## j2022-1 ## Source details **Canonical URL:** [j2022-1](https://www.imf.org/-/media/files/imfat/j2022-1.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2022-1.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2022-1.pdf.json) --- ### Case overview and procedural history - Judgment No. 2022-1: “TT”, Applicant v. International Monetary Fund, Respondent. - Tribunal composition: Judge Edith Brown Weiss (acting as President), Judge Deborah Thomas-Felix, Judge Andrew K.C. Nyirenda. - Oral and electronic sessions held on: February 25 and 28, March 2, 4 and 7, April 6 and 26 and June 21, 2022. - Applicant’s counsel: Mr. Peter C. Hansen and Mr. J. Michael King. - Respondent’s counsel: Ms. Juliet Johnson and Mr. Andrew Giddings; oral appearances included Mr. Brian Patterson and Ms. Johnson. - Tribunal conducted by videoconference pursuant to Article XI (amended 2020) due to COVID-19. ### Principal contested actions and factual nexus - Applicant contested: - Decision to place him on administrative leave with pay. - Denial of access to his work unit and systems. - Timing and employment outcome: - Administrative-leave-with-pay period lasted 2.5 months and, combined with an equal period of annual leave, comprised 5 months culminating in Applicant’s retirement upon reaching mandatory retirement age. - Applicant alleged improper motivation by: - Retaliation, - Harassment, - Discrimination. - Applicant’s contention on procedure: - Administrative leave was taken without procedural protections associated with administrative leave pending investigation of misconduct. ### Grievance Committee and Fund management response - Grievance Committee conclusion: administrative-leave-with-pay decision was “. . . defective because it was the product of retaliatory motives”. - Grievance Committee recommendation: rescission of the decision and removal of any record thereof; denial of Applicant’s request for monetary relief. - Fund Management action: accepted the Grievance Committee’s recommendations and reimbursed partial attorneys’ fees. ### Applicant’s requested relief (selected items) - Rescission of a prior non-promotion decision. - Rescission of the administrative-leave-with-pay decision and deletion of related records and allegations. - Compensation for accrued leave required to be used prior to the administrative leave. - Compensation for intangible and moral damage: - Three years’ salary for “severe career, moral and intangible damage”. - An additional one year of salary as moral damages for defects in the Grievance Committee process. - Full attorneys’ fees and costs; legal fees and costs recoverable under Article XIV, Section 4 of the Statute if Application is well-founded. ### Respondent’s principal positions - Administrative-leave-with-pay decision was: - Reasonably considered, - Properly motivated, - Within managerial discretion under Staff Handbook, Ch. 5.01, Section 5.6. - Director of HRD had sufficient evidence that Applicant’s “continuing presence . . . at work may not be in the interest of the Fund” (Staff Handbook, Ch. 5.01, Section 5.6). - Applicant was given ample notice and opportunity to be heard. - OII Preliminary Inquiry closure provides “persuasive evidence that no retaliation occurred.” - Requests Tribunal address alleged lack of civility by Applicant’s counsel. ### Procedural timeline (selected dates) - August 5, 2020: Applicant filed Application with the Tribunal. - October 26, 2020: Respondent filed Answer. - November 30, 2020: Applicant submitted Reply; supplemented December 4, 2020. - January 6, 2021: Fund filed Rejoinder. - January 24, 2022: Tribunal denied Applicant’s request for production of Grievance Committee deliberative documents and granted anonymity requests. - March 2, 2022: Oral proceedings by videoconference. - June 30, 2022: Tribunal judgment (date of Judgment indicated at end of record). ### Document production and evidentiary posture - Applicant requested complete Grievance Committee materials; Tribunal denied request on January 24, 2022, finding the record before it (Statement of Grievance, transcripts, submissions, Reports and Recommendations) sufficient. - Tribunal declined to give evidentiary weight to OII’s decision closing the Preliminary Inquiry absent a “compelling reason”; the Tribunal “takes note of the existence of the report but does not give evidentiary weight to its content.” --- ### Factual background and key findings - Working relationship and incidents: - Applicant and another staff member at same grade competed for Head of Office; other staff member was promoted. - December 2017 staff survey revealed observations of “bullying” in the Office. - Key dates and incidents: - January 2, 2018: Applicant met HRD Director to discuss promotion, survey results, and policy; Applicant later emailed a proposal about combining unit expertise. - January 9, 2018: Head of Office reported Applicant’s “behavior unbecoming of a professional” after a travel cancellation request; Applicant apologized. - January 23, 2018: Meeting with SPM and HRD Deputy Director about incidents in cafeteria and library. - May 9, 2018: Head of Office reported Applicant “started to raise his voice and became agitated” with a junior staff member; Applicant apologized. - June FY2018 APR: Applicant rated “Effective”; APR admonished Applicant to “set higher professional conduct standards” relating to temper and interpersonal conduct. - June 21, 2018: Head of Office decided not to nominate Applicant for promotion; Applicant alleges reasons included “insubordination” for meeting HRD Director on January 2, 2018. - Channels pursued by Applicant: - June 28, 2018: Filed formal complaint with OII alleging retaliation. - July 1, 2018: Filed formal request for administrative review of non-promotion. - July 31, 2018: Filed administrative review of administrative-leave-with-pay decision. - November 16, 2018: Filed Statement of Grievance challenging administrative leave. - Key administrative actions and dates: - July 26, 2018: HRD informed Applicant that administrative leave with pay was being considered. - July 30 – October 15, 2018: Applicant in annual leave status. - October 16 – December 31, 2018: Administrative leave with pay. - December 31, 2018: Applicant separated upon reaching mandatory retirement age. - November 19, 2019 and February 28, 2020: Grievance Committee reports issued. --- ### Grievance Committee findings (selected) - Committee found administrative-leave-with-pay invocation of Ch. 5.01, Section 5.6 was not an abuse of discretion per se. - Committee rejected claims of impermissible harassment or age discrimination. - On retaliation, Committee found in favor of Applicant: - Identified protected activities: July 1, 2018 administrative-review request and July 17–18, 2018 raising of concerns. - Found timing and sequence allowed inference of improper motivation. - Found Fund did not rebut prima facie case of retaliation and did not investigate Applicant’s raised concerns. - Concluded complaint by Head of Office was plausibly based on personal animosity and HRD acted on that improper motivation. - Remedy recommended: - Rescind administrative-leave-with-pay decision and delete records. - Deny monetary relief. - Supplemental Report recommended partial reimbursement of attorneys’ fees. --- ### Legal analysis and Tribunal holdings regarding administrative leave - Legal standard for challenge: abuse of discretion defined as decision that is “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.” - Applicability of Sections 5.6 vs 5.3: - Tribunal held it was within Fund authority to invoke Section 5.6 (special and unusual situations). - Tribunal nonetheless required assessment whether discretion under Section 5.6 was properly exercised. - Procedural protections required when Section 5.6 is used on grounds that overlap alleged misconduct or risk of harm: - Section 5.6 “may be open to abuse”; when based on allegations that might constitute misconduct or on perceived risk of future harm, “procedural protections must be afforded akin to those required in cases of administrative leave with pay pending investigation of misconduct.” - Doctrine of audi alteram partem requires a “reasonable opportunity to be heard on the facts at issue and allegations against him or her, unless exceptional circumstances require otherwise.” - Staff must be apprised of how their continuing presence is alleged to be contrary to “the interest of the Fund.” - Tribunal findings of procedural deficiency in Applicant’s case: - No evidence Applicant was notified of the legal basis for the decision; Fund officials themselves were unclear which provision applied. - No impartial testing of Head of Office’s allegations; HRD adopted manager’s view without independent assessment. - No fair hearing by an impartial decision maker; HRD failed to afford notice of the legal authority and an opportunity to meaningfully be heard. - Implementation failures: access to Office systems and Office removed effective July 27, 2018 before written decision dated August 1, 2018; removal and loss of dignity were not mitigated. - Tribunal conclusion: Fund abused its discretion by failing to act in accordance with fair and reasonable procedures when placing Applicant on administrative leave with pay under Section 5.6; the decision must be rescinded. ### Tribunal findings on motive claims: retaliation, whistleblowing, and age discrimination - Retaliation: - Legal test requires showing: (i) protected activity; (ii) adverse action; (iii) causal link. - Tribunal found Applicant engaged in “protected activity” on January 2, 2018 and July 1, 2018. - Tribunal could not conclude on the existing record that Applicant established causal link proving retaliation; evidentiary record opaque and Fund failed to probe discord sources. - Tribunal declined to defer to OII’s Preliminary Inquiry closure absent compelling reason. - Whistleblowing: - Fund policy does not expressly use the term “whistleblowing” but protects staff who “speak up” or “raise ethical concerns” informally or formally. - Tribunal found insufficient evidentiary clarity to conclude that Applicant’s policy objections constituted protected whistleblowing that caused the challenged decision. - Age discrimination: - Applicant was five months short of mandatory retirement when placed on leave. - Tribunal concluded Applicant failed to substantiate that administrative leave was motivated by age discrimination. - Net result on improper motive claims: - Tribunal was unable to conclude the decision was tainted by retaliation, harassment, or age discrimination on the record. - Independent of motive claims, the decision was rescinded due to procedural failure. --- ### Remedies, awards, and costs - Rescission: - Tribunal rescinded the Fund’s decision to place “TT” on administrative leave with pay. - Compensation for intangible injury: - Tribunal found procedural breach and identified aggravating factors (stigma, humiliation, loss of dignity) and one mitigating factor (Applicant near mandatory retirement). - Award for intangible injury: $30,000. - Legal fees and costs: - Applicant sought total legal fees and costs of $47,572.91, of which $20,096.82 represented fees for Grievance Committee representation unreimbursed after partial reimbursement. - Tribunal applied proportionality: - 100 percent of legal fees and costs associated with the Reply and oral proceedings awarded. - 25 percent of fees and costs associated with preparation of the Application awarded. - 100 percent of legal fees and costs incurred in the Grievance Committee awarded, reduced by fees already reimbursed by the Fund. - Total award for legal fees and costs: $38,421.97 (approximately 80 percent of requested fees). - Overall dispositive outcomes (unanimous): - Rescinded administrative-leave-with-pay decision; Applicant prevailed on that claim. - Grievance Committee abuse-of-discretion complaint not sustained by the Tribunal. - Awards to Applicant: - $30,000 for intangible injury. - $38,421.97 for legal fees and costs. --- ### Tribunal expectations on conduct and process integrity - Anonymity and confidentiality: - Tribunal granted Applicant anonymity and acceded to non-identification of other individuals and the work unit where necessary for comprehensibility. - Oral proceedings: - Tribunal granted oral proceedings limited to counsel oral arguments; witness hearings were not warranted. - Civility and professionalism: - Tribunal emphasized standards requiring parties and counsel to act “honestly, candidly, fairly, courteously, in good faith and without regard to external pressures or extraneous considerations.” - Tribunal declined to deny attorneys’ fees solely on Respondent’s allegations of counsel incivility, reaffirming access to justice principles. - Institutional recommendation: - When Section 5.6 is invoked on grounds overlapping alleged misconduct or risk of harm, HRD must undertake an independent assessment, provide clear legal notice, and afford a fair opportunity to be heard; reasonable measures must be taken to mitigate stigma and humiliation associated with removal from workplace. *Source: International Monetary Fund Administrative Tribunal — JUDGMENT No. 2022-1 (j2022-1).* ### INTRODUCTION ........................................................................................................... ### INTRODUCTION ### Case overview and procedural history - Judgment No. 2022-1: “TT”, Applicant v. International Monetary Fund, Respondent. - Tribunal composition: Judge Edith Brown Weiss (acting as President for the case), Judge Deborah Thomas-Felix, Judge Andrew K.C. Nyirenda. - Oral and electronic sessions held on: February 25 and 28, March 2, 4 and 7, April 6 and 26 and June 21, 2022. - Applicant’s counsel: Mr. Peter C. Hansen and Mr. J. Michael King, Law Offices of Peter C. Hansen, LLC. - Respondent’s written-pleadings counsel: Ms. Juliet Johnson and Mr. Andrew Giddings, Senior Counsels, Administrative Law Unit, IMF Legal Department. Oral proceedings appearances included Mr. Brian Patterson, IMF Assistant General Counsel, and Ms. Johnson. - Tribunal session was conducted by videoconference pursuant to Article XI of the Statute (amended in 2020) due to COVID-19 pandemic constraints. ### Principal contested actions and factual nexus - Applicant contests: - Decision to place him on administrative leave with pay. - Denial of access to his work unit and systems. - Timing and employment outcome: - Administrative-leave-with-pay period lasted 2.5 months and, combined with an equal period of annual leave, comprised 5 months culminating in Applicant’s retirement upon reaching mandatory retirement age. - Applicant alleges the administrative-leave-with-pay decision was improperly motivated by: - Retaliation, - Harassment, - Discrimination. - Applicant further contends the administrative-leave-with-pay decision was taken without procedural protections associated with administrative leave pending an investigation of misconduct. ### Grievance Committee action and Fund management response - Grievance Committee conclusion: decision to place Applicant on administrative leave with pay was “. . . defective because it was the product of retaliatory motives”. - Grievance Committee recommendation: rescission of the challenged decision and removal of any record thereof; denial of Applicant’s request for monetary relief. - Fund Management action: accepted the Grievance Committee’s recommendations to rescind the impugned decision and to reimburse partial attorneys’ fees. ### Applicant’s requested relief - Rescission of a non-promotion decision preceding these events, and related relief. - Rescission of the administrative-leave-with-pay decision and removal from Applicant’s file of documentation of the administrative leave and of any allegations made against Applicant. - Compensation for accrued leave that Applicant was required to use prior to the administrative leave. - Compensation claims for intangible and moral damage: - Three years’ salary to compensate for “severe career, moral and intangible damage done to [Applicant] by the Fund’s wrongful actions, including . . . retaliatory harassment”. - An additional one year of salary as moral damages for the “defective Grievance Committee process and the Fund’s acceptance of, and active participation in, those defects”. - Other relief in connection with the Grievance Committee proceedings, including full attorneys’ fees. - Legal fees and costs, which the Tribunal may award in accordance with Article XIV, Section 4, of the Statute, if the Application is well-founded in whole or in part. ### Respondent’s position summary - Respondent asserts the administrative-leave-with-pay decision was: - Reasonably considered, - Properly motivated, - Within the discretion afforded by the applicable provision of the Fund’s internal law (Staff Handbook, Chapter 5.01, Section 5.6 cited). - Fund’s factual claim: Director of HRD had sufficient evidence to place Applicant on administrative leave with pay on the ground that his “continuing presence . . . at work may not be in the interest of the Fund” (Staff Handbook, Ch. 5.01, Section 5.6). - Fund’s procedural claim: Applicant was given ample notice and opportunity to be heard. - On the Grievance Committee challenges, Respondent contends those aspects fall outside the Tribunal’s jurisdiction. - Respondent requested the Tribunal address alleged lack of civility by Applicant’s counsel. ### PROCEDURE ### Filing and pleadings timeline - August 5, 2020: Applicant filed an Application with the Tribunal. - August 10, 2020: Application transmitted to Respondent. - August 21, 2020: Registrar circulated within the Fund a notice summarizing the issues raised in the Application (pursuant to Rule IV, para. (f)). - October 26, 2020: Respondent filed its Answer to the Application. - November 30, 2020: Applicant submitted his Reply; supplemented on December 4, 2020. - January 6, 2021: Fund filed its Rejoinder. - February 11, 2021: Applicant’s counsel submitted a communication to the Tribunal transmitted to the Fund. - Post-oral proceedings filings: - March 10, 2022: Applicant submitted his Supplementary Request for Costs. - March 18, 2022: Fund filed its Response. ### Applicant’s document production request (Rule XVII) - Applicant requested: “all Grievance Committee materials pertaining to [Applicant]’s case, including all drafts of any decisions, all deliberative materials (including emails), and any communications with either party.” - Applicant’s asserted reasons: - Such materials are probative to allegations and claims in the Application. - The Grievance Committee is a Fund office subject to Tribunal review where independence is reasonably put in question (citing GAO 11, Ch. 11.03, Section 5.4 and Section 5.19). - Fund’s objections: - The Grievance Committee’s deliberations and drafts are “irrelevant to the issues of the case” under Rule XVII(2) because the Tribunal’s Statute and jurisprudence limit Tribunal review of the Committee’s Recommendation and its processes. - Production would interfere with the Grievance Committee’s deliberative process and “completely undermine [the Committee’s] ability to perform their critically important function in the Fund’s dispute resolution system.” ### Tribunal decision on document production - Tribunal’s assessment: - The request related to Applicant’s secondary claim that the Grievance Committee proceedings constitute a separate injury. - Applicant did not explain how the requested documents would substantiate his allegations focused on the Committee’s findings, reasoning, case citations, and recommended relief. - The Tribunal had the record of the Grievance Committee proceedings: Statement of Grievance, pre-hearing and hearing transcripts, multiple post-hearing submissions, and the Committee’s Reports and Recommendations. - Decision: Applicant’s request for production of documents was denied on January 24, 2022. ### Role of the Office of Internal Investigations (OII) report in Tribunal proceedings - Fund included an OII decision closing a Preliminary Inquiry into a retaliation complaint brought by Applicant, asserting the OII decision provides “persuasive evidence that no retaliation occurred.” - Applicant’s objection: - Tribunal should not give deference to OII’s decision to close the Preliminary Inquiry. - Inclusion of OII decision in the record improperly mixes the Fund’s disciplinary process with the Tribunal’s review of administrative acts; Applicant claims OII dismissed a complaint against a decision that OII had earlier “pre-approved” for HRD. - Tribunal’s precedent and approach: - Tribunal has recognized a distinction between disposition of misconduct complaints by Fund organs and the Tribunal’s review of administrative acts (Article II). - Prior Tribunal statement: “Accordingly, in the absence of a compelling reason, the Tribunal will not ordinarily have a basis for taking account of the findings of Ethics investigations.” Ms. “GG” (No. 2), IMFAT Judgment No. 2015-3 (December 29, 2015), para. 68. - Tribunal explained limits on weight given to Ethics Office findings based on: (i) Tribunal’s duty to assess claims independently; (ii) confidential nature of investigatory process; (iii) requirement that, as a judicial body, the Tribunal is to draw its own conclusions. *Administrative Tribunal of the International Monetary Fund — JUDGMENT No. 2022-1, “TT”, Applicant v. International Monetary Fund, Respondent* ### conclusions based on evidence tested through an adversary process. ### j2022-1 - conclusions based on evidence tested through an adversary process ### Evidentiary weight of Ethics and OII findings - Para. 69: "Staff members must feel free to pursue all channels of recourse... Given the distinct purposes of these channels, and the differences among their fact-finding methods and standards of proof, the Tribunal concludes that it would not be appropriate to give weight to the findings made by the Ethics Office in response to Applicant’s complaints." - Tribunal conclusion in this case: - "In this case, the Tribunal finds no “compelling reason” to take account of OII’s decision to close the Preliminary Inquiry into Applicant’s retaliation claim." - The Tribunal "rejects the Fund’s request to consider the OII determination as probative of whether the administrative-leave-with-pay decision was improperly motivated by retaliation." - The Tribunal "takes note of the existence of the report but does not give evidentiary weight to its content." ### Anonymity requests and practice - Procedural basis: - Applicant requested anonymity pursuant to Rule XXII(1) on grounds including: "(i) allegations of misconduct against the Applicant; (ii) alleged retaliation against the Applicant; (iii) whistleblowing by the Applicant." - Respondent requested anonymity for two Fund officials under Rule XXII(2) and requested non-identification of Applicant’s work unit. - Rule XXII(4) permits anonymity where "good cause" is shown; Tribunal treats anonymity as an exception to the ordinary public-names rule. - Jurisprudence cited: - Tribunal has recognized shielding identities as a "core ground for granting anonymity" where disputes concern "alleged misconduct . . .", citing IMFAT Judgment No. 2021-1 and IMFAT Judgment No. 2016-2. - The Tribunal's usual practice is not to identify by name other individuals and not to identify departments and divisions except where necessary for comprehensibility. - Tribunal decisions in this case: - The Tribunal "granted Applicant’s request for anonymity." - The Tribunal acceded to Respondent’s request not to identify other persons and to refrain from identifying the work unit by name. - On January 24, 2022, the Tribunal notified the parties that anonymity requests had been granted. ### Oral proceedings: scope and decision - Requests and positions: - Applicant requested oral proceedings "to permit further argument by counsel, and to address any other issues or evidentiary gaps that the Tribunal or the parties may identify in the course of this case." - Fund responded it "sees no reason whatsoever for an oral hearing" and called Applicant’s request "perfunctory." - Legal standard: - Article XII of the Tribunal’s Statute: Tribunal shall "… decide in each case whether oral proceedings are warranted." - Rule XIII(1): "Oral proceedings shall be held if, on its own initiative or at the request of a party... the Tribunal deems such proceedings useful." - The Tribunal recalled that the 2004 revision changed the standard from "necessary" to "useful" to make oral proceedings more likely for addressing questions of law and probing disputes of fact. - Tribunal's application to the case: - Applicant did not identify "evidentiary gaps" or propose witnesses; request was unclear whether limited to counsel oral arguments. - Tribunal limited its consideration to a request for oral arguments of counsel and found no cause for witness hearings. - On January 24, 2022, the Tribunal granted Applicant’s request for oral proceedings limited to oral arguments of counsel, to be held "by electronic means" and "in private." - Oral proceedings were held by videoconference on March 2, 2022. ### Factual background and key factual findings - Evidence and approach: - Tribunal draws upon the totality of the evidence: the documentary record before it and testimonial evidence elicited in the Grievance Committee proceedings. - Tribunal may weigh the Grievance Committee record “as an element of the evidence,” but examines issues de novo and is "not bound by the reasoning or recommendation of the Grievance Committee." - Summary of key facts (some disputed): - Applicant and another staff member were colleagues at the same grade level in the same unit (the "Office"); both competed for Head of Office and the other staff member was selected and appointed to the next higher grade. - December 2017 staff survey revealed a significant proportion of respondents had observed "bullying" within the Office. - Applicant met the HRD Director on January 2, 2018 to discuss promotion, the survey results, and a policy issue; Applicant later emailed the HRD Director proposing combining expertise of two units "in the long term interest of the institution." - Applicant asserts the January 2, 2018 conversation was to be confidential; Applicant alleges the HRD Deputy Director disclosed elements of the exchange to the Head of Office, which Applicant submits set off adverse repercussions. - Applicant pursued survey-related concerns with the Senior Personnel Manager (SPM) and, on January 8, 2018, complained to the HRD Director that the SPM was not objective in analyzing Office issues. - Incidents and management responses: - January 9, 2018: Head of Office reported "behavior unbecoming of a professional" by Applicant after asking Applicant to cancel business travel; described conduct including "raising his voice," "yelling and pointing his finger," and labeled Applicant a "risk to the proper functioning of the Office." Applicant later apologized. - January 23, 2018: SPM and HRD Deputy Director met with Applicant about January 9 incident and two late-2017 incidents reported by DMD/CAO concerning conduct in the cafeteria and library; HRD Deputy Director testified warning Applicant to "keep the lid on for the remainder of your period." - May 9, 2018: Head of Office reported an incident with a junior staff member in which Applicant allegedly "started to raise his voice and became agitated in an intimidating way," called the junior staff member a "liar," and suggested the staff member had "amnesia"; Applicant testified he agreed the behavior was not good and apologized. - Follow-up meetings: SPM and HRD Deputy Director told Applicant "all these instances were piling up" and other incidents would not be accepted. - Performance review and aftermath: - June FY2018 APR: Applicant rated "Effective" with positive comments on managing analytical and technical work, sharing technical knowledge, and mentoring; APR admonished Applicant to "set higher professional conduct standards with respect to controlling his temper and managing his interpersonal conduct to foster mutual respect and professionalism." - June 21, 2018 APR discussion: Head of Office decided not to nominate Applicant for promotion to the next grade; Applicant alleges the Head of Office cited "insubordination" for meeting HRD Director in January. - July 27, 2018: Following the administrative-leave-with-pay decision, Applicant commented on the APR form asserting non-promotion due to "insubordination" and "harassment" charges, claiming confidentiality breaches by HR staff and stating he would file formal complaints and administrative review. - Channels of recourse pursued by Applicant: - Week following APR discussion: Applicant sought recourse via informal communications to the HRD Director (June 28-29); filed a formal complaint of retaliation with OII (June 28); and filed a formal request for administrative review (July 1) of the non-promotion decision. - June 28, 2018 communication to HRD Director alleged a "serious breach of confidentiality" by HRD staff revealing the January 2, 2018 meeting; Applicant stated the "APR discussion points to retaliation" and indicated intent to file administrative review. - June 29, 2018 exchange with HRD Director: Applicant complained survey results "were never discussed in the office as a whole," described survey as "a cry for help from the office about the poor leadership," and requested "a professional external review of this" to help the office and institution. *International Monetary Fund Administrative Tribunal judgment (j2022-1).* ### 48. On June 28, 2018, Applicant also filed a formal complaint with OII, alleging retaliation ### j2022-1 - 48. On June 28, 2018, Applicant also filed a formal complaint with OII, alleging retaliation ### Timeline of key actions and personnel decisions - June 28, 2018: Applicant filed a formal complaint with OII alleging retaliation by the Head of Office and the HRD Deputy Director. OII opened a Preliminary Inquiry and later found no credible basis to suggest Fund staff had engaged in retaliatory misconduct. - July 1, 2018: Applicant filed a formal request for administrative review of the Head of Office’s decision not to nominate him for promotion to the next grade. - July 17–18, 2018: Applicant raised concerns in an internal Office discussion and followed up by email the next day, relating to practices of the Head of Office that Applicant considered to contravene governing rules. - July 20, 2018: Head of Office emailed the HRD Deputy Director describing Applicant’s conduct and expressing safety and operational concerns; Head of Office planned to inform the Fund’s Ethics Advisor and the DMD/CAO. - July 26, 2018: HRD Deputy Director informed Applicant in a meeting that HRD was considering placing him on administrative leave with pay to ensure safety of Applicant and Office staff. - July 27, 2018: Applicant informed HRD Deputy Director by email that he had conducted himself professionally and noted resumed responsibilities; Applicant removed personal possessions the day after the July 26 meeting. - July 31, 2018: Applicant filed a formal request for administrative review of the administrative-leave-with-pay decision. - August 1, 2018: HRD Deputy Director provided Applicant a letter outlining terms: authorized annual leave between July 30 and October 15, 2018; administrative leave with pay from October 16 – December 31, 2018; access to Office systems removed effective July 27; return of Fund equipment required before administrative leave; and continuation of Fund rules and benefits during leave. - July 30 – October 15, 2018: Applicant was in annual leave status. - October 16 – December 31, 2018: Applicant was on administrative leave with pay. - December 31, 2018: Applicant separated from the Fund upon reaching mandatory retirement age. - November 16, 2018: Applicant filed his Statement of Grievance challenging the administrative-leave-with-pay decision. - November 19, 2019: Grievance Committee issued Report and Recommendation. - February 28, 2020: Grievance Committee issued a Supplemental Report and Recommendation. ### Administrative review findings (HRD Director) - Non-promotion decision: - Principal factor identified: “[Applicant’s] conduct towards [the Head of Office] on January 8, 2018,” including shouting and pointing a finger in an offensive and intimidating manner, witnessed by the Head of Office’s administrative assistant. - HRD review referenced additional concerns in May 2018 that Applicant had “shouted at and used offensive language . . . towards a junior staff member,” reluctance of others to raise issues due to Applicant’s “temper,” and incidents in the Fund’s library and cafeteria where others perceived Applicant’s manner as offensive and intimidating. - HRD Director concluded it was reasonable for the Head of Office not to nominate Applicant for promotion due to the January 2018 conduct and several other behavioral concerns. - HRD Director found no evidence that the non-promotion decision was based on Applicant’s July 17–18, 2018, internal complaints or on Applicant’s raising promotion questions with HRD on January 2, 2018. - Administrative-leave-with-pay decision: - HRD Director cited the Head of Office’s July 20 email reporting that Applicant “uncharacteristically refused to acknowledge him and appeared angry such that he did not feel secure when he was in the office and you were the only other person present,” and reported incidents of Applicant shouting at staff. - HRD Deputy Director considered administrative leave with pay an appropriate way to safeguard the work environment prior to Applicant’s retirement, noting it “does not lead to financial or career damage and is understood by others simply to be the use of annual leave.” - HRD Deputy Director consulted with “DRS Officers” about retaliation concerns; they agreed the Head of Office’s concerns were a reasonable basis for the decision. - HRD Director concluded the administrative-leave-with-pay decision was a “reasonable response to the concerns expressed by [the Head of Office] about the office environment, against the background of the several concerns raised about [Applicant’s] workplace conduct during 2018.” - HRD Director found no evidence that HRD acted to retaliate for Applicant’s protected activities or that the Head of Office had been informed of confidential feedback prior to the July 26 decision. ### Grievance Committee findings, conclusions, and remedy - Procedural posture: - Applicant represented himself at the Grievance Committee hearing; the Fund presented witnesses: the HRD Deputy Director and the SPM. - Committee conclusions: - The Grievance Committee concluded the Fund’s invocation of Staff Handbook, Ch. 5.01, Section 5.6, to place Applicant on administrative leave with pay was not, of itself, an abuse of discretion. - The administrative-leave-with-pay decision did not constitute impermissible harassment or age discrimination, in the Committee’s view. - On retaliation, the Grievance Committee found in favor of Applicant: - Identified protected activities: Applicant’s July 1, 2018 request for administrative review of the non-promotion decision, and Applicant’s July 17–18, 2018 raising of concerns about the Head of Office’s practices. - Noted the proximity of the Head of Office’s July 20 email and the HRD July 26 administrative-leave-with-pay decision and held that “This sequence of events presents a basis for inferring improper motivation.” - Found the Fund did not counter the prima facie case of retaliation with evidence of legitimate motives. - Observed that neither the SPM nor the HRD Deputy Director had closely questioned the Head of Office for detailed explanations of his July 20 accusations. - Found no evidence the Fund investigated the concerns Applicant had raised about Office practices. - On personal animosity, the Committee found: “A fair inference can be drawn from the record that [the Head of Office’s] complaint was based on non-business considerations (i.e., personal animosity) and that [the HRD Deputy Director] acted upon that improper motivation.” - Remedy recommended by the Grievance Committee: - Rescission of the administrative-leave-with-pay decision. - Deletion of any record thereof. - Denial of Applicant’s request for monetary relief on the basis that Applicant had not proven any tangible or intangible injury resulting from the administrative-leave-with-pay decision. - February 28, 2020 Supplemental Report recommended reimbursement of a portion of Applicant’s attorneys’ fees and denied Applicant’s request for reconsideration of the recommended remedy. ### Key statements of intent and rationale recorded in HRD communications - HRD Deputy Director’s stated rationale for leave: create an environment in which Applicant is safe and Office staff are safe; act to ensure safety. - HRD decision letter operative terms (August 1, 2018 communication summarizing July 26 discussions): - i. Authorized use of annual leave, including advance annual leave, between July 30 and October 15, 2018; upon retirement, Applicant eligible to receive payment for the unused accrued 60 days of annual leave. - ii. On October 16, 2018, Applicant to be placed on Administrative Leave With Pay until December 31, 2018, the day Applicant reaches mandatory retirement age. - iii. Access to the [Office’s] systems and [to the Office] removed effective July 27; Fund network and building access remain active in the normal way. - iv. All Fund equipment (i.e. laptop, IPad, mobile phone) must be returned no later than the day before administrative leave period. - v. Applicant remains employed by the Fund during annual leave and administrative leave and is subject to the Fund’s rules and policies; benefits accrue in the normal way. - vi. Applicant must resign earlier to accept alternative employment before December 31, 2018; Fund salary and benefits end on the effective date of resignation. *Source: International Monetary Fund (j2022-1).