## j2024-5 — INTRODUCTION ## Source details **Canonical URL:** [j2024-5 — INTRODUCTION](https://www.imf.org/-/media/files/imfat/j2024-5.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2024-5.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2024-5.pdf.json) --- ### Introduction and procedural posture - The Administrative Tribunal of the International Monetary Fund decided the Application brought by “XX”, a staff member of the Fund, against the International Monetary Fund (“Respondent” or “Fund”). - The Tribunal was composed, pursuant to Article VII(4) of the Tribunal’s Statute, of Judge Nassib G. Ziadé, President, and Judges Maria Vicien Milburn and Andrew K.C. Nyirenda. - Applicant was represented by Messrs. Peter C. Hansen, J. Michael King, and Francis E. Waliczek. Respondent was represented by Mr. Erik Plith and Mr. Mark Racic. - The Tribunal denied Respondent’s Motion for Summary Dismissal on admissibility grounds, concluding Respondent had not shown the Application was “clearly inadmissible” under Rule XII of the Tribunal’s Rules of Procedure. ### Central disputes and legal questions - Key contention: whether Applicant should have retained Grade A8 and corresponding salary upon return to Fund staff after Board service, rather than resuming Grade A6. - Applicant’s allegations include: - EBAP/86/169’s six-year requirement was wrongfully applied. - Denial of opportunity to use accrued annual leave during Board service to bridge to six years. - The then Director of the Human Resources Department (“HRD”) should have made an exception. - Total career service met “continuous service” requirement. - The six-year requirement of EBAP/86/169 is itself unfair. - Respondent’s contentions include: - Applicant did not meet the six-year “continuous service” requirement of EBAP/86/169. - Denials of leave requests were lawful and within ED/HRD discretion. - Challenge to EBAP/86/169 (a 1986 Board decision) is precluded by Article XX of the Tribunal’s Statute (effective date October 15, 1992). ### Relief sought by Applicant - Conversion of 65 days of unused annual Board leave (to cover June 1 – September 1, 2021) to satisfy the six-year requirement. - Rescission of existing Fund staff contract and replacement by a backdated contract to: - (i) maintain Grade A8; - (ii) receive same salary as prior to return to Fund staff; - (iii) receive full pension credit and rights as if not downgraded. - Three years’ salary as moral and intangible damages. - All retroactive salary increases and benefits lost due to downgrade. - Legal fees and costs pursuant to Article XIV(4) of the Tribunal’s Statute. *Source: Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2024-5.* ### Relevant governance framework and OED Handbook points - Advisors and Assistants to Executive Directors are not included in the term “staff members.” - An Executive Director may terminate the appointment of an Advisor/Assistant “at any time and for any reason the Executive Director considers sufficient.” - A regular staff member appointed as an Administrative or Staff Assistant to an Executive Director is entitled upon expiration of the appointment to resume regular employment status with the Fund at his or her former grade unless the individual “has completed six years of continuous service” as an Assistant, in which case “[f]or two years from the date of the appointment [to regular employment status], the individual’s grade and salary will be ‘grandfathered’ in accordance with the provisions approved at Executive Board Meeting 86/16 (1/30/86).” - The OED Handbook provisions governing transfer reflect the Board decisions found in EBAP/86/169. - “Executive Directors shall approve leave for their own Advisors/[A]ssistants.” --- ### Employment chronology — key dates and events - 2007: Applicant began employment with the Fund as a contractual employee. - June 12, 2008: Transfer to Board staff as Grade A6 Administrative Assistant to an ED. - May 13, 2014: Transfer back to Fund staff; was one-month short of six years’ Board service and permitted to retain Grade A6 upon transfer; chron entry noted “Interdepartmental Transfer (Grandfathered).” - September 1, 2015: Transfer again to Board staff as Administrative Assistant at Grade A7; confirming letter dated April 20, 2016 cited EBAP/86/169 and the six-year “grandfathering” rule. - July 1, 2019: Promoted to Grade A8 while serving as Administrative Assistant to the ED. - December 2019: ED succeeded by a new ED. --- ### Termination and re-entry (May–June 2021) — facts and immediate consequences ### Termination and transfer timeline - May 10, 2021: New ED informed Applicant of decision to terminate her appointment; email stated decision was “grounded on careful assessment of your performance over the period I have been here as Executive Director.” - Applicant had scheduled vacation for May 17-31, 2021; parties agree Applicant’s Board appointment concluded on May 31, 2021, and transfer to Fund staff took effect June 1, 2021. - June 3, 2021: HRD official advised Applicant of “transfer to the regular staff of the Fund” at Grade A06 effective June 1, 2021, governed under EBAP/86/169, paragraph 2(b). ### Applicant’s actions and assertions - Applicant sought approval to use accrued annual leave to extend Board appointment to September 2, 2021 to reach six years; she reported having “exactly 65 days from the total 120 days accrued at the time” (Applicant elsewhere referred to 67 days; the Tribunal refers to 65 days). - Applicant alleges she was “removed from my duties . . . by the Executive Director precisely four days before taking an approved annual leave” and signed a backdated contract under duress to preserve employment with Fund staff. - Applicant signed acceptance of transfer to Fund staff on July 8, 2021, backdated effective June 1, 2021. - Applicant received her first reduced paycheck on July 23, 2021; she submits salary decreased by 7.5 percent as a consequence of transfer and only in 2024 did salary return to its 2021 level via annual increases while she remained at Grade A6. --- ### Procedural history, document requests, and oral proceedings ### Procedural timeline (selected) - January 6, 2022: “Placeholder” Grievance filed. - February 14, 2022: Amended Statement of Grievance filed. - March 25, 2022: Respondent filed Motion to Dismiss the Grievance. - May 11, 2022: Grievance Committee granted Fund’s Motion to Dismiss on jurisdictional grounds. - August 11, 2022: Applicant filed Application with the Tribunal; supplemented August 23, 2022. - June 7, 2024: Tribunal denied Respondent’s Motion for Summary Dismissal and resumed merits. - July 26, 2024: Respondent filed Answer. - September 3, 2024: Applicant filed Reply. - October 9, 2024: Respondent filed Rejoinder. - November 11, 2024: Oral proceedings limited to counsel’s oral arguments; held in private with Applicant anonymous. - November 19, 2024: Applicant filed Supplemental Request for Costs; Respondent responded November 26, 2024. ### Document production requests and Tribunal rulings - Applicant’s Document Request No. 1 (broad communications concerning conversion and efforts to maintain grade/salary) denied for failure to supply reasons under Rule XVII(1) and as “unduly burdensome” under Rule XVII(2). - Applicant’s Document Request No. 2 (anonymized list of assistants transferring between Board and Fund since 2014) denied; Tribunal found Respondent’s annex substantially satisfied the request. - Tribunal denied reconsideration of document production decisions on October 16, 2024 and rejected request for negative inferences. ### Witness requests and oral proceedings - Applicant sought to call (i) relevant Executive Director; (ii) HRD Director (preferably former); and (iii) Applicant herself as fact-witnesses. - Tribunal permitted oral arguments of counsel but declined witness examination because Applicant did not specify what additional evidence witnesses would provide or why the written record was inadequate. --- ### Tribunal analysis and findings — ED decisions ### Scope and standard of review - Tribunal considered challenges to ED decisions under Article II(2)(c)(ii) of the Tribunal’s Statute (status as a “current or former assistant to an Executive Director”). - Tribunal will account for the distinct employment framework of assistants while applying generally recognized principles of international civil service law. - Respondent’s framing: ED employment decisions are subject to limited review and entitled to deference; can be overturned if “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.” ### ED leave-denial findings - Applicant requested use of 65 days of accrued leave in June 2021; ED responded June 10 and June 11, 2021 that termination decision was final and that using office budget to permit accrued leave to bridge to six years would be “an improper use of the office’s budget,” suggesting contact with SEC and HRD. - Tribunal conclusions: - Applicant has not shown the ED had authority to approve leave requests after her Board appointment had ceased. - Applicant has not shown the ED was obligated to reverse the termination decision to grant those requests. - Applicant’s assertions of comparable accommodations to others were unsupported. - Applying a deferential standard, the Tribunal concludes Applicant did not show the ED abused his discretion by denying post-termination requests to use accrued annual leave to meet the six-year requirement of EBAP/86/169. --- ### Tribunal analysis and findings — HRD decisions and regulatory challenge ### Admissibility of challenges to HRD actions - Tribunal found application of Fund law to individual staff circumstances is an “administrative act” reviewable under Article II. - A challenge to interpretation or application of rules governing grade and salary in an individual case is admissible. - Tribunal concluded Applicant raised an admissible challenge to HRD’s interpretation and application of EBAP/86/169; the then HRD Director’s omission in denying post-termination requests constituted an “administrative act” for admissibility. ### Did HRD err in construing EBAP/86/169 on “continuous service”? - Relevant facts: - Applicant’s Board service terminated May 31, 2021; transfer to Fund staff effective June 1, 2021. - Applicant had previously had a 2014–2015 transfer that interrupted Board service for sixteen months. - Applicant sought conversion of 65 days of accrued leave; the Tribunal refers to 65 days. - Tribunal conclusion: - Applicant did not establish HRD erred in construing EBAP/86/169 to determine she had not completed six years of “continuous service” prior to 2021 transfer. - Tribunal rejected arguments that 60 days’ notice, 65 days of shortfall, or de minimis considerations required counting additional time absent rule or obligation. ### Did HRD abuse discretion in denying post-termination leave requests? - Tribunal conclusions: - Only the ED could take termination decision or grant leave for an assistant in his office; HRD lacked authority to require ED to extend appointment after termination. - ED lacked authority to grant such requests once Applicant’s ED appointment had ceased on May 31, 2021; Applicant first pressed HRD more than a month later. - Applicant did not show the then HRD Director abused her discretion in denying the post-termination requests. ### Did HRD abuse discretion in declining to make an exception to the six-year rule? - Tribunal conclusions: - Applicant provided no evidence she was treated differently from similarly situated assistants who had not completed six years. - The earlier 2014 exception related to “materially different” circumstances; not shown comparable to 2021 facts. - Applicant did not show the then HRD Director abused discretion in declining to make an exception to EBAP/86/169’s six-year requirement. ### Challenge to EBAP/86/169 as a regulatory decision — Article XX temporal bar - Applicant contested the six-year continuous service requirement as a “regulatory decision.” - Respondent argued challenge is precluded by Article XX of the Tribunal’s Statute (rules adopted in 1986). - Tribunal findings: - The six-year requirement is part of EBAP/86/169 since 1986; Applicant presented no evidence of review or revision within Tribunal’s jurisdictional period. - Tribunal concluded insofar as Applicant seeks to challenge the regulatory decision requiring six years of continuous service, that challenge is barred by Article XX. --- ### Fair treatment, intangible injury, remedies, and awards ### Fair treatment findings - The Fund’s separate and discordant employment frameworks for Board and Fund staff create acute consequences when re-entry occurs near the six-year mark. - The Fund had an obligation to treat Applicant in accordance with fair and reasonable procedures applicable to Fund staff when transferring her between regimes. - The Fund failed to engage proactively with Applicant before the transfer became effective to: - ensure she was fully aware of consequences of re-entry to Fund staff; - provide opportunity to seek accommodations (e.g., expend accrued annual leave); - coordinate possible approaches to cushion abrupt change in employment status. - Record irregularities noted, including delayed issuance (April 20, 2016) of a letter confirming a September 1, 2015 transfer following a sixteen-month prior transfer and questions regarding adequacy of notice. ### Intangible injury and compensation - Intangible injury arises when the Fund “fails through inaction to discharge a duty imposed by its written law or by general principles of international administrative law, such as the obligation to take decisions in accordance with fair and reasonable procedures.” - The Tribunal identified the injury as the Fund’s failure to afford Applicant a fair opportunity, before cessation of Board employment, to explore mitigation options. - Compensation for intangible injury awarded: $20,000. ### Legal fees and costs — statutory basis and awards - Article XIV(4) of the Tribunal’s Statute authorizes awards of legal fees and costs where an application is well-founded in whole or in part. - Applicant sought $37,646.63 in legal fees and costs, of which $4,068.66 is attributable to preparation of Applicant’s Objection to the Motion for Summary Dismissal. - Tribunal applied a “principle of proportionality” given partial success: - Awarded 70 percent of legal fees and costs incurred in the merits phase. - Awarded the full legal fees and costs incurred in successfully responding to the Motion for Summary Dismissal. - Total legal fees and costs awarded to Applicant: $27,573.24. --- ### Operative rulings — Tribunal decision (summary) - The Fund’s decision to deny “XX” the opportunity to retain her Board grade and salary when she transferred to Fund staff in 2021 is sustained. - “XX”’s re-entry to Fund staff was not undertaken fully in accordance with principles of fair treatment; to correct effects of that intangible injury, “XX” is awarded $20,000. - The challenge to the six-year requirement of EBAP/86/169 as a “regulatory decision” is inadmissible under Article XX of the Tribunal’s Statute. - The Fund shall pay “XX” 70 percent of legal fees and costs incurred in pleading her case on the merits, plus the full legal fees and costs incurred in responding to the Motion for Summary Dismissal; total awarded: $27,573.24. - Signatories: Nassib G. Ziadé, President; Maria Vicien Milburn, Judge; Andrew K.C. Nyirenda, Judge; Registrar: Paul Jean Le Cannu. - Location and date of Decision: Washington, D.C., December 30, 2024. *Source: International Monetary Fund Administrative Tribunal, Decision, Washington, D.C., December 30, 2024.* ### INTRODUCTION ........................................................................................................... ### j2024-5 - INTRODUCTION ### Introduction and procedural posture - The Administrative Tribunal of the International Monetary Fund (“Tribunal”) decided the Application brought by “XX”, a staff member of the Fund, against the International Monetary Fund (“Respondent” or “Fund”). - The Tribunal was composed, pursuant to Article VII(4) of the Tribunal’s Statute, of Judge Nassib G. Ziadé, President, and Judges Maria Vicien Milburn and Andrew K.C. Nyirenda. - Applicant was represented by Messrs. Peter C. Hansen, J. Michael King, and Francis E. Waliczek. Respondent was represented by Mr. Erik Plith and Mr. Mark Racic. - Applicant challenges as arbitrary and capricious the terms of her employment upon return to Fund staff following service with the IMF Executive Board as an Assistant to an Executive Director (“ED”). - The Tribunal denied Respondent’s Motion for Summary Dismissal on admissibility grounds, concluding Respondent had not shown the Application was “clearly inadmissible” under Rule XII of the Tribunal’s Rules of Procedure. ### Central disputes and legal questions - Applicant resumed Grade A6 status on the Fund staff rather than retaining Grade A8 attained during Board employment. - Applicant alleges: - EBAP/86/169’s requirement to complete six years of Board service to maintain a higher grade and salary was wrongfully applied to her. - She was unfairly denied the opportunity to use annual leave accrued during Board service to be bridged to the six-year mark. - The then Director of the Human Resources Department (“HRD”) should have made an exception to the six-year rule. - Alternatively, she argues she met the six-year “continuous service” requirement based on her total career. - She contends the six-year requirement of EBAP/86/169 is itself an unfair rule. - Respondent contends: - Applicant did not meet the six-year “continuous service” requirement of EBAP/86/169. - Applicant was not unfairly denied the opportunity to meet that requirement by the ED’s or the then HRD Director’s denial of leave requests. - The then HRD Director did not abuse her discretion in refusing an exception. - The rule itself is not unfair. - The then HRD Director did not take any challengeable administrative act, and any challenge to EBAP/86/169 (a 1986 Board decision) is precluded by Article XX of the Tribunal’s Statute (effective date October 15, 1992). ### Factual background: employment frameworks and entitlements - OED Handbook distinctions: - Advisors and Assistants to Executive Directors are not included in the term “staff members.” - An Executive Director may terminate the appointment of an Advisor/Assistant “at any time and for any reason the Executive Director considers sufficient.” - A regular staff member appointed as an Administrative or Staff Assistant to an Executive Director is entitled upon expiration of the appointment to resume regular employment status with the Fund at his or her former grade unless the individual “has completed six years of continuous service” as an Assistant, in which case “[f]or two years from the date of the appointment [to regular employment status], the individual’s grade and salary will be ‘grandfathered’ in accordance with the provisions approved at Executive Board Meeting 86/16 (1/30/86).” - The OED Handbook provisions governing transfer reflect the Board decisions found in EBAP/86/169. - “An appointment to the regular staff under Section B.6.1 shall be effected without a break in service, and all accrued benefits shall be retained provided that they do not exceed those of the regular staff.” - “Executive Directors shall approve leave for their own Advisors/[A]ssistants.” ### Factual background: Applicant’s employment chronology (key dates and events) - 2007: Applicant began employment with the Fund as a contractual employee. - June 12, 2008: Applicant transferred to Board staff as a Grade A6 Administrative Assistant to an ED. - May 13, 2014: Applicant transferred back to Fund staff; was one-month short of six years’ Board service and was permitted to retain Grade A6 upon transfer to Fund staff; chron entry noted “Interdepartmental Transfer (Grandfathered).” - September 1, 2015: Applicant transferred again to Board staff as an Administrative Assistant to a different ED at Grade A7. A confirming letter dated April 20, 2016, cited EBAP/86/169 and advised of re-employment rights and the six-year “grandfathering” rule; the letter identified an HRD contact for questions. - July 1, 2019: While serving as an Administrative Assistant to the ED, Applicant was promoted to Grade A8. - December 2019: The ED for whom Applicant worked was succeeded by a new ED. ### Factual background: termination and return to Fund staff (May–June 2021) - May 10, 2021: The new ED informed Applicant he had decided to terminate her appointment; an e-mail of the same date memorialized that decision and stated it was “grounded on careful assessment of your performance over the period I have been here as Executive Director.” - Applicant had scheduled vacation for May 17-31, 2021; Applicant asserts the ED kept her employed until her vacation ended, and that the ED “accepted to keep her employed until her vacation ended.” - Parties agree: Applicant’s Board appointment concluded on May 31, 2021, and her transfer to Fund staff took effect June 1, 2021. - Applicant’s position: she was “removed from my duties . . . by the Executive Director precisely four days before taking an approved annual leave” and was informed upon return from vacation that because she was lacking three months to reach six years in OED she would have to sign a contract with HRD at grade 6. - Respondent notes that after the May 10 decision, and despite no obligation, the ED approved Applicant’s request for two weeks of leave from May 17-31, 2021. - June 3, 2021: An HRD official advised Applicant of her “transfer to the regular staff of the Fund” at Grade A06 effective June 1, 2021, stating the transfer was “governed under EBAP/86/169, paragraph 2(b).” The letter reiterated that as a regular staff member she would be subject to present and future administrative regulations and identified an HRD contact for questions. ### Procedural history (selected) - Respondent moved for summary dismissal on timeliness grounds; the Tribunal denied that Motion in its Judgment on admissibility. - The Application proceeds to merits on challenges including the ED’s and HRD’s decisions regarding application of EBAP/86/169, the denial of requests to use accrued annual leave to bridge to six years of Board service, and whether the six-year requirement is challengeable or precluded by Article XX of the Tribunal’s Statute. *Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2024-5* ### 21. Applicant signed her acceptance of “this change in appointment status” more than a month ### j2024-5 - 21. Applicant signed her acceptance of “this change in appointment status” more than a month ### Timeline and key actions - Applicant signed acceptance of her transfer to Fund staff on July 8, 2021, backdated effective June 1, 2021. - Applicant sought to extend her Board service to meet the six-year requirement of EBAP/86/169 and initially pursued extensions prior to signing. - Applicant asserted she “signed her backdated . . . contract under duress” to preserve employment with the Fund staff. - Applicant reported receiving her first reduced paycheck on July 23, 2021. ### Grade and salary consequences - In accordance with EBAP/86/169, paragraph 2(b), Applicant experienced an immediate reduction of grade from Grade A8 to Grade A6 upon transfer. - Applicant experienced a reduction of salary “to the highest available salary for Grade A6.” - Applicant submits that her salary decreased by 7.5 percent as a consequence of the transfer and that only in 2024 did her salary return to its 2021 level via annual increases, while she remained at Grade A6. ### Applicant’s requests to use accrued annual leave to bridge to six years of Board service - Applicant sought approval from the Executive Director (ED) to use accrued annual leave to extend appointment in the ED’s office to September 2, 2021, to reach six years of Board service. - Applicant’s communications stated she had accrued “exactly 65 days from the total 120 days accrued at the time” (Applicant elsewhere referred to 67 days; the Tribunal refers to 65 days). - ED responses: - June 10, 2021: ED replied the decision was “irrevocably made and cannot be reversed” and that fulfilling the request would be “an improper use of the office’s budget.” - June 11, 2021: ED reiterated inability to help and suggested Applicant discuss alternatives with SEC and HRD. - HRD interactions: - July 6, 2021: Applicant met with the then HRD Director and provided a written summary requesting use of cumulated annual leave until September 2, 2021. - Applicant’s account: then HRD Director denied the leave request orally, citing (i) Applicant’s alleged poor performance as per the ED, (ii) that Applicant had previously been allowed to circumvent the six-year rule for a prior period of Board service from June 2008 to May 2014, and (iii) options Applicant could have pursued such as taking leave during Board service or carrying over unused leave. - July 27, 2021: Applicant contested the reasons and requested that her message be included in her permanent file. ### Procedural history before the Grievance Committee and Tribunal - January 6, 2022: Applicant filed a “placeholder” Grievance. - February 14, 2022: Applicant filed an Amended Statement of Grievance. - March 25, 2022: Respondent filed a Motion to Dismiss the Grievance. - April 25, 2022: Applicant filed a Partial Opposition to the Motion to Dismiss. - May 11, 2022: Grievance Committee granted the Fund’s Motion to Dismiss on jurisdictional grounds (failure to allege adverse effect by a decision inconsistent with Fund regulations as required under Staff Handbook, Ch. 11.03, Section 5.6). - August 11, 2022: Applicant filed an Application with the Tribunal; supplemented on August 23, 2022. - June 7, 2024: Tribunal denied Respondent’s Motion for Summary Dismissal and resumed merits pleadings. - July 26, 2024: Respondent filed its Answer. - September 3, 2024: Applicant submitted her Reply. - October 9, 2024: Respondent filed its Rejoinder. - November 11, 2024: Tribunal held oral proceedings limited to counsel’s oral arguments. - November 19, 2024: Applicant filed a Supplemental Request for Costs; Respondent responded on November 26, 2024. ### Document production requests and Tribunal decisions - Applicant’s Document Request No. 1 sought: all communications and documents concerning Applicant’s conversion to the Fund’s staff, new terms, and efforts to maintain Board grade and salary. Respondent opposed as overly broad and lacking reasons. - Applicant’s Document Request No. 2 sought: anonymized list of all assistants transferring between Board and Fund since 2014 with years of Board service, grades and salaries pre- and post-transfer, and explanatory notes. