainant at the airport knowing her return flight was not for “approximately another twenty-four hours”; - (c) issues around the return air ticket including termination letter wording, Applicant’s inquiry to the police officer about payment, and a video in which Applicant’s spouse stated Applicant and spouse had purchased the airplane ticket as “good Samaritans.” - Tribunal noted employer responsibility: the G-4 employer must pay G-5 transportation costs to the U.S. and from the U.S. following end of employment, a requirement codified in staff rules and reflected in host-country law and orientation materials. - Due process: - Tribunal found Applicant was afforded the process due: Notice of Investigation on August 30, 2017; written responses and interviews with counsel; ROI provided November 14, 2017 and HRD Director provided opportunity for written Comments and meeting on April 18, 2018; Applicant represented by counsel throughout. - Tribunal rejected claims that differences in emphasis between OII and HRD Director deprived Applicant of opportunity to respond. - Proportionality of sanction: - HRD Director imposed a “formal written reprimand” to remain in Applicant’s personnel file for three years (Staff Handbook, Ch. 11.02, Section 8.1(ii)). - Tribunal found the three-year formal written reprimand proportionate in the circumstances, taking into account aggravating facts and mitigating circumstances cited by HRD Director (including that Applicant “faced a difficult situation as an employer in unusual and stressful circumstances” and absence of evidence of unfair treatment of the then current G-5 employee). ### Jurisdictional and administrative-act analysis regarding the G-5 visa bar - Nature of the contested administrative action: - HRD Director characterized the direction to end the then-current G-5 employee’s employment and the statement that the Fund would not support future G-5 applications as administrative, not disciplinary. - Tribunal concluded HRD Director’s decision was an “administrative act” under Article II because it affected Applicant’s terms and conditions of employment by depriving her of the Fund’s sponsorship for G-5 household employees. - Deference to the U.S. State Department and abuse of discretion analysis: - Record showed substantial State Department follow-up and communications; HRD engaged with State Department and received warnings that the State Department “can withdraw the G5 benefits for the organization at any time.” - The Fund did not produce a written State Department decision; relied on oral exchanges and diplomatic communications, including a Diplomatic Note citing the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. - Tribunal found it was not evident why the Fund considered itself “obliged” to abandon its internal 4-year disciplinary bar, but concluded, given the Fund’s relationship with the host government, the Fund’s own finding of misconduct, and its attempts to persuade the State Department, the Tribunal could not conclude the Fund abused its discretion in deferring to the State Department’s communications. - Tribunal therefore found no abuse of discretion by the Fund in directing termination of the then-current G-5 employee’s employment and deciding not to support future G-5 applications by Applicant. ### Article XV request for “reasonable compensation” (costs) - Article XV criteria (as cited): - Tribunal may order reasonable compensation by the applicant to the Fund if it finds that: - a. the application was manifestly without foundation either in fact or under existing law, unless Applicant demonstrates the application was a good faith argument to extend/modify/reverse law; or - b. the applicant intended to delay resolution or to harass the Fund or its officers. - The amount awarded shall be collected by deductions from payments owed by the Fund to the applicant or otherwise, as determined by the Managing Director. - Tribunal assessment and precedents: - Tribunal will exercise Article XV sparingly; precedent (Mr. “V”, IMFAT Judgment No. 1999-2) emphasized the high bar for Article XV. - Given the novel circumstances of Applicant’s second request for provisional relief, Tribunal could not say the request was “manifestly without foundation.” - Decision on Article XV: - Respondent’s request for “reasonable compensation” under Article XV for the cost of responding to Applicant’s second request for provisional relief was denied. ### Final conclusions and formal decision - Tribunal conclusions (paras. 139–142): - First: Tribunal sustains the Fund’s misconduct decision that Applicant failed to afford “fair and reasonable treatment” to a G-5 employee and engaged in conduct that “reflected adversely on the Fund”; evidence supports the decision; Applicant did not show lack of due process or disproportionate sanction; challenge to rule fairness is without merit. - Second: Tribunal finds the Fund did not abuse its discretion in deferring to communications from the U.S. State Department regarding Applicant’s utilization of the G-5 visa program. - Third: Tribunal denies Respondent’s Article XV request for “reasonable compensation” for costs of responding to Applicant’s second request for provisional relief. - Formal decision (unanimous): 1. The Application of Ms. “PP” is denied. 2. Respondent’s request for “reasonable compensation” from Ms. “PP”, pursuant to Article XV of the Statute, for the cost of responding to her second request for provisional relief is denied. *Administrative Tribunal of the International Monetary Fund — Washington, D.C., May 20, 2021. JUDGMENT No. 2021-1 (Ms. “PP” v. International Monetary Fund).* ### INTRODUCTION ........................................................................................................... ### INTRODUCTION ### Tribunal proceedings and session - The Administrative Tribunal of the International Monetary Fund met on October 5, 8 and 9, 2020, composed of Judge Catherine M. O’Regan (President), and Judges Andrés Rigo Sureda and Edith Brown Weiss. - The session, including oral arguments, was held by videoconference coordinated by the Tribunal’s Registry. - Parties and representation: - Applicant: Ms. “PP”, represented by Mr. Peter C. Hansen and Mr. J. Michael King, Law Offices of Peter C. Hansen, LLC. - Respondent: International Monetary Fund, represented in written pleadings by Ms. Diana Benoit and Mr. Andrew Giddings, Senior Counsels in the IMF Legal Department; Mr. Andrew Giddings and Ms. Juliet Johnson appeared in oral proceedings. ### Core challenges and contested decisions - Applicant challenges two decisions by the Director of the Human Resources Department (HRD): - A disciplinary decision finding Applicant failed to afford “fair and reasonable treatment” to a G-5 household employee (the “complainant G-5 employee”) and engaged in conduct that “reflected adversely on the Fund,” resulting in a formal written reprimand to remain in Applicant’s personnel file for three years (Staff Handbook, Ch. 11.02, Section 8.1(ii)). - An administrative decision directing Applicant to end the employment of a different G-5 household employee (the “then current G-5 employee”) and stating the Fund would not be able to support Applicant’s future G-5 visa applications, based on the “position communicated to [the Fund] by the [U.S.] State Department.” ### Applicant’s principal claims and remedies sought - Applicant contends the misconduct finding is factually unsubstantiated, the standards unreasonable, and the disciplinary process unfair. - Applicant contends the Fund should protect staff privileges and immunities, including G-4 holders’ ability to employ household employees under the G-5 visa program, and that the U.S. State Department’s directive is not enforceable under the Fund’s internal law. - Applicant seeks: - Rescission of HRD’s disciplinary and administrative decisions. - Removal from Applicant’s personnel file of all evidence of the misconduct investigation and decisions. - Restoration of eligibility to employ G-5 employees, including to employ the then current G-5 employee. - Three years’ salary as compensatory and moral damages for due process failures and “extreme stress and loss of confidence” suffered by Applicant and family. - Legal fees and costs, to be awarded by the Tribunal if the Application is well-founded (Article XIV, Section 4 of the Statute). ### Respondent’s principal contentions - Respondent maintains the disciplinary decision should be sustained because: - The finding of misconduct was supported by ample evidence. - Applicant was afforded due process. - The penalty imposed was proportionate. - Regarding the administrative decision barring utilization of the G-5 visa program, Respondent argues: - The Tribunal lacks jurisdiction because the contested decision was made by the U.S. Government (the State Department). - Alternatively, if the Fund’s actions are reviewable, the Fund acted reasonably and in accordance with its responsibilities to both the U.S. Government and Applicant. ### Procedural history and interim decisions - Key filings and dates: - Applicant filed the Application on August 12, 2019; transmitted to Respondent on August 19, 2019. - Registrar circulated a notice summarizing the issues on August 19, 2019. - The President of the Tribunal modified the Rules of Procedure for an expedited exchange of preliminary pleadings (Rule XXI, paras. 2 and 3). - Respondent filed its Answer on December 2, 2019; Applicant filed a Reply on January 6, 2020; Respondent filed a Rejoinder on February 6, 2020. - Provisional relief and related Orders: - Applicant’s first request for provisional relief sought (1) prohibition on requiring dismissal of the then current G-5 employee during the proceedings and (2) requiring the Fund to secure visa actions (e.g., an I94 renewal). The Tribunal denied that request in Ms. “PP”, Order No. 2019-1 (October 10, 2019). - The Tribunal held provisional relief is extraordinary and that Applicant had not shown “irreparable harm.” - The Fund filed a novel “motion to dismiss in part” arguing lack of jurisdiction over the administrative decision; the Tribunal admitted the motion but dismissed it, preferring to decide jurisdiction after full briefing on the merits. - Applicant filed a second request for provisional relief seeking that the Fund transmit the I-94 application to USCIS so the U.S. Government could decide the then current G-5 employee’s visa. The Tribunal denied the second request in Ms. “PP”, Order No. 2020-1 (January 13, 2020). - The Tribunal found the second request suffered the same defects as the first: Applicant did not substantiate irreparable harm and re-opening questions already resolved by Order No. 2019-1 would disserve judicial economy and certainty. - Respondent requested “reasonable compensation” from Applicant for the cost of responding to the second request for provisional relief; the Tribunal reserved consideration of Respondent’s request for “reasonable compensation” pursuant to Article XV of the Statute for adjudication in the Judgment. ### Issues to be adjudicated in the Judgment - Whether the Tribunal shall sustain the Fund’s misconduct decision against Applicant, including: - The applicable standard of review. - The legal framework governing the alleged misconduct. - Whether Applicant engaged in misconduct under the Fund’s internal law. - Whether Applicant was afforded due process. - Whether the three-year written reprimand was proportionate and procedurally proper. - Whether Applicant has recourse to the Tribunal regarding the decision barring utilization of the G-5 visa program and, if so, whether Applicant has prevailed on that challenge, including: - Whether the challenged action is an “administrative act” under Article II of the Tribunal’s Statute. - Whether the Fund abused its discretion in deferring to the State Department’s decision. - Whether the Tribunal shall grant Respondent’s request for “reasonable compensation” from Applicant under Article XV of the Statute for costs of responding to the second request for provisional relief. _Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2021-1 (Ms. “PP” v. International Monetary Fund)_ ### 18. Additionally, in Ms. “PP”, Order No. 2020-1, the Tribunal deferred a decision on a ### 18. Additionally, in Ms. “PP”, Order No. 2020-1, the Tribunal deferred a decision on a ### Applicant’s request for anonymity - Applicant requested anonymity pursuant to Rule XXII of the Tribunal’s Rules of Procedure. - In Ms. “PP”, Order No. 2019-1, paras. 