* ### 78. On May 5, 2020, Fund Management notified Applicant that it had accepted the Grievance ### j2022-1 - 78. On May 5, 2020, Fund Management notified Applicant that it had accepted the Grievance ### Procedural history and filings - On May 5, 2020, Fund Management notified Applicant that it had accepted the Grievance Committee’s recommendations as set out in both its Recommendation and Supplemental Recommendation. - On August 5, 2020, Applicant filed his Application with the Tribunal. ### Applicant’s principal contentions (summary of Application and Reply) - The principal arguments presented by Applicant are summarized as follows: 1. The Fund’s rule providing for administrative leave with pay “pending investigation of misconduct” (Staff Handbook, Ch. 5.01, Section 5.3) exclusively governed in the circumstances of Applicant’s case, in which the Head of Office perceived Applicant as a threat. The decision was taken as a disciplinary and security measure. Applicant should have been afforded the procedural protections contemplated by Section 5.3, including the opportunity to clear his name. 2. The Fund has not substantiated a basis for placing Applicant on administrative leave with pay for “special and unusual situations,” in which the “continuing presence of a staff member at work may not be in the interest of the Fund” (Section 5.6). 3. The decision to place Applicant on administrative leave with pay was improperly motivated by retaliation and harassment. Applicant engaged in a series of protected activities, including “whistleblowing,” which triggered the administrative-leave-with-pay decision. 4. The decision to place Applicant on administrative leave with pay was a de facto termination of employment and was improperly motivated by age discrimination. 5. Applicant was removed from the Office in a humiliating manner, following the administrative-leave-with-pay decision. 6. The Tribunal should not give any deference to OII’s decision to close its Preliminary Inquiry into a complaint of retaliation brought by Applicant. The Fund has improperly included that decision in the record of the case, contrary to the Tribunal’s past rulings concerning the division between the disciplinary process and challenges to administrative acts before the Tribunal. The decision also demonstrates that OII proceeded to dismiss a complaint against a decision (the administrative-leave-with-pay decision in Applicant’s case) that OII had earlier “pre-approved” for HRD. 7. The Grievance Committee proceedings constituted a separate injury to Applicant. Those proceedings diverged from due process and were affected by bias. The Grievance Committee acted inconsistently with Tribunal precedents in its approach to compensation for intangible injury. 8. Applicant’s counsel opposes Respondent’s request for the Tribunal to deny Applicant’s request for attorneys’ fees or to take other action in response to the counsel’s alleged lack of civility in his advocacy before the Tribunal. 9. Applicant seeks as relief: - rescission of a non-promotion decision preceding these events, and related relief; - rescission of the administrative-leave-with-pay decision and removal from Applicant’s file of documentation of the administrative leave and of any allegations made against Applicant; - compensation for accrued leave that Applicant was required to use prior to the administrative leave; - three years’ salary to compensate for “severe career, moral and intangible damage done to [Applicant] by the Fund’s wrongful actions, including . . . retaliatory harassment”; - an additional one year of salary as moral damages for the separate intangible injury by the “defective Grievance Committee process and the Fund’s acceptance of, and active participation in, those defects”; - other relief in connection with the Grievance Committee proceedings, including full attorneys’ fees; and - legal fees and costs, which the Tribunal may award, in accordance with Article XIV, Section 4 of the Statute, if it concludes that the Application is well-founded in whole or in part. ### Respondent’s principal contentions (summary of Answer and Rejoinder) - The principal arguments presented by Respondent are summarized as follows: 1. The Fund’s decision to place Applicant on administrative leave with pay for “special and unusual situations” (Staff Handbook, Ch. 5.01, Section 5.6), in which the “continuing presence of a staff member at work may not be in the interest of the Fund,” was a reasonable exercise of managerial discretion, which provided a pragmatic response to an untenable situation in the leadership of the work unit. The Fund had a sufficient quantum of evidence to support its decision. 2. The Fund provided Applicant ample notice and opportunity to be heard before taking the decision to place him on administrative leave with pay for special and unusual situations. 3. The Fund was not required to place Applicant on administrative leave with pay “pending investigation of misconduct” (Section 5.3) in the circumstances of the case. Fund Management has discretion to decide not to investigate allegations of misconduct. 4. Applicant has not shown that the administrative-leave-with-pay decision was based on retaliation or any other improper motive. Applicant’s allegations of retaliation fail either because he has not shown protected activity in terms of the law governing retaliation or has not shown a causal link between a protected activity and the adverse action of which he complains. 5. Applicant was not “terminated” by the Fund, and he has made no showing that the decision to place him on administrative leave with pay was motivated by discriminatory animus based on his age. 6. Applicant suffered no compensable injury as a result of the administrative-leave-with-pay decision, including in relation to the implementation of the decision to deny him access to his work unit and systems. 7. The Fund has properly included in the record of the case the OII decision closing the Preliminary Inquiry into a complaint of retaliation brought by Applicant. That decision provides “persuasive evidence that no retaliation occurred.” 8. Neither the recommendations of the Grievance Committee or its internal processes are subject to the Tribunal’s review, as these do not constitute “administrative acts” falling within the Tribunal’s jurisdiction under its Statute. 9. Applicant should not be awarded attorneys’ fees regardless of the outcome of the case. The lack of civility of Applicant’s counsel in presenting his case must be addressed by the Tribunal. ### Relevant provisions of the Fund’s internal law (excerpts reproduced for reference) - Note: The Tribunal’s practice is to reproduce the relevant provisions of the Fund’s internal law that governed the issues of the case. The reproduced provisions are not necessarily those in force as of the time of the Judgment. A. Administrative Leave with Pay (Staff Handbook, Ch. 5.01, Section 5) (July 2018 version) - Section 5: Administrative Leave with Pay - 5.1 Entitlements and Benefits. The Fund may place a staff member on administrative leave with pay in the circumstances set out in this Section. During any period of administrative leave with pay, staff members shall be entitled to all benefits to which they are otherwise entitled. - 5.2 Authority to Place Staff on Administrative Leave. The Managing Director may authorize administrative leave with pay for as many staff members as necessary if a Business Continuity Plan is implemented under subparagraph 5.6.2 or for a staff member who is subject to N-Rules and is under investigation for misconduct, as provided under paragraph 5.3. All other decisions to place staff members on administrative leave with pay will be taken by the Director of HRD and, in the case of staff who are under investigation for misconduct under paragraph 5.3, after consultation with the staff member’s Department Head. - 5.3 Administrative Leave with Pay Pending Investigation of Misconduct. When a staff member is alleged to have engaged in conduct for which any of the disciplinary measures referred to in “Chapter 11.02: Misconduct and Disciplinary Procedures” might be imposed, he or she may be placed on administrative leave with pay while the matter is under investigation, in accordance with the provisions of “Interim Measures”. Any such period shall not extend beyond the date on which the staff member is notified of the decision in the matter. - 5.3.1 Finding of No Misconduct. If the Managing Director or the Director of HRD as applicable, determines that there are no grounds for a finding of misconduct, a staff member on administrative leave with pay pending investigation of misconduct will be returned to active status. - 5.6 Administrative Leave with Pay for Special and Unusual Situations. Administrative leave with pay may be granted in special and unusual situations that include, but are not limited to, the evacuation of resident representatives or where, in the view of the Director of HRD, the continuing presence of a staff member at work may not be in the interest of the Fund. A resident representative who has been evacuated will not be eligible for administrative leave if he or she is assigned to duty in another location. - 5.6.1 Business Continuity Plan. The Managing Director may grant administrative leave with pay to as many staff as necessary in a situation where a Business Continuity Plan is implemented and non-essential staff are not required to report for duty. - 5.6.2 Time Limit. The period of administrative leave with pay for special and unusual circumstances may not exceed six months per triggering event. B. Disciplinary Procedures (Staff Handbook, Ch. 11.02) (July 2018 version) - Section 3: Authority and Procedure for Initiating Investigations into Alleged Misconduct - 3.1 Authority of the Managing Director and Director of HRD. The Managing Director (for staff members at Grades B1-B5) or the Director of HRD (for all other staff members) may initiate investigations into allegations of misconduct. - 3.4 Procedure for Initiating Investigations. Investigations shall be initiated through referral of the matter in writing to the Fund’s Internal Investigator, to OIA, to another Fund official or to an outside party as investigating officer. The referral shall set out the nature of the allegations and the scope of the investigation to be conducted. Investigations initiated by a Department Head in accordance with paragraph 3.2 above may only be referred to and conducted by another official in the same department. A material change in the scope of the investigation must be authorized by the official who initiated the investigation. - 3.5 Basis for Investigation. Before an investigation is initiated, a preliminary inquiry will normally be conducted to establish whether there is sufficient credible information to warrant an investigation of the alleged misconduct. - Section 7: Decisions on Disciplinary Action - 7.1 Responsible Official. For purposes of this Section, the term “responsible official” means the Managing Director, Director of HRD, Department Head or other Fund official to whom authority has been delegated pursuant to this Chapter. - 7.2 Transmission of the Report of Investigation and Response of the Staff Member. At the conclusion of an investigation into alleged misconduct, and before making a decision on any disciplinary action, the responsible official shall give the respondent a copy of the Report of Investigation for review and comments. Respondents shall be given reasonable opportunity to present any comments they may have on the Report of Investigation and the allegations made against them. In any personal appearance, respondents may be accompanied by an advisor of their choice, including an attorney, from either inside or outside the Fund. - 7.3 Further Inquiry. If the staff member’s response raises issues that, in the responsible official’s opinion, were not fully addressed or resolved in the Report of Investigation, the responsible official may request that further inquiry into the matter be conducted before deciding whether or not the staff member has committed misconduct and deciding on an appropriate disciplinary action. - 7.4 Decision. On the basis of the Report of Investigation, the staff member’s response, and any additional information obtained as the result of any further inquiry as referred to in paragraph 5.3 above, the responsible official shall determine whether the allegations are well founded and whether the staff member’s conduct constitutes misconduct. - 7.4.1 Finding of Misconduct. If the responsible official finds that misconduct occurred, he or she shall notify the staff member in writing of his or her conclusions and the reasons therefor, and of the disciplinary measure(s) to be imposed. Where applicable, the Director of HRD or Managing Director shall determine the amount and/or duration of disciplinary measures and the conditions, if any, to be met for their discontinuance. - 7.4.2 No Finding of Misconduct. If the responsible official concludes that no misconduct has occurred, he or she shall inform the staff member who was the subject of the investigation that the staff member’s actions did not constitute misconduct and that the matter is closed. - 7.5 Interim Measures. Pending the completion of an investigation and a decision on the matter, and where the responsible official finds reasonable cause for such action: - (i) the staff member may be relieved of specific duties or temporarily reassigned by the Department Head or Director of HRD; or - (ii) the staff member may be placed on administrative leave with pay by the Director of HRD in accordance with "Administrative Leave with Pay", provided that, in respect of staff members in Grades B1-B5 who are subject to Rule N-12, such measures shall be imposed by the Managing Director. - (iii) the payment of benefits or allowances may be suspended or postponed. - 7.6 Opportunity to be Heard on Interim Measures. Before imposing any of the above interim measures, the responsible official shall give the staff member a reasonable opportunity to be heard on the facts at issue and allegations against him or her, unless exceptional circumstances require otherwise. - 7.7 Disciplinary Measures During Period of Review. In cases where a staff member requests review of a decision to impose disciplinary measures as provided in "Chapter 11.03: Dispute Resolution", the disciplinary measures shall remain in force and shall not be suspended during the period in which the review is conducted, unless the Director of HRD or Managing Director, as appropriate, decides that a suspension of the measures pending review is warranted by exceptional circumstances in a specific case. C. Retaliation (Staff Handbook, Ch. 11.03, Section 8; Ch. 11.01, Section 11; Annex 11.01.6) (July 2018 version) - Staff Handbook, Ch. 11.03, Section 8: Protection Against Reprisal - 8.1 Protection of Staff Members. No individual shall be subject to adverse action of any kind because of pursuing the channels of dispute resolution set out in this Chapter or for assisting another staff member in pursuing those channels. - 8.2 Consequences of Retaliation. Any adverse action taken against an individual in retaliation for his or her pursuit of, or participation in, a dispute resolution procedure established by the Fund may be grounds for a finding of misconduct and the imposition of disciplinary measures under "Chapter 11.02: Misconduct and Disciplinary Procedures". - Staff Handbook, Ch. 11.01, Section 11: Retaliation and Participation in Fund Processes - 11.1 Prohibition of Retaliation. As set out in the Annex 11.01.6: Retaliation Policy, any retaliation against a staff member for either raising an ethics complaint in good faith or filing a grievance, or for participating in either type of proceeding as a witness, shall constitute misconduct, and any adverse decision motivated by retaliation shall be invalid. - 11.2 Duty of Cooperation. Staff are expected to cooperate with the Fund’s processes for resolving allegations of misconduct or unethical behavior, and they are also expected to participate, when requested, as witnesses in dispute resolution matters. - 11.3 Reporting Misconduct. Staff are strongly encouraged to make reports in good faith of suspected misconduct or unethical behavior, including through the Integrity Hotline (Annex 11.01.7: Integrity Hotline Program). However, failure to report suspected misconduct is not itself a separate act of misconduct. - 11.4 Duty of Managers. Managers have a duty to act upon, resolve, and/or report ethical concerns that come to their attention. - 11.5 Allegations in Bad Faith. Malicious and unsubstantiated allegations of misconduct may constitute separate acts of misconduct. - Staff Handbook, Ch. 11.01, Annex 11.01.6: Retaliation Policy (GAO 11 – Annex 11.01.6) - The Fund encourages employees to use the channels available for speaking up, reporting suspected misconduct, raising ethical concerns, and participating in formal and informal dispute resolution. Staff and managers should be aware that the Fund does not tolerate any form of retaliation against anyone for using any of these channels, or for participating as a witness in an ethics investigation or grievance. Thus, if there were retaliation against a staff member for either raising an ethics complaint or a grievance, or for participating in either type of proceeding as a witness, the retaliation itself would be a form of misconduct which could result in disciplinary action, and any adverse decision motivated by retaliation would be invalid. - Guidance Points: - Managers are expected to create an atmosphere where staff will feel free to use existing channels for workplace conflict resolution without fear of reprisal. These channels include managers, ASPMs, SPMs, Department Heads, HRD, the Ombudsperson, the Ethics Advisor, the Integrity Hotline and the formal dispute resolution system (Grievance Committee and Administrative Tribunal). - Staff are expected to cooperate with the Fund's processes for resolving allegations of misconduct or unethical behavior, and they are also expected to participate, when requested, as witnesses in dispute resolution matters. - Staff are strongly encouraged to make reports in good faith of suspected misconduct or unethical behavior, including through the Integrity Hotline (Annex 11.01.7). However, failure to report suspected misconduct is not itself a separate act of misconduct. - Managers have a duty to act upon, resolve, and/or report ethical concerns that come to their attention. - Malicious and unsubstantiated allegations of misconduct are viewed as separate acts of misconduct. *Excerpt from IMF Administrative Tribunal document j2022-1.* ### 92. Relevant provisions of the Fund’s internal law prohibiting harassment and discrimination ### 92. Relevant provisions of the Fund’s internal law prohibiting harassment and discrimination ### Staff Handbook: Harassment (Ch. 11.01, Section 4) (July 2018 version) - Section 4: Harassment - 4.1 Behavior towards Colleagues: Staff members are expected to treat one another, whether supervisors, peers, or subordinates, with courtesy and respect, without harassment or physical or verbal abuse. They should at all times avoid behavior at the workplace that may create an atmosphere of hostility or intimidation. Moreover, in view of the international character of the Fund and the value that the Fund attaches to diversity, employees are expected to act with tolerance, sensitivity, respect, and impartiality toward other persons' cultures and backgrounds. - 4.2 Prohibition of Harassment: Employees of the Fund should not be subjected to harassment in carrying out their work at Headquarters, on mission [footnote omitted] or in any Fund duty station. To ensure a harassment-free workplace for all Fund employees, staff members must comply with all applicable policies concerning harassment, including sexual harassment (Annex 11.01.2: Harassment Policy) and the Mission Code of Conduct. ### Staff Handbook: Discrimination and Reasonable Accommodation (Ch. 11.01, Section 5) (July 2018 version) - Section 5: Discrimination and Reasonable Accommodation - 5.1 Prohibition of Discrimination: Subject to the Fund’s institutional needs, including the paramount importance of securing the highest standards of efficiency and technical competence, the employment, classification, promotion and assignment of staff members shall be made without discriminating against any person because of age, creed, disability, ethnicity, gender, nationality, race or sexual orientation. - 5.2 Staff Members’ Responsibility: Staff members share responsibility for contributing to a working environment that promotes equal treatment and is free from discrimination. To this end, they must comply with all applicable policies concerning discrimination (Annex 11.01.3: Discrimination Policy), including the supplementary policy statement (2000) on discrimination against persons with HIV/AIDS. ### Cross-references within the Staff Handbook - Staff Handbook, Ch. 5.01, Section 5 (Administrative Leave with Pay) includes: - Section 5.3 Administrative Leave with Pay Pending Investigation of Misconduct. - Section 5.4 Pending determination on medical separation. - Section 5.5 For special family emergency. - Section 5.6 Administrative Leave with Pay for Special and Unusual Situations. - Section 5.7 In connection with external assignments, external swaps and reimbursed secondments. - Staff Handbook, Ch. 11.02, Section 7.5 (Interim Measures) authorizes interim measures, including placement on administrative leave with pay “[p]ending the completion of an investigation and a decision on the matter, and where the responsible official finds reasonable cause for such action.” ### Text of key leave provisions (as stated) - Section 5.3 Administrative Leave with Pay Pending Investigation of Misconduct: - “When a staff member is alleged to have engaged in conduct for which any of the disciplinary measures referred to in ‘Chapter 11.02: Misconduct and Disciplinary Procedures’ might be imposed, he or she may be placed on administrative leave with pay while the matter is under investigation, in accordance with the provisions of ‘Interim Measures’. Any such period shall not extend beyond the date on which the staff member is notified of the decision in the matter.” - Section 5.6 Administrative Leave with Pay for Special and Unusual Situations: - “Administrative leave with pay may be granted in special and unusual situations that include, but are not limited to, the evacuation of resident representatives or where, in the view of the Director of HRD, the continuing presence of a staff member at work may not be in the interest of the Fund. A resident representative who has been evacuated will not be eligible for administrative leave if he or she is assigned to duty in another location.” --- ### Consideration of the issues by the Tribunal ### Principal issues presented to the Tribunal - A. Did the Fund abuse its discretion in placing Applicant on administrative leave with pay? - B. Did the Fund abuse its discretion in the treatment of Applicant’s case by the Grievance Committee? - C. How shall the Tribunal address Respondent’s allegations of lack of civility on the part of Applicant’s counsel in his presentation of the case? ### Composite nature of the contested decision (as communicated August 1, 2018) - The impugned decision comprised three essential elements: - Applicant was to take an initial 2.5-month period of accrued annual leave. - He would thereafter be placed on a 2.5-month period of administrative leave with pay until reaching his mandatory retirement date. - During the entire period (July 30 - December 31, 2018), Applicant would be denied access to his work unit and systems. - Effect: These decisions, taken together, effectively ended Applicant’s active status with the Fund as of July 30, 2018, although he continued to receive full pay and benefits and remained subject to the rules and regulations governing staff until December 31, 2018. ### Standard for successful challenge - Applicant’s challenge to an individual managerial decision succeeds only if he establishes that the Fund abused its discretion because the decision was “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.” (Commentary on the Statute, p. 19) --- ### Findings and analysis regarding the administrative-leave-with-pay decision ### (1) Legal basis and notification - Timeline and notifications: - Applicant was initially informed orally on July 26, 2018, that he would be placed on administrative leave with pay. - That notification was followed in writing on August 1, 2018. - Content of the August 1, 2018 letter: “Taking into account recent aspects of the work environment, your manager has explained to HRD his view that this would be mutually advantageous and we hope it will facilitate your transition towards retirement.” - Tribunal findings: - There is no evidence that Applicant was notified of the legal basis (the authority in the Fund’s internal law) for the decision. - The decision maker (the HRD Deputy Director) may not have been clear which provision of internal law to apply; his testimony suggested he may have viewed the action as placement on leave pending investigation. - The Fund did not open a formal investigation into alleged misconduct. - The HRD Director’s denial of Applicant’s request for administrative review failed to cite any provision of the Fund’s internal law in upholding the decision. - The Fund’s failure to identify the authority for the contested decision meant the decision maker lacked guidance on standards to apply and hindered Applicant’s ability to challenge the decision effectively. ### (2) Applicability of Staff Handbook Section 5.6 versus Section 5.3 - Procedural and textual relationships: - Section 5.3 explicitly governs Administrative Leave with Pay Pending Investigation of Misconduct and cross-references Ch. 11.02, Section 7.5 (Interim Measures). - Section 5.6 is a “special and unusual situations” provision permitting administrative leave with pay where “in the view of the Director of HRD, the continuing presence of a staff member at work may not be in the interest of the Fund.” - Parties’ positions: - Respondent: Management has discretion not to investigate allegations of misconduct; no misconduct investigation was pursued; therefore invoking Section 5.3 was not required. - Applicant: Section 5.3 should have governed if the decision functioned as a disciplinary and security measure; invoking the catchall in Section 5.6 is improper where a more tailored rule applies (lex specialis). - Tribunal conclusion: - It was within the Fund’s authority to invoke Staff Handbook, Ch. 5.01, Section 5.6 as the basis for placing Applicant on administrative leave with pay. - The Tribunal must nonetheless assess whether the Fund properly exercised the discretion afforded by Section 5.6. ### (3) Procedural fairness and what the Fund did - Dispute about procedural prerequisites under Section 5.6: - Respondent: Section 5.6 confers “wide discretion” and there are no prerequisites such as a formal investigation prior to granting this form of administrative leave with pay. - Applicant: The decision should not have been taken absent the procedural steps afforded by Section 5.3. - Tribunal’s approach: - Determine what factors underlay HRD’s decision that “the continuing presence of [Applicant] at work may not be in the interest of the Fund.” - Determine what process was due in the circumstances and whether the Fund complied with that process. ### (i) Factors underlying HRD’s decision (as discerned by the Tribunal) - The Tribunal identified three interrelated factors from the record: - Discord in the working relationship between Applicant and the Head of Office, said to make untenable their continuing to collaborate in the management of the Office. - Applicant’s allegedly ill-tempered conduct, which might constitute misconduct. - The opinion of the Head of Office that Applicant’s continuing presence in the work unit “pose[d] a serious operational and security threat to [the Office] and its staff.” - Fund’s stated rationale: - The Fund characterized the decision as a “pragmatic decision to ensure that the [Office] could function effectively,” asserting that the relationship had deteriorated to the point they could no longer work together and that “there was no need for an investigation to establish this undisputed fact.” --- *International Monetary Fund Administrative Tribunal judgment excerpt.* ### 119. The Fund also seeks to minimize security concerns as a cause for the administrative- ### Administrative Leave with Pay under Section 5.6 — Tribunal Findings on Due Process ### Background and evidentiary basis - The Fund invoked Section 5.6 (Administrative Leave with Pay for Special and Unusual Situations) to place Applicant on administrative leave with pay in late-July 2018, linked also to an earlier non-promotion decision of late-June 2018. - The contemporaneous record and the HRD Director’s administrative review decision anchored the leave decision, at least in part, in allegations that Applicant had engaged in conduct that might constitute misconduct, including incidents dating to January 2018 and December 2017. - The Head of Office reported Applicant’s workplace behavior on three occasions between January and July 2018, describing it as: “unbecoming of a professional”; “hostile and threatening”; “potentially dangerous”; “bullying”; “making false accusations, defamatory comments concerning the Office and its staff members, and arguing with and shouting at the staff.” - Safety concerns were explicitly referenced: the Head of Office stated he did “not feel secure when [he was] in the Office with only [Applicant] around” and later described Applicant as a “serious operational and security threat to [the Office] and its staff.” - HRD officials’ testimony emphasized safety: the HRD Deputy Director stated the decision “. . . would create an environment in the office that at least I will not be concerned about the safety of – the safety of the staff there.” The SPM said “you have to act in the way that [is] best to ensure safety.” ### Procedural requirements established by the Tribunal - The Tribunal held that Section 5.6 is broadly drafted and “may be open to abuse.” When an administrative-leave-with-pay decision under Section 5.6 is based, in whole or in part, on allegations of conduct that might constitute misconduct and/or on the view that the staff member’s presence poses a risk of future harm, “procedural protections must be afforded akin to those required in cases of administrative leave with pay pending investigation of misconduct.” - The Tribunal applied established principles: - The doctrine of audi alteram partem requires that, before placing a staff member on administrative leave under circumstances grounded in alleged misconduct, the responsible official must give the staff member “a reasonable opportunity to be heard on the facts at issue and allegations against him or her, unless exceptional circumstances require otherwise.” - Notice and hearing are “essential principles of international administrative law,” applying in both disciplinary and non-disciplinary circumstances. - Where interpersonal conflict exists, it is ordinarily helpful to give the person against whom a complaint has been lodged an opportunity to be heard prior to placing that person on administrative leave, because “at times an entirely different complexion may be placed on the issues under investigation.” - The Tribunal concluded that when Section 5.6 is invoked on such grounds, the decision “be taken on the basis of an impartial assessment, following notice of the proposed action and an opportunity for the staff member to be heard on the matters that are to form the basis for the decision.” The staff member must be apprised of how his continuing presence is alleged to be antithetical to “the interest of the Fund.” ### Application to Applicant’s case — process due and Tribunal’s findings of deficiency - The Tribunal found the Fund did not err in invoking Section 5.6 as a legal basis, but held that the Fund abused its discretion by failing to observe fair and reasonable procedures in the circumstances of Applicant’s case. - Specific procedural failings identified: - Lack of clear notice of legal authority: The Fund failed to give Applicant notice of the legal provision under which the administrative-leave-with-pay decision would be taken; the record indicates the Fund itself was unsure which internal law provision applied. - Absence of impartial testing of allegations: Allegations by the Head of Office that Applicant engaged in inappropriate conduct and posed a risk of future harm were not subjected to an impartial weighing of the facts. Meetings where Applicant gave his version did not substitute for an articulated basis in law and fact that would enable meaningful defense and rebuttal. - No fair hearing by an impartial decision maker: The HRD Director did not form an independent, impartial “view” but instead adopted the Head of Office’s perspective; HRD “adopted the view of Applicant’s manager [i.e., the Head of Office] [who] has explained to HRD his view that this would be mutually advantageous.” - Reliance on alleged waiver or other defenses rejected: The Tribunal rejected Fund defenses that Applicant’s alleged failure to object, Applicant’s upcoming retirement, or HRD’s consultation with OII extinguished the procedural obligations. The record shows Applicant stated he would “use the Fund avenues to prove my point on this” and later emailed that he planned “to follow the procedures to seek justice within the IMF system.” - Consultation with OII insufficient: OII’s closure of a Preliminary Inquiry and its advice did not relieve HRD of the duty to provide Applicant with notice and an impartial hearing before placing him on administrative leave for special and unusual situations. - The Tribunal emphasized the gravity of consequences: unlike administrative leave “pending investigation of misconduct” (whose purpose is to preserve the status quo), the Section 5.6 decision in this case “effectively ended Applicant’s career with the Fund” without resolving the accusations, including serious ones such as “bullying,” which merited impartial assessment. ### Tribunal conclusions and implications - The Tribunal concluded: - Section 5.6 “may not be deployed to evade the procedural requirements that protect both the staff member and the institution from erroneous decision making” where the leave decision is based on allegations of conduct that might constitute misconduct. - General principles of international administrative law require that a Section 5.6 decision premised on alleged misconduct or risk of harm be based on an impartial assessment after notice and an opportunity to be heard. - In the case at hand, the Fund failed to provide adequate notice, impartial assessment, and a fair hearing; HRD’s reliance on the manager’s view was manifestly unfair. - Practical implication articulated by the Tribunal: - When “special and unusual situations” arise from conduct that might constitute misconduct and/or a perceived threat of future harm, HRD must undertake an independent assessment and afford fair process before placing a staff member on administrative leave with pay under Section 5.6. *Source: IMF Administrative Tribunal decision excerpt.* ### 144. For the foregoing reasons, the Tribunal concludes that the Fund failed to act in ### j2022-1 - 144. For the foregoing reasons, the Tribunal concludes that the Fund failed to act in ### Tribunal finding on fair and reasonable procedures (paras. 144–156) - The Tribunal concludes that the Fund "failed to act in accordance with fair and reasonable procedures" when it decided—without: - an impartial assessment, - following notice of the proposed action, and - an opportunity for Applicant to be heard on the matters that were to form the basis for the decision—that “in the view of the Director of HRD, the continuing presence of [Applicant] at work may not be in the interest of the Fund.” (para. 144) - The contested administrative-leave-with-pay decision of August 1, 2018, included at para. (iii) that: “Access to the [Office’s] systems and [to the Office] have been removed effective July 27. Otherwise your Fund network and buildings . . . access remains active in the normal way.” (para. 145) - Implementation facts and procedural deficiencies: - Applicant was effectively placed on administrative leave with pay at the outset, rather than on annual leave, because access to Office systems and Office were removed effective July 27, even though the written decision was dated August 1, 2018. (para. 146) - The decision that Applicant depart on administrative leave with pay was effectuated before the written decision had been issued. (para. 146) - Applicant alleges removal from the Office in a humiliating manner on July 26, 2018, immediately after oral advice of the leave decision; specifically that he was “brusquely ordered out of a [small work unit] without warning” and that his badge was taken away by the Office Manager, with removal of personal possessions the following day. Applicant characterizes the events as a “public, ritualized degradation.” (para. 147) - The Fund contends that denying Applicant access to his work unit and systems did not cause compensable harm. (para. 148) - The HRD Deputy Director’s response to Applicant’s report that his badge was demanded: he called the Office saying that this was not what was agreed. Applicant completed removing personal possessions the next day. (para. 149) - Comparative precedent and mitigation expectation: - In Ms. “EE” the Tribunal did not find contravention where a staff member was escorted by security when placed on leave pending investigation, but recommended the Fund “seek ways to minimize the public embarrassment” and suggested alternatives such as escorting at the end of the day or disabling a security pass and instructing the staff member not to report the next day. (paras. 150–151) - The Tribunal finds here that the pre-notification removal of access and requirement to vacate the office contributed to wrongfulness and violated the standard that all reasonable efforts must be taken to mitigate stigma and humiliation. The events adversely affected the dignity of the staff member. (paras. 152–154) - Conclusion on procedures: - The Fund did not act in accordance with fair and reasonable procedures in implementing the administrative-leave-with-pay decision. (para. 155) - The administrative-leave-with-pay decision must be rescinded due to fundamental failures of due process, including failure to cite any basis in internal law, failure to take an impartial decision following notice and an opportunity to be heard, and failure to mitigate stigma and humiliation. The Fund exceeded the margin of discretionary authority afforded by Staff Handbook, Ch. 5.01, Section 5.6. (para. 156) ### Tribunal analysis on improper motive and retaliation (paras. 157–173) - Central legal framing: - Tribunal concluded HRD’s decision relied on allegations from the Head of Office that Applicant had engaged in conduct potentially constituting misconduct and posed a threat to the Office and employees, and that HRD adopted the Head of Office’s view absent an impartial assessment, notice, or hearing. The decision was an abuse of discretion under Staff Handbook, Ch. 5.01, Section 5.6 and must be rescinded. (para. 157) - Applicant alleges the decision may have been further tainted by retaliation, harassment, or discrimination. (para. 158) - “Improper motive” is taking account of considerations not pertinent to the business reasons for a decision; a causal link must exist between the alleged irregular motive and the attacked decision. Mr. “F”, para. 73 referenced. (para. 159) - Retaliation standard and Tribunal’s approach to OII findings: - The Fund asserts that OII’s closure of Applicant’s retaliation preliminary inquiry provides persuasive evidence that no retaliation occurred; the Tribunal does not defer to OII findings absent a compelling reason. (para. 160) - Alleged pattern of retaliatory harassment (Applicant’s account) (para. 161–162) - Applicant alleges a pattern beginning with his January 2, 2018 meeting with the HRD Director and culminating in the July 26, 2018 administrative-leave-with-pay decision, including: - (i) January 9, 2018 communication from Head of Office to HRD reporting Applicant’s “bullying” and stating he “represent[ed] a risk to the proper functioning of the Office,” alleged to arise from cancellation of Applicant’s conference travel in retaliation for pressing HRD to hold an Office-wide meeting on staff survey results; - (ii) January 23, 2018 meeting with HRD Deputy Director and SPM concerning cafeteria and library incidents, where HRD Deputy Director allegedly said to Applicant “you don’t have long to go in your career at this point and there are too many things that are associated with you, so keep the lid on for the remainder of your period”; - (iii) May 9, 2018 report from Head of Office to HRD regarding alleged conduct toward a junior staff member; - (iv) June 21, 2018 APR discussion in which Head of Office advised he would not recommend Applicant for promotion and allegedly accused Applicant of “insubordination” and “going behind his back” to meet the HRD Director on January 2, 2018; - (v) July 20, 2018 email from Head of Office to HRD identifying Applicant as posing a “serious operational and security threat to [the Office] and its staff,” alleged by Applicant to be retaliation for Applicant’s July 17 and July 18, 2018 actions regarding an important Fund policy; and - (vi) July 26, 2018 administrative-leave-with-pay decision. (para. 162) - Applicant views the events as connected beginning with his January 2, 2018 visit to the HRD Director. (para. 162) - Respondent position: - Respondent maintains there was no retaliation because Applicant was not engaged in “protected activity” as defined by the Fund’s retaliation policy and there was no causal link between protected activity and the adverse action. (para. 163) - Retaliation legal test (three pillars) and application: - A sustainable claim of retaliation requires Applicant to show: (i) engagement in a “protected activity”; (ii) an “adverse action”; and (iii) a “causal link” between the two. Mr. “SS”, para. 166 cited. (para. 165) - The Tribunal defines the Retaliation Policy as protecting not only complainants and witnesses in formal proceedings but also “anyone” who uses channels for speaking up, reporting suspected misconduct, raising ethical concerns, and participating in formal and informal dispute resolution. Channels include managers, ASPMs, SPMs, Department Heads, HRD, the Ombudsperson, the Ethics Advisor, the Integrity Hotline, and the formal dispute resolution system. The Fund broadly protects staff who “speak up” or “raise ethical concerns,” formally or informally. Mr. “SS”, para. 170 cited. (para. 167) - The Tribunal finds Applicant engaged in “protected activity” when he went to the HRD Director on January 2, 2018, and when he requested administrative review of the decision not to promote him on July 1, 2018. (para. 168) - Burden of proof: Applicant must show causal link; Respondent may counter with evidence of a “reasonable and observable basis” for the decision. Evidence of a reasonable and observable basis is particularly significant where impartiality is questioned. Mr. “SS”, para. 174 and Ms. “GG” (No. 2), para. 329 cited. (para. 169) - Pattern, hostile work environment, and evidentiary limitations: - A pattern of incidents involving protected activities could give rise to a finding of retaliation, but incidents must involve protected activities within the policy’s scope and the adverse action must be clearly attributable to the pattern of protected activity. (para. 172) - The Tribunal notes it is hampered by the Fund’s failure to probe the sources of discord between Applicant and the Head of Office; a staff member’s conduct possibly falling short of norms is not dispositive of whether harassment or retaliation occurred. Mr. “F”, paras. 100–101 referenced, where compensable workplace harassment was found despite evidence the staff member contributed to the atmosphere. (para. 173) *International Monetary Fund Administrative Tribunal judgment, paras. 144–173.* ### 174. In the instant case, the Fund’s failure to act in accordance with fair and reasonable ### 174. In the instant case, the Fund’s failure to act in accordance with fair and reasonable ### Applicant’s allegations of “whistleblowing” - Events related to Applicant’s objections and concerns occurred on July 17 and July 18, 2018; the decision to place Applicant on administrative leave with pay was taken on July 26, 2018. - Applicant’s position: - Testified that the Head of Office wanted to take action Applicant viewed as risky and requiring permission of a specific Committee; Applicant objected in his risk-responsibility role. - Characterized his exchange as an “exposé” (“showing of willful violations of the . . . Committee’s policy”) and as “the trigger” for the administrative-leave-with-pay decision and “a later act in an ongoing whistleblowing action by [Applicant].” - Contended the Head of Office “instantly recognized [the disclosure’s] significance and moved with hyperbolic fervor” to (i) expel Applicant; (ii) cut him off from the Office’s computer system and databases; and (iii) deny Applicant access to information for further whistleblowing research and disclosures. - Respondent’s position: - Maintains the policy issue was a discussion limited to staff within the Office and that Applicant “had not made an allegation of ethical violation or misconduct by [the Head of Office].” - Asserts no basis for finding any “causal link” between Applicant’s statements and the HRD decision. - Notes the Head of Office described Applicant’s remarks as “false accusations” and “defamatory comments” in his July 20, 2018, email to HRD. - Tribunal observations: - The Fund’s written policy governing retaliation does not reference “whistleblowing” per se or expressly provide protection for calling into question colleagues’ views on policy application or the policies themselves. - The Tribunal interprets Fund internal law as “broadly protect[ing] all staff who ‘speak up’ or ‘raise ethical concerns,’ either formally or informally, with managers or through other workplace conflict resolution channels.” (Mr. “SS”, para. 170 cited by the Tribunal) - A culture that encourages staff to “speak up” is essential to the Fund’s mission and underlies international administrative law. - What is clear: Applicant called into question the Head of Office’s professional judgment; the Head reacted as if the conduct were defamatory. - There is insufficient evidentiary clarity as to respective responsibilities of Applicant and the Head of Office for their discord; the evidentiary record is opaque and the evidence is insufficient to conclude whether the discord gives rise to an actionable claim of retaliation. - The Fund’s failure to explore responsibility for the contentious working relationship or to provide any solution other than the action that adversely impacted Applicant was an error of law and a failure of fair procedure. ### Was the decision improperly motivated by age discrimination? - Chronology and facts: - Applicant was five months short of reaching the Fund’s mandatory retirement age when placed on administrative leave with pay. - The administrative leave period spanned 2.5 months. - Applicant had 2.5 months of accrued annual leave to exhaust prior to retirement. - Following the administrative leave decision, which was notified to Applicant on August 1, 2018, Applicant never returned to active status at the Fund. - Applicant’s allegation: - Contends that had he been younger, “. . . his expulsion [from the Fund] without an investigation or charges would have been unthinkable,” and therefore the administrative-leave-with-pay decision was improperly motivated by age discrimination. - Fund’s position: - Asserts the decision was not motivated by discriminatory animus based on Applicant’s age but was “informed by Applicant’s impending separation date from the Fund.” (Emphasis in original.) - Compares the situation to a term appointee with six months remaining: if “a special and unusual circumstance arises - such as an intractable interpersonal conflict that affects the work unit,” the HRD Director could decide to place the staff member on administrative leave with pay rather than pursue alternatives; such a decision is said to be a consequence of time-limited remaining service, “not to do with the individual’s age.” - Relevant internal law: - Staff Handbook, Ch. 11.01 (Standards of Conduct), Section 5.1 (Prohibition of Discrimination) states: “Subject to the Fund’s institutional needs, including the paramount importance of securing the highest standards of efficiency and technical competence, the employment, classification, promotion and assignment of staff members shall be made without discriminating against any person because of age, creed, disability, ethnicity, gender, nationality, race or sexual orientation.” - Tribunal application of precedent: - Cites Mr. M. D’Aoust (No. 2), IMFAT Judgment No. 2007-3 (May 22, 2007), where an age discrimination challenge to a vacancy selection process failed when the applicant’s claim was tied to alleged improper discounting of qualifications; Tribunal held the Fund’s assessment approach could not be said to evidence age discrimination. - Tribunal conclusion on age claim: - Applicant failed to substantiate that the administrative-leave-with-pay decision was improperly motivated by age discrimination. - Nevertheless, the Tribunal found the Fund was not relieved of its obligation to take the administrative-leave-with-pay decision in accordance with fair and reasonable procedures. ### Tribunal’s conclusions on improper motive - The Tribunal is not able, on the record, to conclude that Applicant established the administrative-leave-with-pay decision was tainted by retaliation, harassment, or age discrimination. - The Tribunal held the administrative-leave-with-pay decision must be rescinded because the Fund exceeded the margin of its discretionary authority by failing to take the decision in accordance with fair and reasonable procedures. ### Did the Fund abuse its discretion in the treatment of Applicant’s case by the Grievance Committee? - Applicant’s allegations: - Claims the Grievance Committee proceedings diverged from due process, were affected by bias, and that the Committee acted inconsistently with Tribunal precedents on compensation for intangible injury. - Asserts he “endure[d] a long, costly and rigged process in which the Grievance Committee acted as a second set of advocates for the Fund.” - Respondent’s position: - Submits that the recommendations and internal processes of the Grievance Committee are not subject to the Tribunal’s review as “administrative acts” under the Tribunal’s Statute. - Objects to inclusion in current pleadings of discussion of the Grievance Committee’s treatment of other cases. - Tribunal principles and practice: - The Tribunal is not an appellate body over the Grievance Committee and examines issues de novo; it relies substantially on the record assembled through the Grievance process but will assess the weight of that record if its integrity is challenged. - The Tribunal has emphasized the “utility of the administrative review process” and the value of coherence between legal principles applied by the Tribunal and those applied by other elements of the Fund’s dispute resolution system. - It is essential that administrative review and Grievance Committee processes be fair; duties of confidentiality should be strictly observed; the Fund should take appropriate steps to ensure robustness and integrity of these processes. - If the Grievance Committee record is patently unfair or unreliable, the Tribunal may call upon its Article X, Rules XVII and XIII authority to order production of documents, request information, and hold oral proceedings. - Case-specific outcome: - Applicant prevailed before the Grievance Committee insofar as the Committee found the administrative-leave-with-pay decision “defective because it was the product of retaliatory motives”; the Committee recommended rescission, which Fund Management accepted. - The Grievance Committee rejected Applicant’s request for monetary relief, concluding he had not proven tangible or intangible injury resulted from the impugned decision. - The Grievance Committee recommended, and Fund Management accepted, awarding only a portion of requested attorneys’ fees. - Tribunal stance: - Will not pass judgment on Applicant’s broader complaints about fairness in the Grievance Committee process given its statutory mandate, but reaffirms the desirability of coherence between the Grievance Committee’s interpretations and Tribunal jurisprudence. - Reminds the Fund to remain vigilant in ensuring robustness and integrity of dispute resolution channels. ### The issue of civility before the Tribunal - Respondent’s assertion: - Claims “Applicant’s counsel’s ‘advocacy’ violates basic standards of professionalism and civility,” alleging submissions contain ad hominem attacks, false statements and misrepresentations, and an offensive tone. - Requests that Applicant not be awarded attorneys’ fees on that ground. - Applicant’s counsel’s response: - Defends the “professionalism, propriety and style” of his pleadings. - Tribunal expectations: - Reiterates that exercising the right to review administrative acts is a fundamental right of international civil servants; applicants and their counsel and Fund representatives are expected to conduct themselves to facilitate a fair and reasoned adjudicatory process. - Notes canons of conduct used by other tribunals (e.g., United Nations Dispute Tribunal and United Nations Appeals Tribunal “Code of conduct for legal representatives and litigants in person”) that require acting “honestly, candidly, fairly, courteously, in good faith and without regard to external pressures or extraneous considerations.” - Encourages litigants to formulate pleadings showing courtesy and respect for adversaries and the adjudicatory process. - The Tribunal expects discourse in written and oral submissions to support the reasoned decision-making process required of the Tribunal. *International Monetary Fund Administrative Tribunal judgment excerpt.* ### 203. Zealous advocacy must not give way to argumentation that misleads. Counsel, while ### Zealous advocacy must not give way to argumentation that misleads ### Tribunal conclusions - The Administrative Tribunal of the International Monetary Fund concluded the Fund abused its discretion in deciding to place Applicant on administrative leave with pay and to deny him access to his work unit and systems. - The Tribunal did not sustain Applicant’s secondary claim challenging the treatment of his case by the Grievance Committee. - The Fund has already rescinded the administrative-leave-with-pay decision following the Grievance Committee recommendation. ### Remedies framework - The Tribunal’s remedial authority for challenges to individual decisions is found in Article XIV, Section 1, of the Statute: if an application challenging the legality of an individual decision is well-founded, the Tribunal shall prescribe the rescission of such decision and all other measures required to correct the effects of that decision. - The Tribunal’s jurisprudence categorizes remedial powers into three broad types: - (i) rescission of the contested decision, together with measures to correct the effects through monetary compensation or specific performance; - (ii) compensation for intangible injury resulting from procedural failure in taking a sustainable decision; - (iii) compensation to correct effects of intangible injury where the Fund failed to act in accordance with legal obligations and there may be no decision to rescind. ### Remedy for intangible injury - The Tribunal recognizes intangible injury is difficult to quantify and does not require applicants to offer proof of harm; instead it identifies injury and assesses nature and severity, weighing aggravating and mitigating factors. - The Tribunal found the Fund breached its obligation to take the administrative-leave-with-pay decision in accordance with fair and reasonable procedures because the Fund: - (i) omitted in communications with Applicant any basis in its internal law for the impugned decision; - (ii) failed to take an impartial decision, following notice and an opportunity for Applicant to be heard, that the “continued presence of [Applicant] at work may not be in the interest of the Fund”; - (iii) failed to meet the standard that all reasonable efforts must be taken to mitigate the inherent stigma and potential humiliation associated with placing a staff member on administrative leave with pay. - Aggravating factors identified by the Tribunal include: - the inherent stigma, particularly for a long-serving staff member, of a determination that the staff member’s “continuing presence . . . at work may not be in the interest of the Fund,” including the affront to perceived competence; - humiliation and loss of dignity from removal from Office premises prior to any written decision; - embarrassment from the staff member’s immediate departure from the Fund. - Mitigating factor: - Applicant’s career with the Fund was set to conclude as a consequence of reaching mandatory retirement age. - Compensation awarded for intangible injury consequent to the Fund’s abuse of discretion: $30,000. ### Legal fees and costs - Article XIV, Section 4, of the Statute authorizes the Tribunal to order that reasonable costs incurred by the applicant, including cost of counsel, be totally or partially borne by the Fund, taking into account nature and complexity of the case, nature and quality of work performed, and amount of fees in relation to prevailing rates. - Applicant submitted documentation supporting a fee request in accordance with Rule IX(5). - Applicant sought total legal fees and costs of $47,572.91, of which $20,096.82 represents fees incurred for representation in the Grievance Committee that remained unreimbursed after the Fund granted partial fees. - The Fund argued for denial of fees in their entirety on grounds of alleged violations of professionalism and civility by Applicant’s counsel; the Tribunal declined to deny fees on that basis in light of the Statute’s commitment to access to justice. - Principles applied to assess fees and costs: - compensable fees include representation in administrative review channels that must be exhausted before Tribunal application; - a measure of proportionality applies based on the degree of applicant’s success on total claims; - there is no legal linkage between compensation awarded for substantive relief and the costs of legal representation. - Case-specific findings affecting award: - Applicant prevailed on the principal claim (abuse of discretion in placing him on administrative leave with pay) but not on the secondary claim regarding the Grievance Committee. - Applicant represented himself through the Grievance Committee hearing phase, later engaged counsel for post-hearing briefs; a principal post-hearing brief was incorporated by reference into the Tribunal Application and was relied upon by the Tribunal. - Applying proportionality: - 100 percent of legal fees and costs associated with the Reply and oral proceedings (focused on the successful claim) are awarded. - 25 percent of fees and costs associated with preparation of the Application are reimbursed. - 100 percent of legal fees and costs incurred in the Grievance Committee are awarded, reduced by fees already reimbursed by the Fund following the Grievance Committee’s Supplemental Report and Recommendation. - Total award for legal fees and costs: $38,421.97, which is approximately 80 percent of the total fees and costs requested. ### Decision (unanimous) - The Tribunal rescinded the Fund’s decision to place “TT” on administrative leave with pay and found that “TT” prevailed on that claim. - To correct the effects of the rescinded decision in the form of intangible injury, “TT” is awarded $30,000. - The complaint that the Fund abused its discretion in the treatment of “TT” by the Grievance Committee is not sustained. - The Fund shall pay “TT” $38,421.97 for legal fees and costs incurred in the case, including unreimbursed fees and costs incurred in the Grievance Committee proceedings. --- _Source: https://www.imf.org/-/media/files/imfat/j2022-1.pdf_