## JUDGMENT No. 2021-2 (Mr. “RR” v. International Monetary Fund) ## Source details **Canonical URL:** [JUDGMENT No. 2021-2 (Mr. “RR” v. International Monetary Fund)](https://www.imf.org/-/media/files/imfat/j2021-2.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2021-2.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2021-2.pdf.json) --- ### Tribunal composition, session, and parties - Tribunal composition: - Judge Catherine M. O’Regan, President; Judges Andrés Rigo Sureda and Deborah Thomas-Felix. - Session and procedural modalities: - Tribunal sat on May 4 and 5, 2021; oral arguments held by videoconference pursuant to amended Article XI of the Statute. - Applicant’s request for anonymity granted on March 12, 2021 under Rule XXII. - Parties and representation: - Applicant: Mr. “RR”, former fixed-term staff member; represented by Mr. Peter C. Hansen and Mr. J. Michael King. - Respondent: International Monetary Fund; represented by Ms. Diana Benoit (written pleadings) and Ms. Juliet Johnson (oral proceedings). ### Scope of dispute and relief sought - Principal contested decisions: - Decision not to convert Applicant’s fixed-term appointment (Grade A15) to an open-ended appointment (DMD/CAO decision in December 2017). - Decision not to select Applicant for a subsequent Grade A13/A14 vacancy to which he applied after separation. - Applicant’s main contentions (summarized): - Non-conversion arbitrary and capricious; lack of timely warning and opportunity to remedy performance shortcomings; improper HRD involvement in assessments and selection; absence of written reasons and late notice. - Non-selection improperly influenced by non-conversion decision and HRD officials. - Remedies sought included rescission of decisions, reinstatement converted to open-ended status with back pay and benefits or 5 years’ compensation, additional 3 years’ salary for moral/intangible damages, and attorneys’ fees and costs. - Respondent’s main position (summarized): - Management properly exercised discretion; non-conversion based on legitimate criteria including lack of “career potential” and business need; HRD acted appropriately; delay post-30-month mark intended to enhance chances; non-selection properly exercised. ### Procedural timeline (key dates) - March 2015: Applicant hired on three-year fixed-term appointment at Grade A15. - October 20, 2017: Department submission recommending conversion to RC. - November 2017: RC endorsement of conversion (IAF dated November 15, 2017; RC endorsement transmitted November 29, 2017). - December 2017: DMD/CAO declined conversion. - March 2018: Fixed-term appointment concluded; Applicant separated. - May 18, 2018: Applicant filed Grievance (later expanded to include non-selection). - March 18, 2019: Grievance Committee Report: non-conversion challenge unsuccessful; non-selection challenge successful; recommended reinstatement to lower-graded term appointment. - July 19, 2019: Acting Managing Director accepted Committee’s merits but rejected reinstatement; awarded 8 months’ salary and reimbursed 50 percent of legal fees for Grievance Committee. - October 21, 2019: Applicant filed Application with the Administrative Tribunal. - March 12, 2021: Tribunal granted anonymity and ordered oral proceedings. - May 4–5, 2021: Oral proceedings by videoconference. - December 24, 2021: Tribunal judgment rendered. ### Relevant internal rules and criteria - GAO No. 3, Rev. 7 (May 1, 2003), Section 3 and Guidelines for Conversion of Fixed-Term Appointments (2006): - Conversion criteria: (1) meets performance requirements; (2) demonstrates potential for a career at the Fund; (3) conversion consistent with departmental and institutional staffing needs. - Career employment decision occurs at 30 months; conversion effective at end of fixed-term (36 months). - RC endorsement required for Grades A14–B2 conversions; RC assesses and HRD reviews against institutional staffing needs. ### Tribunal legal standard and issues for review - Standard of review for managerial decisions: abuse of discretion (decision arbitrary, capricious, discriminatory, improperly motivated, based on error of law or fact, or in violation of fair and reasonable procedures). - Key legal questions: - (a) Whether Fund abused its discretion in not converting Applicant’s fixed-term appointment. - (b) Whether Fund abused its discretion in not selecting Applicant for the Grade A13/A14 vacancy. - Additional allegation: impermissible retaliation for Respondent’s citation of an anonymously captioned decision of another tribunal. ### Factual findings relevant to conversion decision - Performance monitoring and feedback: - Fixed-term monitoring at six-month intervals culminating in a 30-month decision point. - FY2016 APR (May 1, 2015 – April 30, 2016): rating “Effective”; narrative noted areas for development but Applicant reported feeling “very positive”. - FY2017 APR (May 1, 2016 – April 30, 2017): rating “Effective”; narrative stated performance “partially met the standards and key competencies expected for positions at Grade A15”; Applicant asserts this was the first clear indication of serious concerns. - Applicant informed of perceived shortcomings only in June/July 2017, months before conversion decision. - Department recommendation and RC endorsement: - Department memorandum (October 20, 2017) recommended conversion, noting Applicant “grown into the role well” and “demonstrated the potential for a longer-term career”. - RC due diligence (IAF of November 15, 2017): acknowledged track record not very strong but, on balance, recommended conversion; described case as “a difficult call” with agreement at RC meeting. - DMD/CAO review and reasons: - DMD/CAO reviewed RC packet and issued two memoranda: - December 4, 2017 memorandum: flagged uncertainty whether there would be an ongoing business need in view of candidate’s profile, skills and career experience. - December 13, 2017 memorandum: accepted RC recommendations except for Applicant’s conversion, stating Applicant “has not sufficiently demonstrated his leadership potential in driving innovation and guiding strategic changes.” - DMD/CAO testimony also included annotation that Applicant’s expertise was “easy to find in the market” and indicated multiple, inconsistent rationales. ### Tribunal’s principal findings and analysis - Business need rationale: - Record evidence established a clear business need for the post and that Applicant’s skillset was not “easy to find” (Department memorandum, Office Director 1 and Office Director 2 testimony, immediate advertising of post after non-conversion). - Tribunal concluded any DMD/CAO reliance on absence of business need was a material error of fact and lacked a rational basis. - Notice and opportunity to remedy alleged competency gaps: - Tribunal concluded Applicant was only effectively informed of leadership/Grade A15 competency shortcomings in June 2017, about months before the conversion decision and after more than two years of employment. - Prior performance records did not adequately warn Applicant that conversion was jeopardized. - Tribunal held Fund failed to afford Applicant adequate warning and reasonable opportunity to remedy leadership deficiencies; basing non-conversion on lack of career potential under those circumstances constituted abuse of discretion. - Failure to provide written reasons: - DMD/CAO did not provide Applicant with a written decision or reasons; Tribunal held that absence of a written, reasoned decision in a case with profound employment consequences was a violation of fair and reasonable procedures and an abuse of discretion. - Non-conversion decision overall: - Tribunal identified three major flaws in the DMD/CAO exercise of discretion: (1) no written reasons to Applicant; (2) inconsistent internal reasons and factual error on business need; (3) decision premised on lack of leadership potential without adequate prior warning/opportunity to improve. - Tribunal concluded DMD/CAO’s decision to reject RC recommendation constituted an abuse of discretion. ### Tribunal findings on non-selection for Grade A13/A14 vacancy - Vacancy process facts: - Office Director 2 proposed Grade A13/A14 vacancy; Applicant applied, was shortlisted and interviewed; pre-deliberation panel scores placed Applicant second; selection went to a candidate scoring slightly higher. - Initial vacancy selection recommendation drafts referenced HRD non-support; final recommendation stated non-selection based on recent institutional non-conversion decision asserting insufficient leadership potential. - Tribunal conclusions: - Tribunal found HRD improperly interfered with the selection process by effectively advising that Applicant would not be approved for appointment and that such intercession unfairly deprived Applicant of an equal opportunity to compete. - Tribunal held that the non-conversion decision was invalid and could not properly be invoked to exclude Applicant; non-selection process violated fair and reasonable procedures and constituted an abuse of discretion as applied to Applicant. ### Cross-institutional retaliation allegation - Applicant alleged Respondent’s citation of an anonymously captioned decision of another tribunal in pleadings amounted to “cross-institutional retaliation.” - Tribunal’s treatment: - Determined Applicant’s credibility was not material to the Judgment; gave no evidentiary weight to the anonymous decision and declined to adjudicate whether such material could be considered in other circumstances. ### Remedies and monetary awards (exact terms) - Rescission and reinstatement: - Tribunal rescinded the Fund’s decision not to convert Mr. “RR”’s fixed-term appointment to an open-ended appointment. - Reinstatement was considered unsuitable given seniority and time elapsed; compensation in lieu of reinstatement ordered. - Compensation for non-conversion: - Monetary compensation set at the equivalent of three times Applicant’s last annual salary from the Fund. - Compensation for unfair non-selection process: - Monetary compensation set at the equivalent of four months’ salary calculated on the basis of Applicant’s last annual salary from the Fund. - In addition, Tribunal ordered payment of the difference between: - (i) eight months’ salary at Grade A13 that Applicant has already been paid; and - (ii) eight months’ salary calculated on the basis of Applicant’s last annual salary from the Fund. - Legal fees and costs: - Applicant sought $95,397.86 total legal fees and costs (including $38,745.71 unreimbursed Grievance Committee fees). - Tribunal awarded the full requested amount: $95,397.86 to be paid by the Fund. - Final orders (summary): 1. Rescission of Fund’s non-conversion decision. 2. Fund’s decision not to select Applicant for Grade A13/14 position in his department is sustained as decision (text of final order states sustained but remedies awarded for unfair process). 3. Monetary awards: - a. Compensation equal to three times Applicant’s last annual salary (in lieu of reinstatement). - b. Compensation equal to four months’ salary (based on Applicant’s last annual salary) for unfair non-selection process, plus the difference between eight months’ salary at Grade A13 already paid and eight months’ salary calculated on Applicant’s last annual salary. 4. Payment by the Fund of $95,397.86 for legal fees and costs incurred by Applicant. ### Key numerical values preserved from the judgment - Tribunal session dates: May 4 and 5, 2021. - Anonymity and oral proceedings granted: March 12, 2021. - Fixed-term appointment duration and decision points: three-year fixed-term; career decision at 30 months; conversion effective at 36 months. - Grievance Committee dates: May 18, 2018 (Grievance filed); March 18, 2019 (Report); July 19, 2019 (Management response). - Compensation multipliers and amounts: - Compensation for non-conversion: three times Applicant’s last annual salary from the Fund. - Compensation for unfair non-selection process: four months’ salary based on Applicant’s last annual salary, plus adjustment for prior eight-month Grade A13 payment vs. eight months at Applicant’s last annual salary. - Legal fees and costs awarded: $95,397.86 (including $38,745.71 unreimbursed Grievance Committee fees noted in Applicant’s claim). *Administrative Tribunal of the International Monetary Fund — JUDGMENT No. 2021-2 (Mr. “RR” v. International Monetary Fund), Washington, D.C., December 24, 2021.* ### INTRODUCTION ........................................................................................................... ### INTRODUCTION ### Tribunal composition and session - The Administrative Tribunal of the International Monetary Fund sat on May 4 and 5, 2021. - The Tribunal was composed, pursuant to Article VII, Section 4 of the Tribunal’s Statute, of Judge Catherine M. O’Regan, President, and Judges Andrés Rigo Sureda and Deborah Thomas-Felix. - The session, including oral arguments, was held by videoconference coordinated by the Tribunal’s Registry pursuant to amended Article XI of the Statute, in light of the COVID-19 pandemic, travel restrictions, and the Fund’s work-from-home directive. ### Parties and representation - Applicant: Mr. “RR”, a former fixed-term staff member. - Represented by Mr. Peter C. Hansen and Mr. J. Michael King, Law Offices of Peter C. Hansen, LLC. - Respondent: International Monetary Fund. - Represented on the written pleadings by Ms. Diana Benoit, Senior Counsel, IMF Legal Department. - Ms. Juliet Johnson, Senior Counsel, IMF Legal Department, appeared in the oral proceedings. ### Scope of the dispute - Applicant challenges: - The decision not to convert his fixed-term appointment to an open-ended appointment (decision taken by the Deputy Managing Director/Chief Administrative Officer (DMD/CAO)), which rejected the Fund’s Review Committee (RC) endorsement of his Department’s recommendation to convert. - The subsequent decision not to select him for a vacancy for a similar position at a lower grade level, to which he applied. - Applicant’s assertions: - The non-conversion decision was arbitrary and capricious and not substantiated under applicable criteria. - The Fund failed to provide a fair opportunity to demonstrate suitability for career employment, including adequate warning of perceived performance deficiencies and reasonable opportunity to remedy them. - Human Resources Department (HRD) officials played an improper role in preparing periodic performance assessments and the Department’s memorandum supporting conversion. - The Fund failed to give timely notice of the non-conversion decision and failed to provide the decision in writing. - The non-selection decision was improperly influenced by the non-conversion decision and HRD officials wrongfully precluded his selection on that basis. - Relief sought by Applicant (as pleaded): - Rescission of decisions denying conversion and further employment. - Reinstatement to his former position converted to open-ended status, with back pay and benefits from termination until return, or 5 years of compensation for “extraordinary career damage,” unemployment, and reduced pension. - An additional 3 years’ salary for “actual, moral and intangible damages” (mental and emotional harm, loss of professional reputation and employment prospects, and additional harms alleged as resulting from the Fund’s violations of Applicant’s rights and due process). - All attorneys’ fees and costs incurred, including those in Grievance Committee proceedings not fully reimbursed. - In Reply, a separate award of moral and intangible damages for retaliation tied to Respondent’s invocation of an anonymously captioned decision of another international administrative tribunal in its pleadings. ### Respondent’s position - Management properly exercised its prerogative not to convert the fixed-term appointment despite Department recommendation and RC endorsement. - The decision was based on proper criteria, proper procedure, and a full review of the record. - Applicant was provided assignments affording a fair opportunity to demonstrate “career potential” and received early and unambiguous feedback on competency gaps. - HRD officials provided policy advice but did not improperly intervene in assessments or the Department’s recommendation. - A delay of some 2-1/2 months after the 30-month mark in taking the non-conversion decision was intended to enhance Applicant’s chances of conversion; Applicant was compensated for the lost portion of the notice period. - Non-selection to the lower-graded vacancy was based on proper considerations and free of improper HRD interference. ### PROCEDURE ### Filing and pleadings timeline - October 21, 2019: Applicant filed the Application with the Administrative Tribunal. - October 23, 2019: Application transmitted to Respondent. - October 31, 2019: Registrar circulated within the Fund a notice summarizing issues raised in the Application (pursuant to Rule IV, para. (f)). - December 9, 2019: Respondent filed its Answer. - January 13, 2020: Applicant filed his Reply. - February 13, 2020: Respondent filed its Rejoinder. ### A. Applicant’s requests for production of documents - Applicant’s Rule XVII requests in the Application: 1. “All internal and non-privileged documents and correspondence not produced to date, and materially relating to events or arrangements referenced above”; 2. “The draft of the . . . Report actually submitted to departments for review”; 3. “The memorandum sent to SPMs [Senior Personnel Managers] or other officials regarding the . . . issue, and demanded by [a Department Director].” - Fund’s responses: - Request No. 1: Fund stated all responsive documents had already been produced to Applicant during the Grievance Committee process and are before the Tribunal as Annexes to the Application. - Request No. 2: Fund attached to the Answer two versions of the draft Report circulated by Applicant’s work unit. - Request No. 3: Fund attached to the Answer a memorandum from the head of Applicant’s unit to the SPM Group. - Tribunal practice applied: - Where the Fund asserts no responsive documents exist and the applicant has not proffered evidence that such documents exist, the Tribunal denies the request on the ground the applicant has not shown he was “denied access” (Rule XVII (1)). See IMFAT Judgment No. 2019-2, para. 28. - Tribunal decision on production requests: - On March 12, 2021, after considering parties’ views and the record, the Tribunal denied Applicant’s requests for production of documents. ### B. Applicant’s request for anonymity - Applicant requested anonymity under Rule XXII, asserting prior “severe career damage” from non-conversion and termination and that performance assessment challenges justify anonymity. - The Fund did not oppose the request and acknowledged that “key evidence” relates to assessment of performance. - Tribunal precedent cited: - Mr. “HH”, IMFAT Judgment No. 2013-4 (October 9, 2013), para. 43: anonymity granted where performance assessment evidence would otherwise reveal identity. - Mr. “OO”, IMFAT Judgment No. 2019-2, para. 17: anonymity appropriate where assessment of “career potential” is central and evidence is from performance review documentation. - Mr. “QQ”, IMFAT Judgment No. 2020-1 (Motion to Dismiss in Part), para. 12: anonymity in non-promotion contexts where managers’ comparative assessments implicate professional competencies. - Ms. “NN”, IMFAT Judgment No. 2017-2, para. 29: anonymity where managers’ perceptions of performance are key factual elements. - Tribunal decision on anonymity: - Given jurisprudence and that the contested decisions relate to assessment of professional competencies with “key evidence” concerning job performance, on March 12, 2021, the Tribunal granted Applicant’s request for anonymity and so notified the parties. ### C. Applicant’s request for oral proceedings - Article XII of the Tribunal’s Statute and Rule XIII of the Rules of Procedure govern whether oral proceedings are warranted. - Applicant requested oral proceedings limited to oral arguments by counsel (Rule XIII, para. 6). - The Fund deferred to the Tribunal’s judgment on usefulness of oral proceedings. - Tribunal practice: - The Tribunal has routinely held oral proceedings when requested by applicants, limiting them to oral arguments of counsel to clarify legal issues and probe disputes of fact even when the written record is complete. See recent cases: IMFAT Judgment No. 2021-1, para. 25; IMFAT Judgment No. 2019-1, para. 27; Ms. “NN”, para. 23; IMFAT Judgment No. 2016-2, paras. 