5-6, the Tribunal granted anonymity because the case involves a challenge to a misconduct decision and the evidence has implications for the personal privacy of Applicant and other persons. - The Tribunal stated that shielding identities in disputes concerning “alleged misconduct . . . or matters of personal privacy such as health . . . or family relations” is a core ground for granting anonymity pursuant to Rule XXII, citing Ms. “AA”, IMFAT Judgment No. 2006-5, para. 14. - Additional precedents cited: Ms. “EE”, IMFAT Judgment No. 2010-4, para. 11; Ms. “BB”, IMFAT Judgment No. 2007-4, para. 20. ### Applicant’s requests for production of documents (Rule XVII) - Applicant requested production of: - (1) the Office of Internal Investigations (OII)’s Report of Investigation (ROI); - (2) “all written communications, notes of conversation, and all other materials relating to the Fund’s communications with any and all parts of the U.S. Government, including specifically the State Department, with regard to the situations of [Applicant] and [her then current G-5 employee]”; - (3) a “written report on the history and scope of the Fund’s G5 program, including all controversies, revocations of privileges, and any other noteworthy events, involving the Fund’s G5 program.” - Tribunal actions during expedited exchange: - The Tribunal asked the Fund to respond to Document Requests Nos. 2 and 3 to facilitate decision on Applicant’s then pending request for provisional relief. - In Ms. “PP”, Order No. 2019-1, paras. 11-13, the Tribunal noted the Fund had produced documents responsive to Document Request No. 2 and placed the Fund under a continuing obligation to produce further responsive documents as proceedings on the merits continued. - Respondent attached additional documentation responsive to Document Request No. 2 to its Answer and Rejoinder. - Document Request No. 3 was denied in Ms. “PP”, Order No. 2019-1, para. 18, as “unduly burdensome” under Rule XVII and overbroad beyond the scope of the controversy. - Fund’s Answer on the merits: - The Fund stated Applicant had previously been provided with the ROI and annexed the ROI to its Answer. ### Applicant’s request for oral proceedings (Article XII; Rule XIII) - Article XII of the Tribunal’s Statute: Tribunal decides in each case whether oral proceedings are warranted. - Rule XIII, para. 1: proceedings held if the Tribunal deems them useful. - Applicant requested oral proceedings limited to oral arguments by the parties’ counsel (Rule XIII, para. 6). - The Fund did not view oral proceedings as necessary given the extensive record, but did not object to oral arguments if the Tribunal found them useful. - Tribunal practice: - Recent practice has been to hold oral proceedings when expressly requested by applicants, limited to oral arguments of counsel, to clarify legal issues and probe disputes of fact. Cited cases: Mr. “LL”, IMFAT Judgment No. 2019-1, para. 27; Ms. “NN”, IMFAT Judgment No. 2017-2, para. 23; Mr. “KK”, IMFAT Judgment No. 2016-2, paras. 43-44. - Tribunal decision and scheduling: - On March 4, 2020, the Tribunal granted Applicant’s request for oral proceedings limited to oral arguments of counsel and decided proceedings would be “held in private,” per Article XII and Rule XIII, para. 1, given anonymity. - Oral proceedings initially scheduled for April 2020 were postponed due to COVID-19 disruptions and to allow amendment of Article XI of the Tribunal’s Statute to permit electronic sessions. - Oral proceedings were held by videoconference on October 8, 2020. ### Factual background — key facts (some disputed) - Applicant status and visas: - Applicant is a Fund staff member at Washington, D.C. headquarters. - Applicant is a non-U.S. national and holds a G-4 visa. - Applicant utilized the G-5 visa program to hire non-immigrant foreign household workers. - Events leading to dispute: - In July 2017, Applicant employed one G-5 employee (the “then current G-5 employee”) and briefly employed a second G-5 employee (the “complainant G-5 employee”), who departed and returned to her home country within days. - The complainant G-5 employee filed identical complaints with the U.S. Department of State via the U.S. Embassy and with the Fund alleging unfair treatment by Applicant. - The investigation and disposition of those complaints followed two paths; how they intersected and communications between the State Department and the Fund are contested. ### Complaint filed with the State Department - Record limitations: limited information about State Department investigation and disposition, which is said to have formed the basis for what the HRD Director termed the “administrative” decision barring Applicant’s utilization of the G-5 program. - The record shows State Department investigators visited Applicant’s home and interviewed Applicant’s spouse and the then current G-5 employee; Applicant herself was not interviewed. - 2017 communications between Fund and State Department: - OII case activity log records a September 19, 2017 phone call in which a State Department representative advised Fund representatives that it “. . . consider[ed] the allegations against [Applicant] very serious and that even though their diplomatic security unit has decided not to prosecute the case, [the State Department] is still considering to revoke [Applicant]’s privilege to hire G5 employees.” ### Complaint filed with the Fund; OII Investigation (Staff Handbook references) - Process overview: - Complaint underwent a Preliminary Inquiry by OII to determine whether the matter warranted further investigation (Staff Handbook, Ch. 11.02, Section 4.1). - HRD Director authorized OII to open an Investigation (Staff Handbook, Ch. 11.02, Section 5). - OII Investigation purpose: “. . . establish the facts and circumstances concerning alleged misconduct so that the responsible Fund official may determine whether misconduct has been committed and, if so, what, if any, disciplinary action is appropriate.” (Staff Handbook, Ch. 11.02, Section 5.1.) - For a staff member below managerial level, the responsible official was the HRD Director (Staff Handbook, Ch. 11.02, Section 3.1). - OII Investigation culminated in an ROI to the HRD Director, who took the disciplinary decision challenged before the Tribunal. - Notice of Investigation and Applicant’s responses: - On August 30, 2017, OII issued a Notice of Investigation identifying allegations that Applicant: - (i) “[f]orced [the complainant G-5 employee] to resign and coerced her to write and sign a termination letter claiming that she was resigning voluntarily,” while threatening to call the police and immigration officials to have her deported; - (ii) “[d]emanded that [the complainant G-5 employee] pay the cost of her return airplane ticket to [her home country]”; - (iii) “[s]ubjected her to verbal abuse, deprived her of meals for one day and left her in the airport” nearly 24 hours before her return flight; - (iv) “[d]emanded that [the complainant G-5 employee] pay [Applicant] the equivalent of one-month salary, for terminating the contract”; - (v) “[d]emanded that the complainant G-5 employee reimburse [Applicant]” for fees paid for training courses for the employee; - (vi) failed to pay the complainant G-5 employee wages for the period she was employed by Applicant; - (vii) demanded that the complainant G-5 employee work longer hours; and - (viii) failed to pay overtime pay for work in excess of the hours stipulated in the G-5 Employment Contract. - The Notice advised Applicant she could explain her position orally and in writing and be assisted by counsel; it appended excerpts of applicable rules, regulations, and standards of conduct. - On September 18, 2017, Applicant provided a written response through counsel denying the allegations in their entirety and filed a supplementary memorandum on September 25, 2017 after an OII interview accompanied by counsel. - Applicant’s position: the complainant G-5 employee breached the employment contract, experienced an emotional breakdown, insisted on returning home, and interventions by others complicated the situation. - Applicant asserted she sought advice from the law firm engaged by the Fund on G-5 matters; the law firm’s paralegal allegedly confirmed the employer was responsible for the air ticket and that the G-5 must depart immediately once the employment relationship was formally terminated. - Applicant stated the complainant G-5 employee offered to pay for the return ticket, and that Applicant and her spouse purchased the ticket and provided a cash payment as salary and to ensure funds for the trip; Applicant asserted the complainant G-5 employee wrote a statement affirming she was leaving voluntarily. - Applicant’s spouse sought advice from Immigration and Customs Enforcement (ICE) and local police; a police officer allegedly advised Applicant to buy the return ticket and help the complainant G-5 employee get to the airport. - Report of Investigation (ROI) dated November 14, 2017: - ROI was issued to the HRD Director and includes transcripts of interviews with: the complainant G-5 employee; the complainant’s relative; the relative’s employers; Applicant; Applicant’s spouse; the police officer called to Applicant’s home; and Applicant’s then current G-5 employee. - Documentary evidence in the ROI includes the employment contract and correspondence between Applicant and a paralegal of the law firm handling G-5 matters. The paralegal stated: “Because the G-5 has terminated their own employment, you will only be required to provide payment for the return trip back to the G-5’s home country. The G-5 will be required to depart the country immediately once the employment relationship is officially terminated.” The paralegal also advised that the “G-5 will not be required to pay any monetary penalty, as the payment of one month’s wages in the absence of notice of termination is an obligation of the employer but not of the G-5.” - OII applied a “preponderance of the evidence” standard and concluded Applicant had “engaged in abusive behavior and failed to provide [the complainant G-5 employee] with fair treatment” in violation of staff rules. - OII findings: Applicant (i) “forced [the complainant G-5 employee] to resign and coerced her to write and sign a termination letter claiming that she was resigning voluntarily”; (ii) “demanded that [the complainant G-5 employee] pay for the cost of her return airplane ticket to [her home country]”; (iii) “demanded that [the complainant G-5 employee] pay her damages, for terminating the contract and returning to [her home country]”; and (iv) “failed to pay the salary for [the complainant G-5 employee].” - OII found allegations not substantiated: that Applicant subjected the complainant G-5 employee to verbal abuse; deprived her of meals for one day; demanded longer hours; or failed to pay overtime. - Applicant’s response to the ROI: - On November 27, 2017, HRD Director provided Applicant with the ROI and invited written comments. - Applicant filed written Comments through counsel on January 5, 2018, asserting the complainant G-5 employee chose to resign, the termination letter recorded a resignation, and there was no coercion. - Applicant maintained she did not commit misconduct regarding payment for the return air ticket (which she ultimately paid), demands for damages or reimbursement for training fees, or failure to pay for work performed. - Applicant supplied a detailed chronology and was interviewed by the HRD Director on April 18, 2018 in the presence of counsel. ### 2018 communications between the Fund and the State Department; administrative decision - Prior to notifying Applicant of a decision, the HRD Director consulted with the State Department about the misconduct decision. - As a result of consultation with the State Department, the HRD Director concluded she was “obliged” to make an administrative decision that: - Applicant should terminate the employment of the then current G-5 employee by September 10, 2018; and - the Fund would no longer support applications for Applicant to employ a G-5 in future. *International Monetary Fund Administrative Tribunal Judgment.* ### 50. At the Grievance Committee pre-hearing conference, a senior HRD official stated ### j2021-1 - 50. At the Grievance Committee pre-hearing conference, a senior HRD official stated ### HRD senior official statement and State Department role - Senior HRD official reported substantial follow up from the United States Department of State, which had been "chasing us to say what have you done about this, what decision have you made." - HR director consulted with the State Department about the proposed decision to allow the then-current G-5 employee to remain in Applicant’s employment. - The State Department indicated that "if a G5 remains in [Applicant]’s employment, we would consider that to adversely reflect on the Fund’s reputation." ### HRD Director’s Decision (June 11, 2018) — findings of misconduct - HRD Director concluded Applicant "failed to afford [the complainant G-5 employee] fair and reasonable treatment, and engaged in conduct that reflected adversely on the Fund," citing Staff Handbook, Annex 11.01.8, Section 2.8 (Fair Treatment of G5 Employee). - Factual findings supporting misconduct determination: - (i) Applicant "ended [the complainant G-5 employee]’s employment" for reasons other than the employee’s conduct, and failed to provide at least one month’s notice or make payment in lieu, as required by Section 14 of the G-5 Contract. - (ii) Applicant "directed [the complainant G-5 employee] to write and sign a letter indicating that she had resigned voluntarily". - (iii) Applicant called a local police officer to the home "in [the complainant G-5 employee]’s presence and in a way which was upsetting to her" rather than waiting until the next day to seek Fund guidance. - (iv) Applicant’s spouse left the complainant G-5 employee at the airport knowing that her flight was not to depart until the evening of the following day. - (v) Applicant failed to pay wages due for work performed by the complainant G-5 employee during the period of her employment. - HRD Director determined these findings "warrant a disciplinary measure." ### Disciplinary and administrative measures specified in HRD Decision - Conditional disciplinary measure (contingent on proof of contractually required payment within 14 days of the June 11 memorandum): - Formal written reprimand to remain on Applicant’s personnel file for three years, assuming proof of payment by June 25, 2018. - Proposed second disciplinary measure (rendered redundant by State Department action): - Forfeiture of Fund support for any new G-5 employee for four years from July 24, 2017 until completion of management training approved by HRD. - Administrative decisions taken "in the interests of the Fund" due to State Department position: - i. Direction to Applicant to end the then-current G-5 employee’s employment in her household no later than September 10, 2018. - ii. The Fund will not be able to support applications made by Applicant for a G-5 visa in future. - HRD Director characterized the two decisions in the immediately preceding bullet points as administrative, and not disciplinary. - HRD Decision noted that the then-current G-5 employee "remains free to seek work as a G-5 employee in another household" and the Fund offered assistance in advertising her services. ### Finalization of disciplinary measure and subsequent procedural steps - On July 24, 2018, upon Applicant’s payment of the contractually required amount, HRD Director inserted the written reprimand in Applicant’s personnel file for a period of three years as the "final decision" on the disciplinary measure and stated: "I now consider this matter closed." - Applicant sought reconsideration on October 2, 2018 based on asserted material new evidence; request denied on October 19, 2018. - Fund submitted the additional documentary material to the State Department and sought clarification; State Department maintained its position and warned it "can withdraw the G5 benefits for the organization at any time." - On November 6, 2018, HRD official communicated to Applicant’s counsel that the State Department had stated it "has consistently withdrawn G-5 benefits where there have been even minor infractions of program requirements and this was their final comment." ### Grievance Committee, Tribunal jurisdiction, and procedural history - November 27, 2018: Applicant filed a Grievance with the Fund’s Grievance Committee challenging the misconduct finding and the "disciplinary" and "administrative" decisions; sought provisional relief to suspend the termination direction during proceedings. - Grievance Committee pre-hearing conference considered provisional relief, Fund’s motion to dismiss part of the Grievance, and which witnesses might be called; Chair emphasized Committee’s role to assess witness credibility independently. - June 8, 2019: Grievance Committee granted Fund’s motion to dismiss for lack of jurisdiction that portion of the Grievance challenging the decision to bar Applicant from employing G-5 employees; denied Applicant’s request for provisional relief. - June 25, 2019: Parties agreed pursuant to Article V, Section 4 of the Tribunal’s Statute to bring the case directly to the Tribunal, removing it from the Grievance Committee’s docket; as a result, the Tribunal did not have a record of adversary evidentiary proceedings on the merits before it. - August 12, 2019: Applicant filed her Application with the Administrative Tribunal. ### Parties’ principal contentions (summarized) - Applicant’s principal contentions include: - 1. The Fund failed to substantiate the misconduct decision on the facts. - 2. The Fund applied vague and unfair standards of conduct. - 3. The Fund did not afford Applicant due process in the misconduct proceedings. - 4. The Tribunal has jurisdiction to consider the challenge to the decision barring Applicant’s utilization of the G-5 visa program. - 5. The Fund failed in responsibilities to Applicant regarding the G-5 visa privilege. - 6. The Fund’s request for "reasonable compensation" under Article XV for costs of responding to Applicant’s second request for provisional relief should be denied. - 7. Relief sought by Applicant: - a. rescission of HRD’s decisions and sanctions against Applicant; - b. removal from Applicant’s personnel file of all evidence of the misconduct investigation and decisions; - c. restoration of Applicant’s eligibility to employ G-5 employees, including to employ the then current G-5 employee; - d. three years’ salary as compensatory and moral damages, and an additional one year’s salary for further harm; - e. legal fees and costs under Article XIV, Section 4 if Application is well-founded in whole or in part. - Respondent’s principal contentions include: - 1. The finding of misconduct is supported by ample evidence. - 2. Applicant was afforded due process. - 3. The formal written reprimand for three years was proportionate. - 4. Challenge to the decision barring G-5 utilization is a decision of the U.S. Government and outside Tribunal jurisdiction. - 5. If Tribunal finds the bar results from Fund actions subject to review, the Fund acted reasonably. - 6. Respondent should be awarded "reasonable compensation" from Applicant under Article XV for costs of responding to her second request for provisional relief. ### Relevant Fund internal law provisions cited - Rule N-4 (Staff Regulations): Staff must "maintain standards of conduct compatible with their position as international civil servants" and "exercise the utmost discretion in matters of official business." Adopted September 25, 1946, amended June 22, 1979. - Staff Handbook, Ch. 11.01, Section 12.1 (Staff Obligations in Personal Capacity): Staff must refrain from unlawful acts or other actions in personal capacity that may "reflect adversely on the integrity or reputation of the Fund and/or its staff," including failure to comply with legal obligations with respect to a G5 domestic employee ("Annex 11.01.8"). - Staff Handbook, Annex 11.01.8 (Requirements for the Employment of G5 Domestic Employees): - Establishes the Fund’s Code of Conduct for the Employment of G5 Employees and "establishes minimum standards for staff members employing G5 employees." - Compliance with the Code’s requirements is mandatory and subject to audit; violations "may result in disciplinary action against the staff member, up to and including termination of employment." - Section 2.1: "The staff member must comply with all Federal, State, and local laws in the United States." *International Monetary Fund Administrative Tribunal case materials (case file j2021-1).* ### 2.2 Contract of Employment (“Contract”) ### 2.2 Contract of Employment (“Contract”) ### Parties to Contract; Establishing Employer-Employee Relationship - Contract must use the standard contract template available from HRD’s Visa Services Office (the “contract”) and be provided in writing and signed by the staff member to the prospective G5 employee. - Contract shall be in English and, if the G5 employee does not understand English, also in another language that he or she understands. - Contract must include names, addresses, countries of citizenship and U.S. visa status of the staff member and the G5 employee. - A bona fide employer-employee relationship must be established through the contract; consular officers may require proof that the staff member has the means to employ a G5 employee. - Annual surveys of G5 employees, particularly family members, will be reviewed to monitor maintenance of the employer-employee relationship and compliance with U.S. laws and Fund rules. ### Description of Duties - Contract shall state the G5 employee’s position (e.g., housekeeper, handyman, cook, gardener, babysitter, caretaker, etc) and describe all duties to be performed. - Contract shall state that the G5 employee may work only for the staff member while in the United States and will not accept any other employment. ### Hours of Work - Contract shall define normal working hours and number of hours per week. - Contract shall specify that a minimum of 35 hours per week of paid employment will be provided. - Hours in which the G5 employee is “on call” will count as paid work hours. - Daily time records will be signed by the staff member and the G5 employee, and a copy will be kept by both parties. ### Time-off from Work - Contract shall state that the G5 employee will be given a minimum of one full day off each week. - Contract shall specify the number of paid holidays, sick days, and vacation days the staff member will provide. - It is customary in the United States for employers to provide paid time-off for holidays, vacation days, and sick leave. ### Minimum Wage and Wage Payment - Contract shall state the hourly wage, which should be set at or above the minimum wage under U.S. federal, state, and county law, whichever is higher. - Wages shall be paid on a weekly or biweekly basis by check or electronic fund transfer to the G5 employee’s bank account. - Pay records shall be provided without charge to the G5 employee. - Bank account must be based in the United States and be opened within 30 days of the G5 employee’s arrival in the United States. - Staff member, and family and household members, must not have access to the G5 employee’s bank account(s); this must be stated in the contract. - Proof of payment of wages must be available to the Fund upon request. ### Overtime Pay - Work in excess of 40 hours per week must be paid at a rate that is at least the minimum rate provided for by Federal, State, local or other applicable law. - In many jurisdictions, this is one and one half times the base hourly wage. ### Workers’ Compensation - Staff members residing in the District of Columbia or Maryland will obtain and maintain worker’s compensation insurance during the entire employment period of their G5 employee. - Virginia does not require worker's compensation insurance for G5 employees; however, it is encouraged. ### Tax Payments and Social Security - Contract shall state that the staff member must obtain a Social Security card within 30 days for the G5 employee. - Staff member must pay the employer’s share of Social Security taxes and Medicare and any other required taxes or contributions, including federal and state unemployment insurance, on all wages paid. - Contract shall state that, unless paid by the staff member, the G5 employee must pay applicable Federal and State income taxes on all wages and the G5 employee’s share of Social Security and Medicare. ### Live-in Arrangement; Meals and Lodging - Contract shall state whether the G5 employee will reside with the staff member. - If the G5 employee resides with the staff member, three meals per day shall be provided. - If the G5 employee does not reside with the staff member, one or more meals per day shall be provided. - In either case, no deduction from the G5 employee’s wages will be applied for meals and lodging and the employee will not be charged for meals or lodging. - Staff members residing in Montgomery County, Maryland, are required to provide the G5 employee with a private room for sleeping with a door that can be locked, and reasonable access to a kitchen, bathroom, and laundry facilities. ### Medical Insurance - Contract shall state whether the G5 employee will be offered health insurance and, if so, at what cost to the G5 employee. - Staff member shall not deduct the cost of health insurance from the G5 employee’s wages; the G5 employee may pay separately for health insurance. - The Affordable Care Act requires G5 employees to obtain health insurance while working in the United States; staff members are strongly encouraged to assist G5 employees in obtaining such coverage. ### G5 Employee Dependents - If accompanied by dependents, contract shall state whether benefits (e.g., health insurance, meals, lodging, household items, clothing) will be provided to dependents and, if so, the cost to the G5 employee, if any. - Staff member shall not deduct the cost of these from the G5 employee’s wages; the G5 employee may pay separately for these benefits. - If accompanied by minor dependents, contract shall state that children between the ages of 6 and 17 are generally required to attend school in the U.S. during the school year. ### Travel, Transportation, and Other Costs - Contract shall state that the G5 employee will be provided with round-trip transportation to and from the United States, at no cost to the G5 employee, for initial travel to the United States and to return home after termination. - Staff member is responsible for travel expenses for any trips where the G5 employee has been asked to accompany the staff member or family. - Contract shall state whether any other regular costs will be charged to the G5 employee (e.g., local transportation), and if so, the amount. ### Termination of Employment and Departure - Either party may terminate the agreement at any time for cause (e.g., G5 employee misconduct or incompetence). - Termination without cause requires at least one month’s notice by the terminating party. - When the staff member terminates without cause, payment of one month’s wages will be paid to the G5 employee. - If employment is terminated for any reason, the G5 employee will not be legally permitted to remain in the United States and will be required to promptly leave the country. - Staff member is responsible for reporting all terminations of employment to the Fund and must notify HRD via the self-service portal whether the G5 employee has departed the United States; the Fund will report this information to the U.S. State Department. - A G5 employee who changes employers is required to depart the United States and initiate the visa application process abroad. ### Other Terms of Employment - a. Requirements of Employment: - If required to wear a uniform, the staff member will provide the uniform and pay for cleaning at no expense to the G5 employee. - G5 employee’s presence in the staff member’s residence will not be required except during working hours. - Passport, visa, I-94 form, copy of the contract and other personal property will not be withheld for any reason. - b. Legal Provisions: - Other agreed terms must be consistent with the Code. - Contract will be interpreted and applied in accordance with the laws of the place of the staff member's U.S. residence during employment. - Once signed, the contract may not be modified except by a written addendum, a copy of which must be promptly filed with HRD. - c. Obligations Regarding U.S. Immigration Documents: - The I-94 form (entry/departure record), not the G5 visa, governs the validity of the G5 employee’s stay in the U.S. - If I-94 is marked “D/S” (Duration of Service) in the date entry box, it is incorrect and the staff member should immediately contact HRD to correct the error. - Contract shall state that staff member is required to ensure that form is submitted to the U.S. State Department for extension sixty (60) days prior to expiration; failure to submit prior to expiry will result in loss of legal status in the US, requirement to leave the US, and inability to obtain a G5 visa in future. - Contract shall state that both parties are required to complete U.S. Citizen and Immigration Services (USCIS) Form I-9 Employment Eligibility Verification (“I-9 form”) at the beginning of employment. - Staff member is required to keep the I-9 form for three years after the date of hire or one year after the date employment ends, whichever is later. - d. Duration of the Contract: - Contract shall state that the term will be at least one year, stating a date of commencement and a date of expiration. - Contract may be extended by mutual agreement. - e. Deduction of Expenses: - Staff member shall not deduct any expenses incurred by the G5 employee (including medical care, medical insurance, travel, telephone, household items, clothing, etc.) from wages. - Staff member may deduct the G5 employee’s share of Social Security and Medicare taxes and may withhold federal, state, and local income taxes on behalf of the G5 employee if requested. ### Complaints Procedure; Protection Against Interference or Retaliation - Contract shall state that the G5 employee has the right to make a complaint, or have a complaint made on his or her behalf, with respect to fair treatment under this Code with the Fund’s Ethics Office, HRD, the National Human Trafficking Resource Center or the Trafficking in Persons and Work Exploitation Task Force Complaint Line, and provide telephone numbers. - Contract shall state that the staff member may not interfere with such complaints or retaliate against the G5 employee for any good faith statement or action by or on behalf of the G5 employee. - This procedure does not prevent the G5 employee from notifying governmental authorities or taking legal action. ### Notice, Orientation, Seminars, and Record-Keeping - Visa services: HRD’s Visa Services Office (VSO) provides visa services. - An annual fee of $300 will be assessed by HRD after April 15th each year when staff members submit the annual survey; staff who employed a G5 full or part of the year are required to pay the fee. - Annual fee will be waived for staff members who use professional assistance as described in paragraph 2.6. - Staff members are prohibited from requiring the G5 employee to pay all or part of the $300 annual fee. - Staff members must inform HRD within three days of learning that the G5 visa was issued or the visa application was denied. - Staff members must contact HRD within three days of deciding to withdraw the offer or after learning the prospective G5 no longer intends to work. - Staff members must give notice to HRD within three days of the employment or arrival in the United States of the G5 employee, and within three days of termination of employment. - Orientation: - Staff member and G5 employee must attend orientation as soon as possible after arrival. - G5 employee will attend during working hours or be paid at the applicable rate for attendance. - Failure to attend orientation within six months after commencement may result in the Fund withdrawing sponsorship of the G5 visa. - Refresher seminars: - Both must attend a refresher seminar every three years for the duration of employment. - Staff member must permit attendance during working hours or pay contractual wage rate for attendance. - Fund may require periodic meetings to monitor compliance; staff member must permit attendance during working hours or pay contractual wage rate. - Record-keeping: - Staff member must maintain adequate records during employment and for not less than three whole calendar years following termination. - Required records include: - a copy of the contract and any addendums; - proof of wage payments by canceled checks or electronic fund transfers (signed receipts for cash payments are not permissible), IRS Schedule H, W-3, and W-2 forms; - record of daily and weekly hours worked, including overtime, and any deductions; - proof of payment of Social Security and Medicare taxes (IRS Schedule H); - proof of payment of any required federal and state unemployment taxes; - proof of payment of Worker’s Compensation insurance premiums; - copies of the G5 visa(s), I-9 and I-94 form(s), and other proof of eligibility for employment; - copy of the G5 employee’s social security card; - copies of any health insurance policy and proof of payment by the staff member for insurance premiums, to the extent provided by the contract; - information on the G5 employee and any accompanying dependents, including name(s), permanent address(es) and telephone number(s), date(s) of birth, and other relevant information. - Staff member may use professional assistance for record keeping, payroll, and tax withholding. ### Audit, Investigation, Fair Treatment, and Disclosure of Intimate Relationships - Audit of Records: - Staff member’s records are subject to audit periodically or in response to a complaint. - Staff member shall cooperate fully and unconditionally with audit requests by the Fund. - Investigation of Complaints: - In connection with a complaint by or on behalf of a G5 employee, or by a governmental authority, the Fund may investigate, request relevant records, and make inquiries consistent with Fund procedures. - Fair Treatment: - Staff member shall treat the G5 employee fairly and reasonably and shall not abuse the privilege of employing a G5 employee or engage in conduct reflecting adversely on the Fund. - Staff member shall not retaliate against the G5 employee in connection with audits or investigations. - Violations may result in loss of the privilege to employ a G5 employee and other disciplinary action, up to and including termination of employment. - Disclosure of Close Personal Relationships: - If an intimate close personal relationship develops between the G5 employee and the staff member or any household member, the staff member must immediately disclose the relationship to the Fund’s Ethics Office and obtain advice regarding impact on the bona fide nature of employment and fair treatment. ### Code Supremacy and Consequences - The Code may be revised and amended from time to time; staff members are required to comply with the Code at all times. - Rights and obligations of the staff member and the G5 employee must be consistent with the Code, notwithstanding any contrary contract provision. - Failure to adhere to the Code may be grounds for disciplinary action, up to and including termination of employment. *Source: Provisions of the Fund’s Code governing the Contract of Employment for G5 employees (Section 2.2).* ### 2.11 Certification ### 2.11 Certification ### Certification statement - The undersigned staff member of the International Monetary Fund certifies that he or she has read the Code of Conduct for the Employment of G5 Employees and will act in accordance with the obligations set forth therein. - Name (please print): _________________________________________ - Signature: _________________________ Date:___________________ ### Section 1: Purpose and Scope - 1.1 General - Purpose: set out the policies and procedures adopted by the Fund with respect to investigations of alleged misconduct and the imposition of disciplinary measures if misconduct is substantiated. - Includes: basic rights, duties and obligations of staff in the investigative and disciplinary process. ### Section 2: Definition of Misconduct - 2.1 Definition - Misconduct consists of professional or personal actions or behavior that are contrary to or inconsistent with the standards of conduct set out in "Chapter 11.01: Standards of Conduct", Sections 2-12. - The Code of Conduct issued by the Managing Director provides guidance on areas of staff conduct and ethical behavior addressed in the Staff Handbook and the Fund's Rules and Regulations; violations may provide the basis for disciplinary actions. ### Section 3: Authority and Procedure for Initiating Investigations into Alleged Misconduct - 3.1 Authority of the Managing Director and Director of HRD - Managing Director may initiate investigations for staff at Grades B1-B5. - Director of HRD may initiate investigations for all other staff members. - 3.2 Authority of Department Heads - Department Heads may initiate investigations when: - i. matters referred by OIA warrant further investigation; or - ii. alleged misconduct in their department would not warrant a sanction that exceeds a written reprimand. - 3.3 Referral by Department Heads - Department Heads may refer any case to the Director of HRD or to the Managing Director and must do so if the misconduct would warrant a sanction beyond a written reprimand. - 3.4 Procedure for Initiating Investigations - Investigations initiated through written referral to the Fund’s Internal Investigator, to OIA, to another Fund official or to an outside investigating officer. - Referral must set out nature of allegations and scope of investigation. - Investigations initiated by a Department Head per paragraph 3.2 may only be referred to and conducted by another official in the same department. - Material change in scope of investigation must be authorized by initiating official. - 3.5 Basis for Investigation - Preliminary inquiry normally conducted before initiating an investigation to establish whether sufficient credible information exists to warrant an investigation. ### Section 4: Preliminary Inquiries - 4.1 Purpose - Solely to determine whether a matter warrants further investigation; should be discreet, expeditious, and limited to this purpose. - 4.2 Authority to Initiate - Managing Director or Director of HRD may request the Internal Investigator to conduct a preliminary inquiry. - Internal Investigator may initiate inquiries on own initiative, upon receiving information directly or via the Integrity Hotline (Annex 11.01.7). - Information sources include Fund staff, contractual employees, vendor personnel, and external parties. - 4.3 Decision following a Preliminary Inquiry - Director of HRD or Managing Director shall determine whether an investigation is warranted, whether the matter can be closed, or what other action to take. - For inquiries initiated by the Internal Investigator, the Internal Investigator may close the matter or seek authorization from the Managing Director or Director of HRD to conduct an investigation. ### Section 5: Investigations - 5.1 Purpose - Establish facts and circumstances concerning alleged misconduct to determine whether misconduct occurred and appropriate disciplinary action. - 5.2 Conduct of Investigations - Normally conducted by the Internal Investigator, except for cases initiated by a Department Head under paragraph 3.2 or where another official or external investigator is assigned. - Investigating officer shall gather and review evidence and interview witnesses or others able to provide relevant information. - 5.3 Confidentiality - Investigations conducted discreetly with due regard for respondent’s privacy. - Persons interviewed and others assisting are under a duty of confidentiality and shall not disclose interview contents or nature of participation unless authorized by the investigating officer. - Investigating officer shall explain extent to which divulging information to others may be necessary. - 5.4 Opportunity to Respond - Investigating officer shall interview the respondent, give reasonable opportunity to explain position and present evidence, including names of corroborating witnesses, subject to duty not to interfere with the investigation. - Before interview, respondent shall be informed in writing that an investigation has started, nature of allegations, potential issues and possible violations. - Exceptions to advance notification limited to circumstances where notification would seriously interfere with the investigation or pose danger. - 5.5 Right to be Accompanied - Respondent may be assisted by and accompanied to interviews by an advisor of choice, including an attorney, from inside or outside the Fund. - Footnote: Members of LEG and HRD must obtain permission from the General Counsel and Director of HRD, respectively, before assisting an employee under this provision. - 5.6 Duty to Cooperate and Access to Information - i. Investigating officer shall have direct access to all staff members, contractual employees, vendor personnel and all records relevant to the investigation. Footnote: The Ombudsperson may decline to provide information to the investigating officer due to duty to preserve confidentiality. All Fund personnel have a duty to cooperate and provide requested information in a timely manner. - ii. If respondent refuses to respond or provide information, investigating officer may draw an adverse inference regarding factual content; noncooperation may be grounds for a finding of insubordination and disciplinary measures. - iii. The Mediator, Ombudsperson and Peers for Respectable Workplace must not share information learned in confidential meetings relevant to the investigation unless authorized by the employee or unless they believe there is risk of imminent harm. - 5.7 Duty Not to Interfere - Duty not to interfere with conduct of investigations; interference may constitute misconduct and basis for disciplinary measures. Examples include refusal to cooperate, knowingly false statements, reprisals against complainant or witness, and other conduct that materially interferes. - 5.8 Requests for Information - Investigating officer shall apply relevance standards to nature and extent of information requested and reasonableness regarding time frame for responses. - 5.9 Report of Investigation - Upon completion, investigating officer shall prepare and submit a written Report of Investigation to the official who initiated the investigation. - Report must be balanced and reflect totality of information gathered and contain: - summary of the allegations of misconduct; - the applicable rules and regulations or standard of conduct; - a description of the available evidence; - conclusions about whether allegations have been substantiated by a preponderance of the evidence, or whether the evidence exonerates the respondent or is insufficient to make a finding. - 5.9.1 Scope of Report - Comments in the Report should be confined to issues pertaining to the alleged misconduct and should not draw conclusions on other matters, such as quality of management practices; general observations not directly involving the specific matter should be presented separately. ### Section 5.10: Review Process for Request for Information during an Investigation - If disagreement arises between a staff member and the investigating officer over a request for information, the staff member may refer the matter to the Director of HRD for determination if the request is unreasonable because: - i. the information requested is irrelevant to the subject matter of the investigation, or - ii. the time allowed for response or production is insufficient. - The request for information shall be suspended pending the review, which should be dealt with expeditiously. - Determination of the Director of HRD is final and not subject to review under Chapter 11.03: Dispute Resolution, except as part of a subsequent challenge to the final disciplinary decision under applicable channels of review. ### Section 6: Authority to Impose Disciplinary Measures - 6.1 Authority - Director of HRD has authority to impose any disciplinary measures specified in Section 8, except: - For staff members in Grades B1-B5, imposition of measures (iv) through (xi) in paragraph 8.1 shall be decided by the Managing Director. - In cases of violations of "Chapter 11.01: Standards of Conduct", Sections 8 and 9, the Director of COM may recommend appropriate disciplinary action. - 6.2 Authority of Department Heads - Department Heads have authority to impose disciplinary sanctions up to a formal, written reprimand on staff members in their department. - 6.2.1 Advice of the Director of HRD - Department Heads uncertain about authority should seek advice of the Director of HRD. - 6.2.2 Consultation with HRD - Before deciding on disciplinary action, Department Head shall consult with Director of HRD to ensure consistent treatment among staff. - 6.3 Delegation of Authority - Managing Director, Director of HRD or Department Head may delegate authority under this Chapter to another Fund official graded at B1 or above whose rank is at least one grade higher than the staff member under investigation. - Authority of the Director of HRD to impose measures (iv) through (xi) in paragraph 8.1 may be delegated only to a Deputy Director of HRD. ### Section 7: Decisions on Disciplinary Action - 7.1 Responsible Official - “Responsible official” means the Managing Director, Director of HRD, Department Head or other Fund official to whom authority has been delegated. - 7.2 Transmission of the Report and Response - Before deciding on disciplinary action, responsible official shall give respondent a copy of the Report of Investigation for review and comments. - Respondents shall be given reasonable opportunity to present comments; in any personal appearance, respondents may be accompanied by an advisor, including an attorney, from inside or outside the Fund. - Footnote: Members of LEG and HRD must obtain permission from the General Counsel and the Director of HRD, respectively, before assisting an employee under this provision. - 7.3 Further Inquiry - If respondent’s response raises unresolved issues, the responsible official may request further inquiry before deciding. - 7.4 Decision - Based on the Report, the staff member’s response, and any additional information, the responsible official shall determine whether allegations are well founded and whether conduct constitutes misconduct. - 7.4.1 Finding of Misconduct - If misconduct is found, responsible official shall notify staff member in writing of conclusions, reasons, and disciplinary measure(s) to be imposed. - Director of HRD or Managing Director shall determine amount and/or duration of disciplinary measures and conditions for discontinuance where applicable. - 7.4.2 No Finding of Misconduct - If no misconduct, responsible official shall inform the staff member that the matter is closed. - 7.5 Interim Measures - Pending completion of investigation and decision, if responsible official finds reasonable cause: - i. staff member may be relieved of specific duties or temporarily reassigned by the Department Head or Director of HRD; - ii. staff member may be placed on administrative leave with pay by the Director of HRD in accordance with "Administrative Leave with Pay"; for staff in Grades B1-B5 subject to Rule N-12, such measures shall be imposed by the Managing Director; - iii. payment of benefits or allowances may be suspended or postponed. - 7.6 Opportunity to be Heard on Interim Measures - Before imposing interim measures, responsible official shall give staff member reasonable opportunity to be heard on the facts and allegations, unless exceptional circumstances require otherwise. - 7.7 Disciplinary Measures During Period of Review - If staff member requests review of a decision under Chapter 11.03: Dispute Resolution, disciplinary measures remain in force during the review period unless Director of HRD or Managing Director decides suspension of measures is warranted by exceptional circumstances. ### Section 8: Disciplinary Measures - 8.1 Types of Measures (may take one or more forms) - i. written warning; - ii. formal, written, reprimand; - iii. forfeiture of specific benefits or allowances; - iv. reassignment; - v. ineligibility for specific salary increases; - vi. ineligibility for specific promotion(s); - vii. suspension of salary; - viii. reduction in salary; - ix. suspension with or without pay; - x. demotion; and - xi. termination of employment. *Staff Handbook, Ch. 11.02 (Misconduct and Disciplinary Procedures).* ### 8.2 Proportionality ### 8.2 Proportionality ### Proportionality principle for disciplinary measures - The severity of disciplinary measures shall be commensurate with the seriousness of the misconduct. - In determining seriousness and deciding measures, the nature of the misconduct and the circumstances in which it occurred shall be taken into account. - In appropriate cases, the disciplinary measure imposed may vary from the list provided in paragraph 8.1. - Particular factors to be taken into account: - i. the extent to which the misconduct adversely reflects upon the reputation or adversely affects the interests of the Fund; - ii. the extent to which the misconduct involves intentional actions or negligence; - iii. whether the misconduct involves repeated actions or behavior; and - iv. the prior conduct of the staff member [Footnote 1 – "Staff member" means a full-time or part-time employee of the Fund who has been appointed to either a regular or term position and whose letter of appointment indicates that he or she is a "staff member of the Fund."]. ### Confidentiality and records retention (Section 9) - 9.1 Confidentiality: - Information regarding cases where these procedures apply shall be provided only to staff members who have a need to be informed. - Staff shall treat such information in a strictly confidential manner, consistent with the Personal Information Privacy Guidelines. - 9.2 Notification by or to Departments: - Department Heads shall notify HRD of any written warnings and formal written reprimands issued by them to ensure central maintenance of disciplinary records. - The Director of HRD shall notify the relevant Department Head of any disciplinary actions imposed on staff members of that department. - Subject to paragraph 9.3, a written record of any disciplinary action imposed on a staff member [Footnote 1 – "Staff member" means a full-time or part-time employee of the Fund who has been appointed to either a regular or term position and whose letter of appointment indicates that he or she is a "staff member of the Fund."] shall be retained in the staff member’s personnel file. - 9.3 Records: - Records of disciplinary measures shall be purged from a staff member’s personnel file and destroyed after a three-year period, provided that there has been no recurrence of the misconduct during that period of time. - The Fund may retain information about the misconduct and the sanction imposed, including the Report of Investigation, in the confidential files maintained by the Director of HRD and the Ethics Office, provided access is strictly limited on a need-to-know basis. ### Administration (Section 10) - 10.1 Administration: - The Director of HRD shall be responsible for the administration of this Chapter. ### Consideration of the issues by the Administrative Tribunal - Principal questions for decision by the Tribunal (paragraph 69): - (a) Shall the Tribunal sustain the Fund’s misconduct decision against Applicant? - (b) Does Applicant have recourse to the Tribunal in relation to her challenge to the decision barring her utilization of the G-5 visa program and, if so, has she prevailed on that challenge? - The Tribunal will also consider Respondent’s request for “reasonable compensation” from Applicant, pursuant to Article XV of the Statute, for the cost of responding to her second request for provisional relief. - Standard of review applicable to misconduct decisions (paragraphs 70–73): - Misconduct findings are a special category of individual decision; review of “quasi-judicial” decision-making processes, including misconduct decisions, may be subject to heightened scrutiny. - The Tribunal has held that review in disciplinary matters “is not limited to determining whether there has been an abuse of discretion but encompasses a fuller examination of the issues and circumstances.” - In examining misconduct challenges tribunals examine: - (i) the existence of the facts; - (ii) whether they legally amount to misconduct; - (iii) whether the sanction imposed is provided for in the law of the [organization]; - (iv) whether the sanction is not significantly disproportionate to the offence; and - (v) whether the requirements of due process were observed. - The Tribunal identified three principal questions when an applicant challenges a misconduct decision (paragraph 72): - Did Applicant engage in misconduct in contravention of the Fund’s internal law? - Was Applicant accorded due process in the misconduct proceedings? - If Applicant was properly found to have engaged in misconduct, was the penalty imposed proportionate to the offence and determined in accordance with the applicable Fund regulations? - The Tribunal may afford a measure of deference to the original decision maker depending on the nature of the decision, the grounds on which it is contested, and the decision maker’s authority or expertise (paragraph 73). ### Legal framework governing alleged misconduct related to G-5 employment - Scope of applicable Fund internal law (paragraphs 74–76): - The Fund’s internal law governing staff conduct in relation to G-5 employment relationships comprises a separate section of the Staff Handbook (Annex 11.01.8) with its own procedures and penalties. - Staff members subject to disciplinary action for alleged violation of Annex 11.01.8 also remain subject to Staff Handbook, Ch. 11.02 (Misconduct and Disciplinary Procedures). - The U.S. Government issues G-5 visas; the Fund’s Staff Handbook requires staff to comply with legal requirements mandated by the host country. - The aim of Annex 11.01.8: “ensure the fair treatment of G5 employees, consistent with applicable federal and state laws and the staff rules of the Fund.” (Staff Handbook, Annex 11.01.8, Section 1.1.) - Regulation of the G-4/G-5 employment relationship (paragraphs 76–79): - The G-4/G-5 relationship is highly regulated by the Fund to maintain compliance with host-country immigration laws designed to protect G-5 household employees against potentially abusive employment relationships with G-4 employers. - Key provisions include requirements for a written contract, minimum wage, and a complaints procedure. - Fund’s Code of Conduct for the Employment of G5 Employees, Annex 11.01.8, Section 2.11 requires G-4 staff member employers to certify they have “read this Code of Conduct for the Employment of G5 Employees and will act in accordance with [its] obligations.” - G-4 staff who choose to employ G-5 household employees are required to complete training sessions to familiarize themselves with legal requirements. - The host country retains ultimate control over G-5 visa issuance; the Fund emphasizes that misuse of the G-5 Program risks the Fund’s overall use of the Program and its reputation. - The Fund submitted record documentation showing many provisions reflect host-country law, including contract provisions cited from 9 FAM 402.3-9 regarding employer payment of travel costs and termination notice/pay provisions. ### Tribunal’s approach to regulatory challenges and reasonableness of standards - Regulatory challenge by Applicant (paragraphs 80–81): - Applicant contends rules governing her conduct are overbroad and grant the Fund “unlimited discretion,” depriving Applicant of “rights to predictability, fairness and meaningful opportunities to respond to accusations.” - In finding Applicant failed to afford the complainant G-5 employee “fair and reasonable treatment” and that her conduct “reflected adversely on the Fund,” the HRD Director cited Annex 11.01.8, Section 2.8 (Fair Treatment of G5 Employee). - Text of Annex 11.01.8, Section 2.8 (paragraph 81): - “The staff member shall treat the G5 employee fairly and reasonably. In no event shall the staff member abuse the privilege of employing a G5 employee or engage in any conduct toward the G5 employee that would reflect adversely on the Fund. Nor shall the staff member, in connection with an audit or investigation of a complaint, retaliate against the G5 employee for any good faith statement or action by or on behalf of the G5 employee. Violations of this provision, or of any other provision of this Code, may result in loss of the privilege of employing a G5 employee and other appropriate disciplinary action against the staff member, up to and including termination of employment.” - Relationship to general standards of conduct (paragraphs 82–84): - Staff Handbook, Ch. 11.01, Section 12.1 requires staff to refrain from unlawful acts or other actions in their personal capacities that “may reflect adversely on the integrity or reputation of the Fund and/or its staff,” and gives examples including domestic violence or abuse, failure to comply with legal obligations with respect to a G5 domestic employee, or failure to comply with a lawful order from a court or other governmental authority. - The Tribunal notes these provisions reflect the Fund’s interest in conforming with host-country norms and the sensitive relationships between the organization and host/member governments. - Tribunal’s assessment of vagueness/overbreadth challenge (paragraphs 85–86): - The Tribunal recognizes its deference is at its height when reviewing regulatory or policy decisions. - Although provisions like “fairly and reasonably” and refraining from actions that “may reflect adversely on the integrity or reputation of the Fund” are open-ended, the Tribunal considers they are not so vague or overbroad as to be unfair. - The Fund law provides illustrative examples and detailed rules (e.g., Annex 11.01.8, Section 2.8; Ch. 11.01, Section 12.1) that the Tribunal considers adequate guidance to staff regarding the content of obligations. - Consequently, the Tribunal rejects Applicant’s contention that the standards are “abusively subjective” so as to violate her right to due process in disciplinary proceedings. *Source: IMF — j2021-1, sections 8.2, 9, 10 and CONSIDERATION OF THE ISSUES (paragraphs 69–86).* ### 87. The Tribunal accordingly denies Applicant’s challenge to the “regulatory decision” and ### 87. The Tribunal accordingly denies Applicant’s challenge to the “regulatory decision” and ### Standard for determining misconduct - Misconduct determination ordinarily comprises: (i) findings as to the existence of pertinent facts; and (ii) the interpretation of the governing law to decide whether those facts constitute misconduct. - This two-step approach is codified in Staff Handbook, Ch. 11.02, Section 7.4, which states that the HRD Director “shall determine whether the allegations are well founded and whether the staff member’s conduct constitutes misconduct.” - Applicant bypassed the Fund’s Grievance Committee and proceeded directly to the Tribunal pursuant to Article V, Section 4, of the Statute. - Applicant did not seek to invoke the Tribunal’s fact-finding authority to hold witness hearings; accordingly, the Tribunal is limited to the factual record assembled by the Fund’s OII and Applicant’s submissions to OII and the HRD Director. ### Findings on whether Applicant failed to afford “fair and reasonable treatment” to a G-5 employee - The Tribunal applies a heightened level of scrutiny while recognizing the “expertise that has been vested in the original decision maker.” - The norm of “fair and reasonable treatment” is given further content by the detailed provisions of the Code of Conduct for the Employment of G5 Employees. - The HRD Director based the decision that Applicant failed to afford “fair and reasonable treatment” and engaged in conduct that “reflected adversely on the Fund” on factual findings including: - (i) Applicant “ended [the complainant G-5 employee]’s employment” and did so for reasons other than “any conduct on [the complainant G-5 employee]’s part,” while failing to provide at least one month’s notice or make payment in lieu, as required by Section 14 of the G-5 Contract; - (ii) Applicant “directed [the complainant G-5 employee] to write and sign a letter indicating that she had resigned voluntarily”; - (iii) rather than waiting until the next day to seek guidance from the Fund regarding legal rights and responsibilities, Applicant called a local police officer to the home “in [the complainant G-5 employee]’s presence and in a way which was upsetting to her”; - (iv) Applicant’s spouse left the complainant G-5 employee at the airport later that evening, knowing that her flight was not to depart until the evening of the following day; - (v) Applicant failed to pay wages due for work performed by the complainant G-5 employee during the period of her employment. - The Tribunal concludes it is not necessary to resolve whether the complainant resigned or was terminated for cause because the case may be resolved on indisputable conduct by Applicant. - The Tribunal sustains the Fund’s decision that Applicant engaged in misconduct in contravention of the Fund’s internal law and that the Fund may take a holistic approach to judging failure to afford “fair and reasonable treatment.” - The Tribunal identifies the pertinent facts supporting the misconduct finding: - (a) Applicant called U.S. Immigration and Customs Enforcement (ICE) and then summoned the local police rather than waiting for Fund assistance, creating an encounter likely to be intimidating and frightening to the recently arrived complainant G-5 employee; - (b) Applicant’s spouse left the complainant at the airport knowing her return flight was not for “approximately another twenty-four hours,” evidencing a lack of care in ensuring safe return; - (c) although Applicant ultimately purchased the complainant’s return air ticket just prior to the airport drop-off, (i) the termination letter the complainant signed stated she would be responsible for buying the ticket, (ii) Applicant queried the police officer about whether Applicant would have to pay for the ticket, and (iii) Applicant’s spouse told the complainant in a video that Applicant and her spouse had purchased the airplane ticket as “good Samaritans.” - The Tribunal notes the employer’s responsibility: - A G-4 employer is responsible for the G-5 employee’s transportation costs to and from the U.S. irrespective of the reason for the end of employment; - This requirement is codified in the staff rules, is a feature of U.S. law, and was reiterated to Applicant in correspondence with the Fund’s immigration law firm and during orientation (G-4/G-5 Orientation Version 3.2): “The G-4 employer must pay G-5 transportation costs to the U.S. at the start of employment, and from the U.S. following end of employment, regardless of why employment ends.” - The Tribunal finds Applicant’s conduct showed insensitivity to the complainant’s needs and a disregard for adherence to the Fund’s governing law, and that motive or good faith does not absolve responsibility for misconduct. - Applicant had certified she had “read this Code of Conduct for the Employment of G5 Employees and will act in accordance with [its] obligations.” (Annex 11.01.8, Section 2.11.) - Conclusion: Applicant failed to afford “fair and reasonable treatment” to a G-5 employee and engaged in conduct that “reflected adversely on the Fund,” in violation of the Code of Conduct for the Employment of G5 Employees. ### Due process in the disciplinary proceedings - Applicant’s asserted due process complaints included: vague and subjective standards (rejected by the Tribunal), prejudicial communications with the State Department (addressed elsewhere), lack of impartiality of OII, and the HRD Director’s formulation of new charges. - The Tribunal finds Applicant had multiple opportunities to present her account: - OII issued a Notice of Investigation advising Applicant she could explain her position and present evidence orally and in writing, and be assisted by counsel; excerpts of applicable rules were appended. - Applicant provided a written response through counsel, was interviewed by OII in the presence of counsel, and submitted a supplementary written statement. - The HRD Director provided Applicant with the ROI and attachments; Applicant filed a written Response and met in person with the HRD Director accompanied by counsel. - Applicant could have requested an evidentiary hearing before the Fund’s Grievance Committee or asked the Tribunal to hold witness hearings but did not do so. - The Tribunal rejects Applicant’s contention that differing factual emphases between OII and the HRD Director deprived her of the opportunity to respond, finding the HRD Director’s grounds emerged from the same constellation of facts and evidence in the ROI and that Applicant was represented by counsel throughout. - The Tribunal notes Applicant’s comment that the “preponderance of the evidence” standard applicable to OII (Staff Handbook, Ch. 11.02, Section 5.9) is an “overly light burden on the Fund,” but Applicant does not directly challenge that regulatory decision; the Tribunal does not address the burden of proof question further here. - Conclusion: The Tribunal finds no ground to conclude the Fund failed to afford Applicant the process due in the disciplinary proceedings; the process followed the Fund’s law governing misconduct cases and was consistent with general principles of notice and fair hearing. ### Proportionality and compliance of disciplinary measure - The HRD Director imposed a “formal written reprimand” to remain in Applicant’s personnel file for three years (Staff Handbook, Ch. 11.02, Section 8.1(ii)); a “formal, written, reprimand” is the second least severe disciplinary measure available. - Staff Handbook, Ch. 11.02, Section 8.1 prescribes eleven types of disciplinary measures ranging from a written warning to termination of employment. - Staff Handbook, Annex 11.01.8, Section 2.8 states: “Violations of this provision, or of any other provision of this Code [of Conduct for the Employment of G5 Employees], may result in loss of the privilege of employing a G5 employee and other appropriate disciplinary action against the staff member, up to and including termination of employment.” - The Tribunal addresses whether the three-year formal, written reprimand was proportionate and determined in accordance with applicable Fund regulations. *Judgment of the Tribunal.* ### 111. The Tribunal notes that the HRD Director’s Decision included the statement that, but f or ### j2021-1 - 111. The Tribunal notes that the HRD Director’s Decision included the statement that, but f or ### Tribunal’s scope of review and proportionality of disciplinary sanction - The Tribunal limited its review of proportionality to whether the HRD Director’s decision that Applicant would receive a formal written reprimand to remain in her personnel file for three years is proportionate to the established offence. - The Tribunal applied the principle that a disciplinary measure shall be proportionate to the severity of the offence, as reflected in Fund internal law (Staff Handbook, Ch. 11.02, Section 8.2) and the Tribunal’s standard of review. - The HRD Director concluded Applicant’s actions “adversely affected the interests of the Fund, including in relation to the Fund’s relationship with the G-5 program administrators at the Department of State,” and found several instances of unfair and unreasonable treatment of the G-5 employee occurring on the same day. - The HRD Director also took into account mitigating circumstances: Applicant “faced a difficult situation as an employer in unusual and stressful circumstances” and there was “no evidence in the record suggesting any unfair treatment of [the then current] G-5 employee.” - Finding: The Tribunal considered the HRD Director’s approach and considerations appropriate and found no ground to overturn the reasoned decision to impose a three-year formal, written reprimand. ### Relevant legal standard and criteria for sanctions - Staff Handbook, Ch. 11.02, Section 8.2 requires that “the severity of the disciplinary measures imposed shall be commensurate with the seriousness of the misconduct.” - The Handbook identifies criteria for determining disciplinary sanction: - (i) the extent to which the misconduct adversely reflects upon the reputation or adversely affects the interests of the Fund; - (ii) the extent to which the misconduct involves intentional actions or negligence; - (iii) whether the misconduct involves repeated actions or behavior; - (iv) the prior conduct of the staff member. ### Tribunal conclusion on misconduct decision - The Tribunal concluded that Applicant’s challenge to the misconduct decision must fail. ### Jurisdictional question: was the G-5 bar an administrative act of the Fund? - The Tribunal’s subject matter jurisdiction is limited to challenges to the “legality of an administrative act adversely affecting” an applicant (Statute, Article II (1)(a)); “administrative act” is “any individual or regulatory decision taken in the administration of the staff of the Fund” (Statute, Article II (2)(a)). - The HRD Director’s June 11, 2018 Decision communicated: - that the U.S. Department of State had “lost confidence in your ability to maintain a proper relationship with a G-5 domestic worker and that this will impact your ability to obtain a G-5 visa in future”; - HRD explained the Fund’s investigation found no evidence suggesting unfair treatment of the current G-5 employee, but the Department’s practice is not to authorize a G-5 visa in future where there is any evidence of non-compliance with G-5 program requirements; - “Due to the position communicated to us by the State Department, I am obliged to make the following decisions in the interests of the Fund: i. I must direct you to end [the then current G-5 employee]’s employment in your household no later than September 10, 2018. ii. The Fund will not be able to support applications made by you for a G-5 visa in future. It is important to understand that the two decisions immediately above are administrative, and not disciplinary, in nature.” - HRD initially “decided to impose, as a second disciplinary measure . . . forfeiture of Fund support for any new G-5 employee for four years,” but later received information from the State Department which “requires administrative action by the Fund that makes this second disciplinary measure redundant.” - Tribunal finding: The HRD Director’s decision to forgo the Fund’s planned disciplinary 4-year bar in favor of deferring to the State Department’s more stringent approach was a “decision taken in the administration of the staff of the Fund” under Article II because it affected Applicant’s terms and conditions of employment by depriving her of the Fund’s sponsorship for G-5 household employees. ### Abuse of discretion analysis regarding deference to the State Department - The Tribunal examined whether the Fund abused its discretion in deferring to the State Department and thereby instructing Applicant to end the then current G-5 employee’s employment and informing her the Fund would not support future G-5 applications. - Record evidence: - The Fund did not produce a written State Department decision authorizing the Fund’s action; it relies on oral exchanges between a State Department representative and a senior HRD official. - The record documents that the State Department, including in a Diplomatic Note of the U.S. Secretary of State citing the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, reminded the Fund that issuance of G-5 visas is a privilege the U.S. Government may withhold. - The HRD Director had initially decided on a 4-year Fund suspension of sponsorship; the State Department communicated a different approach, and HRD elected not to pursue its original disciplinary route. - The Fund took steps on Applicant’s behalf: HRD explained to the State Department the Fund’s investigation found no evidence suggesting unfair treatment of the then current G-5 employee; senior HRD official further pressed the State Department in writing and by email, but the State Department “consistently withdrawn G-5 benefits where there have been even minor infractions” and indicated its view was final. - Tribunal reasoning: - It is not entirely clear why the Fund considered itself “obliged” to abandon its internal-law-based 4-year disciplinary bar when the issuance of a G-5 visa requires first action by the international organization and then by the U.S. Government; the State Department retains ultimate authority to issue or withhold G-5 visas and could enforce a longer or indefinite bar. - Given the sensitive relationship between the international organization and the host government, the Fund’s findings that Applicant had failed to afford “fair and reasonable treatment” and engaged in conduct that “reflected adversely on the Fund,” and the Fund’s attempts (albeit unsuccessful) to persuade the State Department, the Tribunal cannot conclude the Fund abused its discretion in following the views expressed directly by the State Department in this case. - Conclusion: The Tribunal found no abuse of discretion by the Fund in deferring to the State Department’s communications and taking the administrative actions described. *Administrative Tribunal for the International Monetary Fund* ### 132. The Tribunal accordingly does not find in the circumstances of the case that the Fund has ### j2021-1 - 132. The Tribunal accordingly does not find in the circumstances of the case that the Fund has ### Tribunal findings on G-5 visa decision - The Tribunal does not find that the Fund failed in any duty to act on behalf of a G-4 staff member when the U.S. Government decided it was not willing to grant Applicant further access to the G-5 visa program for the employment of household employees. - The Applicant challenged the HRD Director’s decision to defer to the State Department’s determination barring Applicant's access to the G-5 visa program as an “administrative act” under Article II of the Statute. - The Tribunal concluded the Applicant did not show that the HRD Director abused her discretion when, in deference to the views of the U.S. Government, she: - directed Applicant to end the employment of the then current G-5 employee; and - decided that the Fund would not support applications by Applicant for a G-5 visa in future. ### Respondent’s request for “reasonable compensation” under Article XV - Background and procedural posture: - The Tribunal deferred the Article XV question in Ms. “PP”, Order No. 2020-1, para. 20, and addressed it in the Judgment. - The Fund argues Applicant’s second request for provisional relief was “manifestly without foundation” under Article XV and renewed and quantified its Article XV request in its Rejoinder. - Applicant opposes the Fund’s request, arguing the Fund failed to meet the stringent standard set by Article XV. - Text of Article XV as provided: 1. The Tribunal may order that reasonable compensation be made by the applicant to the Fund for all or part of the cost of defending the case, if it finds that: a. the application was manifestly without foundation either in fact or under existing law, unless the applicant demonstrates that the application was based on a good faith argument for an extension, modification, or reversal of existing law; or b. the applicant intended to delay the resolution of the case or to harass the Fund or any of its officers or employees. 2. The amount awarded by the Tribunal shall be collected by way of deductions from payments owed by the Fund to the applicant or otherwise, as determined by the Managing Director, who may, in particular cases, waive the claim of the Fund against the applicant. - Commentary emphasis: - Article XV provides a mechanism to assess reasonable costs against applicants who bring cases the Tribunal determines are “patently without foundation.” - The provision is “directed at applications that amount to an abuse of the review process,” intended to “serve as a deterrent to the pursuit of cases that are manifestly without factual basis or legal merit.” - Precedent and interpretation: - The Fund previously invoked Article XV in Mr. “V”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 1999-2 (August 13, 1999), paras. 132-139; the Tribunal there rejected an Article XV request. - The Tribunal in Mr. “V” emphasized the high bar for Article XV and cautioned that penalizing access to the Tribunal will be rare. - Tribunal’s assessment in this case: - The Tribunal will exercise Article XV authority sparingly, consistent with the Statute’s purposes and commitment to access to justice. - Given the novel circumstances of Applicant’s second request for provisional relief, the Tribunal cannot say the request was “manifestly without foundation.” - Accordingly, Respondent’s Article XV request is denied. ### Conclusions of the Tribunal and decision - Tribunal conclusions (paras. 139–142): - First: The Tribunal sustains the Fund’s decision that Applicant engaged in misconduct in contravention of the Fund’s internal law. The decision that Applicant failed to afford “fair and reasonable treatment” to a G-5 employee and engaged in conduct that “reflected adversely on the Fund” in violation of the Fund’s Code of Conduct for the Employment of G5 Employees is supported by the evidence. Applicant did not show the Fund failed to afford due process in disciplinary proceedings or imposed a disproportionate sanction. Applicant’s challenge to the fairness of the rule governing her misconduct is without merit. - Second: The Fund did not abuse its discretion when the HRD Director deferred to communications from the U.S. State Department regarding Applicant’s utilization of the G-5 visa program. - Third: The Tribunal denies the Fund’s request, pursuant to Article XV of the Statute, to recover “reasonable compensation” from Applicant for the cost of responding to her second request for provisional relief. - Formal decision (unanimous): 1. The Application of Ms. “PP” is denied. 2. Respondent’s request for “reasonable compensation” from Ms. “PP”, pursuant to Article XV of the Statute, for the cost of responding to her second request for provisional relief is denied. --- _Source: https://www.imf.org/-/media/files/imfat/j2021-1.pdf_