43-44. - Outcome: - The Tribunal held the session by electronic means, and oral arguments were heard as part of the videoconference session on May 4 and 5, 2021. *Administrative Tribunal of the International Monetary Fund — JUDGMENT No. 2021-2 (Mr. “RR” v. International Monetary Fund), Introduction and Procedure sections.* ### 22. On March 12, 2021, the Tribunal notif ied the parties that it had granted Applicant’s ### j2021-2 - 22. On March 12, 2021, the Tribunal notif ied the parties that it had granted Applicant’s ### Procedural steps and anonymity - On March 12, 2021, the Tribunal notified the parties that it had granted Applicant’s request for oral proceedings limited to the oral arguments of parties’ counsel. - The Tribunal decided the oral proceedings would be “held in private,” per Article XII of the Statute and Rule XIII, para. 1, because Applicant would not be referred to by name in the Tribunal’s Judgment. - Oral proceedings were held by videoconference on May 4, 2021, in accordance with Article XI of the Tribunal’s Statute, which allows for the holding of Tribunal sessions by electronic means. ### Factual background — Overview - March 2015: Applicant was hired by the Fund on a three-year fixed-term appointment at Grade A15 in one of the Fund’s offices (the “Office”). - The Fund provided Applicant with the governing Guidelines on Conversion of Fixed-Term Appointments (2006) when it offered him the post. - Applicant was recruited by Office Director 1, who served until October 2016. - An acting head of Office served for several months until Office Director 2 arrived in February 2017. - October 2017: Applicant’s Department recommended conversion of his fixed-term appointment to an open-ended appointment. - November 2017: the RC endorsed that recommendation following a due diligence review and committee deliberations. - December 2017: the DMD/CAO decided not to follow these recommendations and decided instead that Applicant’s fixed-term appointment would not be converted. - March 2018: Applicant’s three-year fixed-term appointment concluded and he separated from the Fund. - Before leaving, Applicant applied for a vacancy similar to his prior position but at a lower grade; following separation, Applicant was notified of his non-selection for that vacancy. ### Factual background — Assessment of Applicant’s performance - Fixed-term monitoring: Applicant’s performance was to be monitored at six-month intervals, culminating in a decision at the 30-month mark on conversion to open-ended appointment or lapse. - Central dispute: whether Applicant’s performance assessments provided timely feedback on shortcomings he would need to remedy to support conversion. Key performance records and interactions: - FY2016 APR (May 1, 2015 – April 30, 2016) - Prepared by Office Director 1. - Performance rating: “Effective.” - Narrative: noted transitional challenges largely overcome; established good working relationships; areas for development included continuing to expand knowledge of the Fund’s processes and operations and to adapt quickly and innovatively. - Applicant reported feeling “very positive about his progress and trajectory at the Fund.” - Office Director 1, in testimony, could not strongly recollect the discussion and said he was “just borrowing from the write-up,” but thought the conveyed message was that progress had been made and “there was still work to do.” - Late-2016 actions - Office Director 1 met with the Personnel Manager (PM) and HRD Deputy Director (HRD DD) and conveyed concerns about Applicant’s demonstration of performance consistent with A15 responsibilities and doubts about long-term suitability. - Applicant maintains such misgivings were not communicated to him. - Applicant’s mid-year review at end-2016 was conducted by the acting head of Office; Applicant recorded areas for development including need to expand knowledge of the Fund. - Applicant met with the PM to understand how the Fund’s leadership competency framework applied to his conversion assessment. - FY2017 APR (May 1, 2016 – April 30, 2017) - Prepared by Office Director 2. - Performance rating: “Effective.” - Narrative: Applicant “made some progress in addressing the feedback provided in previous mid-year and annual performance discussions”; “[Applicant’s] performance partially met the standards and key competencies expected for positions at Grade A15”; ability to demonstrate competencies would be key for assessment of suitability for long-term employment and conversion to open-ended status. - Applicant asserts FY2017 APR was the “first time that he had received any indication that the Fund had serious concerns about his work, or that his conversion might be in jeopardy.” - Preparation process and internal drafting - Office Director 2 asked the former acting head to draft the APR; first draft was broadly positive but noted need for intellectual leadership and strategic planning development. - Office Director 2 revised the draft to reflect unsatisfactory areas; draft sent to PM and HRD DD. - May 15, 2017 meeting (Office Director 2, former acting head, Office Director 1, PM) discussed possible options if conversion not approved (extend fixed-term, create lower-graded vacancy); HRD advised these alternatives were unlikely. - Email exchange among Office Director 2, PM, and HRD DD included disagreement over inserting the word “only” into sentence “Applicant’s performance only partially met the standards and key competencies . . .”; Office Director 2 wanted deletion; the word “only” did not appear in final APR. - June 23, 2017 performance discussion - Applicant expressed concern that time remaining before conversion decision in September would not provide enough opportunities to demonstrate sufficient progress. - Office Director 2 assured Applicant there would be opportunity to demonstrate progress, with a major task upcoming; conversion decision was agreed to be delayed beyond the 30-month mark so this work could be considered. ### Non-conversion of fixed-term appointment — process and findings - Conversion process for Grades A15-B2: decision taken by Fund Management following Department recommendation and endorsement by Review Committee (RC). - October 20, 2017: PM submitted Recommendation for Conversion Memorandum and supporting documentation to the RC recommending conversion. - Memorandum noted Applicant “initially needed time to become familiar with Fund processes and culture”; role complexities and evolving conceptual framework; Applicant “grown into the role well and is now performing his duties at an appropriate level and fulfilling an important institutional business need”; Applicant “demonstrated the potential for a longer-term career in the Fund within his specialized set of competencies.” - Office Director 2 supported conversion, stating Applicant met competencies on major task (August–October 2017), delivered a good product, managed interactions professionally, and received very positive feedback from supervised staff regarding leadership. - Review Committee (RC) endorsement (November 2017) - RC composition: chaired by HRD Director; comprises ten top-level (Grade B4) managers appointed by the Managing Director for three-year terms. - RC criteria for conversion: meet Fund’s performance requirements; demonstrated potential for a career at the Fund; appointment meets staffing requirements (GAO No. 3, Rev. 7, Section 3.02.1.3). - RC due diligence: RC reviewer interviewed some 12-14 people, including Applicant; findings memorialized in Independent Assessment Form (IAF) of November 15, 2017. - IAF findings: - “The candidate’s performance track record, as evidenced in the APRs, is not very strong, with the last APR raising significant shortcomings vis-à-vis the A15 competencies.” - The last APR established clear performance expectations and asserted Applicant “fulfilled” these expectations, but the track record was very short (some 4 months), raising questions whether conclusion was firm. - Senior managers preferred a longer trial period (not feasible under the old term contract). - On balance, view that Applicant warranted conversion and would be fungible. - Stakeholders outside the Office generally positive on strengths and fungibility; some dissenting feedback on early collaboration and integration that was largely overcome. - On longer-term suitability: “case is not very well substantiated,” though feedback from other departments more positive regarding fungibility. - On evidence of flexibility and interest to take different roles: “No firm evidence, as he worked so far only in one role in [the Office]. This said, he responded well when given different tasks and called upon to take on more responsibility. Furthermore, after a difficult start, it seems that he has integrated quite well into the Fund’s culture and work arrangements.” - Final question (“Given what you know of this person’s performance and potential, would you always want him or her on your team?”): “For work assignments that require his area of expertise . . . , he would be a good candidate; would need more testing on complex managerial assignments before assigning him to those.” - RC reviewer recommended conversion, describing the case as “a difficult call,” noting arguments on both sides and that factors tilting balance included support from Applicant’s own group and positive views from several other departments. - RC meeting discussion characterized by the reviewer as “relatively brief” with “agreement on the outcome” and “no . . . dissenting voice.” - November 29, 2017: RC’s decision endorsing the Department’s recommendation for conversion (and endorsements of seven other candidates) was transmitted to the DMD/CAO, seeking her approval; transmittal included Department’s recommendation packet and the IAF. - December 2017: DMD/CAO decided not to follow the RC and Department recommendations and did not convert Applicant’s fixed-term appointment. - The Fund stipulated that among 47 individuals hired at Grade A15 on three-year fixed-term contracts from 2000 to the present, 8 separated prior to the 30-month decision, and among the remaining 39, all were recommended for conversion by their Departments and endorsed by the Review Committee; Applicant is the only individual among those 39 whose recommendation was not accepted by Management. - Fund law does not prescribe how the Managing Director or delegate should exercise discretion upon receiving the RC report. - In Grievance Committee testimony, the DMD/CAO described the RC as giving “an institutional view to the promotions and to the conversions to open-ended contracts, . . . in a very reasoned way,” and stated she was not “a rubber stamper,” explaining that when she receives files from the RC (six to eight times per year) she reads files to decide whether “to say yes or no.” *Tribunal notification March 12, 2021; oral proceedings May 4, 2021.* ### 51. When the DMD/CAO received the packet of materials relating to Applicant, she read ### j2021-2 - 51. When the DMD/CAO received the packet of materials relating to Applicant, she read ### Chronology of review and decision-making interactions - The DMD/CAO reviewed the packet of materials relating to Applicant, marking them during review, and her Office sent a memorandum to the RC stating: “[The DMD/CAO] has cleared the attached memo, with the exception of [Applicant’s] open-ended conversion . . . as it is unclear whether there will be an ongoing business need for the candidate’s role in the Fund in view of the candidate’s profile, skills and career experience.” - The Secretary of the RC followed up: asked to clarify how the DMD/CAO applied the criteria, suggested the DMD/CAO might not be questioning ongoing business need (criteria #3) but rather had a different judgment on performance and potential (criteria #2 and #3), and proposed assistance in drafting communications once rationales were clear. - The Secretary of the RC again queried whether the DMD/CAO should speak to the RC or the due diligence member to ensure a “more deliberate decision-making process,” noting that the DMD/CAO had arrived at a different conclusion based on the same material and that [Legal Department] advised [PORTION REDACTED]. - The HRD Director organized a meeting attended by the DMD/CAO, HRD Director, HRD DD (not an RC member), Secretary to the RC, and the RC reviewer. The RC reviewer presented his due diligence findings as before and perceived during the meeting that the DMD/CAO took a different view and was likely not to approve conversion. ### DMD/CAO rationale for non-conversion - The DMD/CAO’s final rationale, communicated by email from DMD/CAO staff to the HRD Director and the RC, stated: “[G]iven the position’s seniority in the [Office], the candidate has not sufficiently demonstrated his leadership potential in driving innovation and guiding strategic changes.” - In testimony to the Grievance Committee, the DMD/CAO explained: - She did not think Applicant, whose FY2017 APR of July 2017 had questioned whether he had demonstrated key Grade A15 competencies, could have developed them by October 2017, when the memorandum recommending conversion recorded that he had. - The Department would have liked to afford Applicant a longer trial period, but that was not possible within Fund rules. - Applicant’s long-term suitability at the Fund was not well substantiated and his APRs were not strong. - Applicant’s expertise was “easy to find in the market.” This view echoed an original annotation that Applicant’s skills were “easy to find.” - Contrasting testimony: - Office Director 1 testified recruiting for Applicant’s position had not been straightforward. - Office Director 2 testified the post Applicant held was “a very complex assignment” and “a very difficult position to fill.” - The Department’s Memorandum recommending conversion stated Applicant was “fulfilling an important institutional business need.” ### Communication of non-conversion and separation - Fund Management’s decision not to convert Applicant’s fixed-term appointment was verbally communicated by HRD to Office Director 2, who notified Applicant. - Respondent states the “content of [the DMD/CAO]’s December 13 explanation was shared orally with Applicant by HRD and [the RC reviewer].” - It is undisputed that Applicant was not provided a written non-conversion decision or its rationale. - In accordance with the decision, Applicant was separated from the Fund at the expiration of his fixed-term appointment in March 2018. - Applicant received a lump-sum payment to compensate for the less-than-6-months’ notice period. ### Post non-conversion: application for lower-graded vacancy and non-selection - Office Director 2 proposed advertising a Grade A13/A14 vacancy covering some functions Applicant had performed, and expressed interest in considering Applicant. - HRD DD testified HRD would not support appointment of Applicant to a lower-grade post despite eligibility, citing the recent conclusion that Applicant lacked potential to go “above and beyond” and deeming reappointing him to the same testing grade unreasonable. - HRD Director testified it would be “strange” and “awkward” to appoint Applicant to the vacancy. - The vacancy was advertised at Grade A13/14; Applicant applied and was shortlisted; panel members considered him one of the top candidates, but he was not selected. - Email from Office Director 2 to HRD DD: “[o]ur decision process was very much guided by HR’s position that you would not be supportive of [Applicant’s] selection.” - Vacancy Selection Recommendation language: “[Applicant], an internal [Office] candidate, held a similar position in [the Office] previously (and for several years at [another institution]), would have fit the position, and performed very well at the interview. However, his candidature was not considered further based on a recent institutional decision not to convert his Fixed Term Contract into an Open-Ended contract (at A15 level) based on insufficient leadership potential in driving innovation and guiding strategic change.” - Applicant contends HRD officials effectively excluded him from the competition based on the non-conversion decision. ### Channels of administrative review, Grievance Committee findings, and Fund Management response - Applicant was not required to exhaust any channel of review prior to filing his Grievance with the Fund’s Grievance Committee because Fund Management took the contested non-conversion decision. - On May 18, 2018, Applicant filed his Grievance, later expanded to include the non-selection decision. - The Grievance Committee had oral hearings and briefs; witnesses included the DMD/CAO, Office Director 1, HRD Director, Office Director 2, acting head of the Office, HRD DD, RC reviewer, and Applicant. - On March 18, 2019, the Grievance Committee Report and Recommendation concluded: - (1) Applicant did not prevail on his challenge to the non-conversion decision. - (2) Applicant prevailed in his challenge to the non-selection decision. - The Grievance Committee recommended reinstatement to a term appointment at the lower-graded position as remedy for non-selection. - After submissions seeking deviations from the Committee Recommendation, on July 19, 2019, the Acting Managing Director notified Applicant Fund Management accepted the Committee’s recommendations as to merits but rejected reinstatement remedy. - Fund Management determined Applicant would be paid monetary compensation equivalent to eight months’ salary, “reflecting a reasonable period within which to secure other employment,” calculated at the rate Applicant would have been paid had he been selected for the position. - The Fund reimbursed 50 percent of Applicant’s legal fees incurred in the Grievance Committee proceedings. - Notification concluded: “Neither this award by the Fund, nor your acceptance of it, constitutes a concession by either party with respect to the merits of the case, should you choose to proceed to the Administrative Tribunal.” - On October 21, 2019, Applicant filed his Application with the Administrative Tribunal. ### Parties’ principal contentions — Applicant - Applicant’s summarized arguments include: 1. Non-conversion decision arbitrary and capricious; not substantiated by applicable criteria; Applicant merited conversion. 2. Mismanagement of Applicant’s career; denied fair opportunity to demonstrate suitability; lack of adequate warning and reasonable opportunity to remedy deficiencies. 3. HRD officials improperly influenced performance assessments and the Department’s submission to the RC. 4. Office Director 1 wrongfully undermined conversion prospects. 5. “Career potential” was raised belatedly as post hoc justification; lack of objective metrics; ambiguity whether “career potential” referred to A to B grade advancement or fungibility across work units. 6. “Business need” was an invalid pretext conflating Fund business needs with individual replaceability. 7. DMD/CAO abused discretion by overriding RC’s collective judgment; RC’s recommendation entitled to a “presumption of success absent truly extraordinary circumstances” or “severe or systemic error”; DMD/CAO “violated binding Fund custom”; Tribunal should apply exacting review for abuse of discretion. 8. Violation of Applicant’s right to timely notice of non-conversion (decision taken less than six months before expiration) and wrongful denial of extension. 9. Failure to provide written decision stating reasons constituted procedural wrong and intangible injury. 10. Abuse of discretion in not selecting Applicant for the lower-graded vacancy. 11. HRD officials improperly determined Applicant would not be selected and imposed that on the panel. 12. Respondent’s invocation of an anonymously captioned decision of another international administrative tribunal to impeach Applicant’s credibility amounted to “cross-institutional retaliation.” 13. Relief sought includes: - a. rescission of decisions denying conversion and further employment; - b. reinstatement to Grade A15 position converted to open-ended with back pay and benefits, or 5 years of compensation; - c. additional 3 years’ salary for “actual, moral and intangible damages” for mental and reputational harm; - d. all attorneys’ fees and costs, including those not fully reimbursed from Grievance Committee proceedings. 14. For Respondent’s use of the anonymous decision, Applicant seeks a “new, separate, specific and substantial award of moral and intangible damages” for retaliation, privacy and mental health harm, and interference with right to bring good-faith claims. ### Parties’ principal contentions — Respondent - Respondent’s summarized arguments include: 1. Fund Management properly exercised its prerogative not to convert Applicant’s fixed-term appointment after full review; decision based on proper criteria and procedure. 2. Conclusion that Applicant lacked “career potential” provides sufficient basis for non-conversion. 3. Non-conversion also supported by “business need,” i.e., necessary expertise would be available in the market. 4. Applicant’s managers provided assignments affording a fair opportunity to demonstrate “career potential,” including leadership and innovation tasks. 5. Applicant was given early and unambiguous feedback on competency gaps and opportunities to remedy shortcomings. 6. HRD officials’ role in assessment and preparation of Department recommendation was appropriate and consistent with HR service structure and “heightened HR support and advice [to be given] to managers dealing with difficult cases.” 7. Applicant’s contentions of being misled about job content or conversion prospects are not credible. 8. Office Director 1 did not play an improper role. 9. A delay of some 2-1/2 months after the 30-month mark in reaching the non-conversion decision did not amount to unfair process; delay intended to enhance Applicant’s chances; Applicant was paid monetary compensation for the lost portion of the notice period; rules applicable to fixed-term staff hired in March 2015 did not permit extension beyond the 36-month fixed term. 10. Non-selection for the lower-graded position was a valid exercise of discretion. 11. HRD officials provided policy advice but did not improperly intervene in non-selection. 12. Invocation of an anonymously captioned decision of another tribunal to impeach Applicant’s credibility was proper in Respondent’s confidential pleadings. 13. Applicant’s request for full attorneys’ fees for Grievance Committee representation should be denied on proportionality given partial success; same principle should apply to Tribunal fees if Application is well-founded in part. ### Relevant internal law reference - GAO No. 3 (Employment of Staff Members), Rev. 7 (May 1, 2003), Section 3 governed types of appointments and the conversion of fixed-term appointments to open-ended appointments during Applicant’s employment; Sections 3.02.1.2 and 3.02.1.3 refer to conversion provisions. *Source: Administrative Tribunal record j2021-2.* ### Section 3. Types of Staff Positions and Appointments ### Section 3. Types of Staff Positions and Appointments ### 3.02 Types of Staff Appointments — Open-ended appointments - Open-ended appointments are for: - (i) functions that carry out the mission of the Fund (positions directly involved in consultations and negotiations with member countries and those that perform other key ongoing functions essential to the basic operation of the Fund); and - (ii) functions that support the mission of the Fund and - (a) for which the Fund wishes to build expertise and the skills requirements are not likely to change significantly over several years, or - (b) that require institutional knowledge and continuity. - Before being offered an open-ended appointment, staff shall be hired initially on a fixed-term appointment for a specified period of time to test their suitability for career employment. Persons holding fixed-term appointments shall be designated as fixed-term staff members. - If fixed-term staff members meet the performance requirements, demonstrate potential for a career at the Fund, and meet the Fund’s staffing requirement, their appointment may be converted from fixed-term to open-ended status at the expiration of the fixed-term appointment. Persons holding open-ended appointments shall be designated as regular staff members. ### Guidelines for Conversion of Fixed-Term Appointments (2006) - Purpose and initial term: - The Fund’s policy is to maintain a strong cadre of staff on an open-ended basis through “regular” staff appointments; initially new staff are hired on a fixed-term basis for three years. - Guidelines ensure fixed-term staff gain an accurate understanding of fixed-term status and realistic prospects for conversion. - Intentions and legal limits: - Mutual objective during the fixed-term appointment is to enable the staff member to perform at full capacity and demonstrate potential for the future. - The Fund’s legal obligation does not go beyond the fixed-term appointment unless a formal written commitment to conversion is made by the Fund’s Human Resources Department (HRD) in accordance with the procedures. - Conversion decision criteria: - Conversion depends on: - the departmental assessment of the staff member’s performance during the fixed-term appointment; - the individual’s long-term potential for a successful career with the Fund; and - the department’s and institution’s staffing needs. - There must be a clearly positive assessment of performance and potential, but short- and long-term staffing needs of the Fund are of paramount importance and may justify non-conversion even where performance and potential are positive. - Monitoring and decision-making timeline and process: - Within the first three months: key responsibilities and objectives established during a performance planning discussion. - Six to seven months after planning discussion: feedback session with brief performance feedback; possible new or revised objectives. - Twelfth month: detailed performance assessment; next detailed assessment occurs in the context of the Fund’s annual performance review (APR) cycle at least six months after the twelfth month review. If the period between these assessments is greater than nine months, a mid-point performance assessment will be held halfway between the two detailed assessments. - At the thirty-month point (i.e., six months before the end of the fixed-term appointment): another detailed assessment to allow informed career employment assessment. - Performance will be assessed as either (1) meeting required standards, or (2) not meeting required standards in one or more key areas of responsibility. - Department will assess potential for a career in the Fund and whether skills and experience meet staffing needs. - HRD will review the department’s assessment against criteria and broader institutional staffing needs. - Based on assessments, the fixed-term staff member will either (1) be offered conversion to an open-ended appointment, or (2) will not be offered conversion and the fixed-term appointment will be allowed to lapse. - If conversion is offered, HRD will issue a change of appointment letter; conversion becomes legally binding once the change of appointment letter has been issued and becomes effective at the end of the fixed-term appointment. - Applicability exclusions: - Guidelines do not apply to individuals on secondments (where conversion is not possible) or to categories with separate rules (i.e., Grade B3–B5 staff recruited externally, participants in the Economist Program, Research Assistants in the two-year Research Assistant Program, limited-term appointees, and staff on part-time employment). ### Intranet note: Career Employment Decision (procedural specifics) - Timing: - The career employment decision occurs 30 months after the fixed-term hire date and will become effective at the end of the fixed-term appointment (the 36th month). - Requests for early conversion decisions will not be endorsed by HRD, except through Limited Term credit, as per the Fiscal Year 2012 revision. - Assessment scope at 30 months: - Includes the staff member’s overall performance over the entire fixed-term period. - Staff member may document key achievements since the last annual performance review and submit to the manager. - Required criteria for conversion decision: 1. The staff member meets the established performance requirements for the position; 2. The staff member demonstrates potential for a career in the Fund; and 3. The conversion decision is consistent with the Fund's staffing needs. - Possible outcomes: - Conversion from a fixed-term to an open-ended appointment; or allowing the fixed-term appointment to lapse. - Review Committee (RC) involvement: - Review Committee endorsement is required for all fixed-term staff appointed at Grades A14 (Deputy Divisions Chief) to B2. - Recommendations needing RC endorsement must be submitted to HRD at least six weeks prior to the 30 month conversion decision date to identify an RC date. - Discussion with the staff member should be scheduled only after RC endorsement and HRD approval. ### Intranet note: Review Committee (composition and remit) - Role: - The Review Committee (RC) advises the Managing Director on managerial appointments, fixed-term conversions, and promotions at Grades A15—B2 and titled supervisory positions at Grade A14, plus consideration of Resident Representative and RTAC Coordinator positions. - The RC has a talent review process for A15 fungible macroeconomists producing an RC List (B List); inclusion in the RC List is prerequisite for fungible economist appointments at Grade B1. - RC meets annually for promotion considerations to Grade B2 and as needed to replenish the RC List; RC also meets regularly to consider selections to titled supervisory vacancies at Grades A14/A15, resident representative vacancies, and fixed-term/term conversion decisions. - Vacancy selections that are lateral transfers or selections from the B list do not require further RC endorsement though HRD notification is necessary. - Membership: - RC is composed of the Director of HRD, who serves as Chairperson, and ten members at Grade B4 appointed by the MD for three-year terms. - Members serve in individual capacities, not as departmental representatives. - HRD serves as the secretariat to the committee. ### Tribunal consideration — Challenge to non-conversion decision and standards of review - Principal legal questions: - (a) Did the Fund abuse its discretion in taking the decision not to convert Applicant’s fixed-term appointment to an open-ended appointment? - (b) Did the Fund abuse its discretion in taking the decision not to select Applicant for a vacancy for a similar, but lower-graded, position to which he applied following the non-conversion decision? - Additional allegation: impermissible retaliation by the Fund through invocation of an anonymously captioned decision of another international administrative tribunal in pleadings. - Standard of review: - Non-conversion is an individual managerial decision reviewable for abuse of discretion. - Applicant’s challenge succeeds only if decision was “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.” - The Fund’s discretion is constrained by principles of fair treatment and applicable internal law. Internal law required conversion only if staff “meet the performance requirements, demonstrate potential for a career at the Fund, and meet the Fund’s staffing requirement.” - Procedural protections and monitoring expectations: - Fixed-term appointee must be evaluated periodically, given adequate warning of performance deficiencies, and afforded reasonable opportunity to remedy them. - The fixed-term monitoring process is intended to assist managers in evaluating both performance and career potential. - Decisions assessing career potential are afforded considerable deference but must be exercised with deliberation and absence of improper motive. - Unusual factual posture in the present case: - This is the first case before the Tribunal where the department recommended conversion, the RC endorsed conversion, but Fund Management declined to follow the RC’s advice. - Tribunal focuses on whether the DMD/CAO’s decision to reject the RC recommendation constituted an abuse of discretion. - Issues identified for Tribunal inquiry regarding DMD/CAO decision: - (a) What were the reasons for the DMD/CAO’s decision? - (b) If decision rested on business need criterion not being established, did that constitute a rational basis? - (c) If decision rested on conclusion that Applicant lacked leadership potential in driving innovation and strategic changes, was Applicant afforded adequate warning and opportunity to remedy deficiencies? - (d) Did failure to provide Applicant with written notice of the non-conversion decision or its rationale violate duty to exercise discretion with fair and reasonable procedures? - Evidentiary note: - DMD/CAO did not provide Applicant with written record of her decision or rationale; Tribunal must infer reasons from two memoranda dated December 4, 2017 and December 13, 2017 and DMD/CAO testimony before the Grievance Committee, which do not present a clear or consistent account. *Source: Section 3. Types of Staff Positions and Appointments (IMF internal rules, Guidelines for Conversion of Fixed-Term Appointments, Intranet notes on Career Employment Decision and Review Committee, and Administrative Tribunal deliberations).* ### 86. Prior to making her decision, the DMD/CAO perused the bundle of documents she ### j2021-2 - 86. Prior to making her decision, the DMD/CAO perused the bundle of documents she ### Review process and documents considered - The DMD/CAO reviewed the RC file, which included: - the Department’s Memorandum recommending conversion of Applicant’s fixed-term appointment to an open-ended appointment; - Applicant’s curriculum vitae; - the Fixed-Term Performance Monitoring (Career Decision Review) for Applicant (including his FY2016 APR, his 2017 APR and his 6-month review in September 2015); - the IAF report prepared by the RC reviewer. - After review, the DMD/CAO’s office sent a first memorandum to the RC on December 4, 2017, stating the DMD/CAO had “cleared” the recommendations except the open-ended conversion because “it is unclear whether there will be an ongoing business need for the candidate’s role in the Fund in view of the candidate’s profile, skills and career experience.” - A revised memorandum was issued on December 13, 2017, accepting the RC recommendations “with the exception of the open-ended conversion [relating to Applicant] as management is of the view that given the position’s seniority in the [Office], the candidate has not sufficiently demonstrated his leadership potential in driving innovation and strategic changes.” ### Communication, meetings, and internal concern for legal robustness - The RC Secretary on December 5, 2017 (the day after the first memorandum) wrote urging that “the . . . decision be communicated clearly to the RC, [the Office] and the staff and, the decision-making process is legally water-tight.” - On December 8, 2017 the RC Secretary sought advice from the HRD Director on whether the DMD/CAO should speak to the RC “not to question her decision but to ensure a more deliberate decision-making process.” - The HRD Director convened a meeting attended by the DMD/CAO, the HRD Director, HRD DD, Secretary to the RC, and the RC reviewer to “clarify my findings” with those of the RC reviewer. - The RC reviewer presented the same recommendation as to the RC committee (conversion), but perceived that the DMD/CAO “was against the conversion.” ### DMD/CAO’s stated reasons and testimony inconsistencies - First memorandum reason: absence of ongoing business need (criterion #3). - Revised memorandum reason: Applicant had “not sufficiently demonstrated his leadership potential in driving innovation and strategic changes” (criterion #2). - DMD/CAO’s testimony to the Grievance Committee: - Noted only four months had elapsed between the FY2017 APR (which noted Applicant had “partially met” required Grade A15 competencies) and November 2017 recommendation for conversion; she considered it not “possible” Applicant could have rectified shortcomings in that period. - Made marginal annotation “easy to find in the market” indicating belief Applicant’s expertise was readily replaceable. - Claimed her assistant “didn’t summarize [the memorandum] properly” and “didn’t put all the reasons that I had,” asserting she “analyze[s] potential performance and the institutional view.” - Tribunal observation: the DMD/CAO’s testimony suggested multiple reasons (absence of business need and lack of career potential), contradicting each single-reason memorandum; no explanation provided in the revised memorandum for the change in stated reason. ### Tribunal findings on business need as a basis for non-conversion - Evidence on the record indicating a clear business need for the post: - The Department’s Memorandum proposing conversion stated the post fulfilled “a key business need for [the Office] and for which it can be difficult to find a good fit, either inside or outside of the Fund.” - Both Office Director 1 and Office Director 2 testified that the skills needed in Applicant’s position were hard to find. - Following non-conversion, the Office immediately advertised a post to perform the functions Applicant had performed; Office Director 2 stated: “we had a business need. So we needed to have someone essentially to do the job that [Applicant] was doing before.” - The Fund later “pointedly abandoned its reliance on the business need criterion, conceding that there was a need for the responsibilities that Applicant was fulfilling in his post.” - Tribunal conclusion: - The record establishes a business need for the post and that the skillset was not easy to find. - To the extent the DMD/CAO relied on absence of business need, the Tribunal concludes she made a material error on the facts and that “no rational basis exists on the record for the contrary view taken by the DMD/CAO.” ### Warning, feedback, and opportunity to remedy regarding leadership potential - The revised memorandum’s stated reason relates to Applicant’s potential in the Fund: lack of demonstrated leadership potential to “driv[e] innovation and strategic changes.” - For non-conversion not to be an abuse of discretion, the Tribunal cites that “the fixed-term appointee must be afforded adequate opportunity to demonstrate performance consistent with suitability for career employment.” (Mr. “HH”, para. 131.) - Timing of when Applicant was informed of competency shortcomings: - Applicant asserts he was only informed in June 2017, when he received his FY2017 APR, more than two years after joining the Fund and only months before conversion decision. - The Fund relies on Office Director 1’s testimony that he had “unambiguously” informed Applicant of areas for improvement at the time of the FY2016 APR; however Office Director 1’s testimony shows inconsistency and limited recollection. - PM’s testimony lacked recall of whether he attended the six-month review and what was discussed. - Applicant’s December 16, 2016 mid-year review note contains no reference to shortcomings; Applicant testified he learned of the Fund’s leadership competency framework at that meeting and subsequently met the PM on December 22, 2016 to “understand better the leadership competency framework.” - A July 2017 email from the PM to Office Director 2 claimed Applicant “cannot claim that he did not receive feedback about the gaps in the competencies required at his grade earlier than the 2017 APR session,” but the record contains no supporting evidence that Applicant received such feedback prior to June 2017. - Tribunal conclusion: - The Tribunal concludes Applicant was only informed in June 2017, two years after starting at the Fund, that he was seen as not fully meeting Grade A15 competencies. - Prior performance reviews (2015 mid-year, FY2016 APR, 2016 mid-year) did not apprise Applicant of material shortcomings that could have signaled jeopardy to conversion. - Applicant described his reaction to the FY2017 APR as one of “shock” and being “very, very surprised,” noting it was “so serious in terms of the potential implications and so unexpected.” *Excerpt from the Tribunal’s judgment.* ### 117. Upon receiving his FY2017 APR, and realizing that there were concerns about whether ### j2021-2 - 117. Upon receiving his FY2017 APR, and realizing that there were concerns about whether ### Background and timeline - Upon receiving his FY2017 APR, Applicant raised how he could meet Grade A15 competency requirements in the short period before the conversion decision. (Paragraph 117) - Applicant discussed this with Office Director 2, the former acting head of the Office, and the PM. (Paragraph 117) - Office Director 2 proposed a major task that would provide opportunity to demonstrate competencies; the task would be completed in late October, whereas the conversion recommendation would ordinarily be prepared in September. Office Director 2 decided to delay the conversion recommendation until the task concluded. (Paragraph 118) - Office Director 2 assessed Applicant’s performance on the task as meeting competencies and delivering a “good product,” with positive feedback from supervised staff and professional management of contentious interactions. He concluded the demonstrated competencies “matched what my expectations would be for an A15 based on the leadership competency framework in the Fund.” (Paragraph 119) - After completion of the task, the Department prepared its Memorandum supporting conversion of Applicant’s fixed-term appointment to an open-ended one; Office Director 2 consulted colleagues in other departments in assessing Applicant’s potential for the conversion memorandum. (Paragraph 120) - In May 2017, Office Director 2 explored extending Applicant’s fixed-term appointment with HRD following the FY 2017 APR, but was informed Fund internal law would not permit that extension. (Paragraph 121) - Office Director 2 was satisfied Applicant raised his performance to a satisfactory level by the time the recommendation for conversion had to be made. (Paragraph 122) ### Tribunal findings on notice and opportunity to improve - The Tribunal noted that Applicant was given notice of performance shortcomings only a few months before the conversion decision, and found that the Fund’s failure to provide clear warning until that late stage violated the Fund’s obligation to afford fixed-term appointees adequate warning of performance deficiencies and a reasonable opportunity to remedy them. (Paragraph 123) - The Tribunal held that if the DMD/CAO based her decision on Applicant’s lack of career potential without considering whether he had been given adequate notice and opportunity to remedy shortcomings, that decision constituted an abuse of discretion. (Paragraph 123) ### Failure to provide written reasons for non-conversion - The DMD/CAO did not provide a written decision to Applicant explaining why his fixed-term appointment was not converted; Applicant was told of the decision orally by Office Director 2, and the two memoranda the DMD/CAO provided to the RC were not furnished to Applicant. (Paragraph 124) - The Tribunal affirmed that a reasoned written explanation is a general principle of international administrative law when a decision has a profound impact on employment status. (Paragraph 125) - The Tribunal referenced authorities emphasizing the functional importance of written reasons for transparency, review, accountability, and prevention of abuse of discretion. (Paragraphs 126–127) - The Tribunal identified three beneficial consequences of a written decision in such circumstances: enabling the affected person to know the rationale and fostering trust; facilitating review and accountability; and encouraging coherent and consistent decision-making. (Paragraph 128) - The absence of a written decision deprived Applicant of a transparent account of the reasons, hampered the Tribunal’s review, and may have contributed to failures to clearly articulate reasons. The Tribunal concluded that the Fund’s failure to provide a written decision and written reasons constituted an abuse of discretion in violation of the duty to exercise discretionary authority consistently with fair and reasonable procedures. (Paragraphs 129–130) ### Tribunal’s conclusions on the DMD/CAO’s exercise of discretion - The Tribunal concluded the DMD/CAO’s exercise of discretion in rejecting the RC recommendation to convert Applicant’s fixed-term appointment was marred by three major flaws. (Paragraph 131) - Flaw 1: No written reasons were provided to Applicant. (Paragraph 132) - Flaw 2: The internal reasons given by the DMD/CAO were inconsistent across her December 4, 2017 memorandum, her revised December 16, 2017 memorandum, and her testimony, leaving the Tribunal uncertain as to the actual basis for the decision. In the first memorandum she suggested the reason related to the business needs of the Fund; that reason did not appear in the revised memorandum. (Paragraphs 133–134) - The DMD/CAO’s reliance on the ease of replacing Applicant’s skills conflicted with evidence from Office Director 1 and Office Director 2, and no evidentiary explanation was provided for that divergent view. The Tribunal concluded the “business needs” explanation did not provide a rational basis for the decision. (Paragraph 134) - Flaw 3: The revised memorandum and testimony asserted Applicant “has not sufficiently demonstrated his leadership potential in driving innovation and strategic changes.” (Paragraph 135) - The Tribunal found that because Applicant had not been given adequate warning that he was not demonstrating leadership potential until months before the conversion decision, basing the decision on lack of career potential violated the Fund’s duty to give adequate warning and opportunity to improve. (Paragraph 136) - The DMD/CAO concluded from file review, without discussion with Office Director 2, that Applicant could not have improved within the four months between July and October 2017; the Tribunal observed that this assumption effectively rendered Applicant ineligible for conversion and deprived him of an adequate opportunity to demonstrate suitability for career employment. The Tribunal treated this as an abuse of discretion. (Paragraphs 137–138) - For these reasons, the Tribunal concluded the DMD/CAO’s decision to reject the RC’s recommendation constituted an abuse of discretion. (Paragraph 139) ### Non-selection for a lower-graded vacancy: allegations and standards - Applicant alleged the decision not to select him for a similar, lower-graded position to which he applied was improperly influenced by the non-conversion decision and that HRD officials wrongfully precluded his selection. Respondent maintained the non-selection was based on proper considerations and HRD officials did not intervene improperly. (Paragraphs 140–141) - The Tribunal stated the standard of review for non-selection challenges is abuse of discretion; such decisions may be overturned if shown to be “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.” The Tribunal will test a challenged selection process against the Fund’s internal law and general principles of international administrative law. (Paragraphs 142–143) - The Tribunal emphasized that staff members applying for vacancies have a right to have their candidacy fairly considered and that a transparent, rules-based vacancy selection process protects against arbitrariness and discrimination. (Paragraph 143) ### Facts concerning the lower-graded vacancy and eligibility - Once Office Director 2 learned of the non-conversion decision, he began finding someone to carry out Applicant’s previous tasks due to business need. (Paragraph 145) - Office Director 2 was concerned that appointing at Grade A15 set “an implausibly high bar for their conversion to open-ended staff” for an external hire; he noted appointing someone at A15 from outside to perform at that level judged by the whole institution “was a very, very high bar.” (Paragraph 146) - Office Director 2 hoped for a large pool of qualified candidates and for the possibility of retaining Applicant “in some capacity.” (Paragraph 146) - For those reasons, the new post was advertised at Grade A13/A14. Office Director 2 had first raised the possibility of a lower-grade post with HRD at a meeting of May 15, 2017; at that stage HRD advised that regrading Applicant’s post while he was in post would have the consequence that any conversion to an open-ended appointment would not be possible. (Paragraph 147) - Applicant was informed a new post at a lower level would be advertised; he met with the HRD Director to ask whether he would be eligible to apply, but testified she did not respond to his inquiry. (Paragraph 147) - Office Director 2 consulted the PM who informed him Applicant was eligible to apply; the PM testified that after extensive discussions the conclusion was Applicant was eligible because it was “a different job, a different job title, different grade band,” although “was not ideal.” (Paragraph 148) *The Tribunal judgment excerpt.* ### 149. Applicant did apply for the post in early 2018. He was shortlisted f or the position and ### j2021-2 - 149. Applicant did apply for the post in early 2018. He was shortlisted f or the position and ### Background: application, shortlisting, and HRD intervention - Applicant applied for the post in early 2018, was shortlisted, and was interviewed by a selection panel comprising Office Director 2, the acting head of the Office, the PM and another Fund manager. - A group of nine candidates, both internal and external, were shortlisted. - After tallying panel scores before deliberations, Applicant held the second highest score among the candidates; the panel ultimately selected another candidate who had scored slightly higher than Applicant. - Office Director 2 drafted a vacancy selection recommendation that initially included the statement that Applicant “. . . was qualified f or this new position, and performed very well in the interview. However, his candidature was not considered f urther as HRD indicated it would not support his selection in consideration of a recent institutional decision not to convert his Fixed Term Contract into an Open Ended contract (at A15 level) based on a judgment that he demonstrated insufficient leadership potential in driving innovation and guiding strategic change.” - HRD DD objected to including the phrase “as HRD indicated it would not support his selection.” The final vacancy selection recommendation deleted the reference to HRD and stated: Applicant “. . . would have fit the position, and performed very well in the interview. However, his candidature was not considered further based on a recent institutional decision not to convert his Fixed Term Contract into an Open-ended contract (at A15 level) based on insufficient leadership potential in driving innovation and guiding strategic change.” ### Tribunal findings on HRD interference and non-conversion - The Tribunal finds that HRD improperly interfered with the selection process in relation to Applicant. - The Tribunal’s view: once a candidate is deemed eligible to apply for a post in the Fund, that candidate should be treated the same as other candidates; it is impermissible for the Fund to advise eligibility and then inform the selection panel that HRD will not approve the appointment. - The Tribunal notes that proving abuse of discretion in a non-selection does not require establishing that the complainant would have been selected absent the unfair action (citing prior jurisprudence). - The Fund did not identify any rule precluding Applicant’s selection for the Grade A13/A14 vacancy following the non-conversion of his fixed-term appointment at Grade A15. In the absence of such a rule, HRD officials’ intercession unfairly deprived Applicant of the opportunity to compete. - The Tribunal concluded that the non-conversion decision was invalid; accordingly, even if non-conversion could be a basis for exclusion (which the Tribunal does not endorse), it could not be relied upon in Applicant’s circumstances. ### Tribunal consideration of alleged cross-institutional retaliation - Applicant contended that Respondent’s citation, in its pleadings, of an anonymously captioned decision of another international administrative tribunal to impeach Applicant’s credibility amounted to “cross-institutional retaliation” and sought separate moral and intangible damages. - Respondent defended its citation as proper use of publicly available material in confidential pleadings. - The Tribunal decided Applicant’s credibility was not material to the Judgment because the essential facts were undisputed and the challenged point was not material; the Tribunal gave no evidentiary weight to the anonymously captioned tribunal decision and declined to decide whether such a decision could be considered in other circumstances. ### Conclusions of the Tribunal - The Tribunal concluded the Fund abused its discretion: - in deciding not to convert Applicant’s fixed-term appointment to an open-ended appointment, and - in the process applied in deciding not to select Applicant for a vacancy to which he applied following the non-conversion. - The Tribunal prescribes relief accordingly. ### Remedies ordered (statutory framework and applications sought) - Applicant sought: - (a) rescission of the Fund’s decisions to deny conversion and further employment; - (b) reinstatement converted to open-ended status with back pay and benefits or 5 years of compensation for “extraordinary career damage,” unemployment, and reduced pension; - (c) an additional 3 years’ salary for “actual, moral and intangible damages” for mental and emotional harm, loss of reputation and prospects, and other harms; - (d) all attorneys’ fees and costs, including those in Grievance Committee proceedings not fully reimbursed; - and, in Reply, a separate award for retaliation relating to the anonymously captioned decision citation. - The Tribunal’s remedial authority is grounded in Article XIV, Sections 1 and 2, of the Statute, including the power to rescind decisions and prescribe measures to correct their effects, with monetary compensation limits generally not exceeding three hundred percent (300%) of the current or last annual Fund salary, except in exceptional cases. ### Remedy for non-conversion decision - The Tribunal rescinded the decision not to convert Applicant’s fixed-term appointment to open-ended status. - Reinstatement was considered unsuitable given the seniority of the position and the time elapsed since Applicant left the Fund; compensation in lieu of reinstatement was deemed appropriate. - The Tribunal set compensation at the equivalent of three times Applicant’s last annual salary from the Fund. ### Remedy for non-selection decision (intangible injury) - The Tribunal found Applicant was wrongfully denied fair consideration when HRD invoked the non-conversion decision after deeming Applicant eligible and after shortlisting and interview validated his candidacy. - Aggravating factors: the non-conversion decision itself was rescinded as an abuse of discretion and had career-ending consequences compounded by the unfair non-selection process. - To compensate for harm to Applicant’s legitimate expectation of a transparent and fair process, the Tribunal set compensation at a sum equivalent to Applicant’s last annual salary from the Fund. - The Tribunal noted the Fund had already granted Applicant eight months’ salary pursuant to the Grievance Committee’s recommendation; that award was calculated at Grade A13 salary rather than Applicant’s last annual Fund salary. - The Tribunal ordered payment of: - a sum equivalent to four months’ salary calculated on the basis of Applicant’s last annual salary from the Fund; and - the difference between (i) eight months’ salary at Grade A13 that Applicant has already been paid and (ii) eight months’ salary calculated on the basis of Applicant’s last annual salary from the Fund. ### Legal fees and costs - Applicant sought total legal fees and costs of $95,397.86, including $38,745.71 as unreimbursed fees related to Grievance Committee representation. - The Fund asserted the requested fees should be diminished for reasons including alleged excessiveness, lower Tribunal-phase effort, change of counsel, overstaffing, inclusion of time seeking Staff Association Committee funding, and alleged inappropriate personal attacks in pleadings. The Tribunal rejected these arguments. - The Tribunal has precedent of awarding fees for proceedings that must be exhausted prior to Tribunal consideration; given Applicant’s full success in Tribunal claims, the Tribunal awarded the full requested amount. - The Tribunal ordered payment by the Fund of $95,397.86 for legal fees and costs, including the unreimbursed portion from Grievance Committee proceedings. ### Final decision (orders) - The Administrative Tribunal of the International Monetary Fund unanimously decides: 1. The Fund’s decision not to convert Mr. “RR”’s fixed-term appointment to an open-ended appointment is rescinded. 2. The Fund’s decision not to select Mr. “RR” for a Grade A13/14 position in his department is sustained. 3. Applicant is entitled to compensation: - a. In lieu of reinstatement, monetary compensation in a sum equivalent to three times Mr. “RR”’s last annual salary from the Fund; and - b. For the failure of fair process in relation to non-selection, monetary compensation in a sum equivalent to four months’ salary calculated on the basis of his last annual salary from the Fund, plus the difference between eight months’ salary at Grade A13 that Applicant has already been paid and eight months’ salary calculated on the basis of Applicant’s last annual salary from the Fund. 4. The Fund shall pay Mr. “RR” $95,397.86, being the legal fees and costs incurred by Mr. “RR” in this case, including unreimbursed Grievance Committee fees. --- _Source: https://www.imf.org/-/media/files/imfat/j2021-2.pdf_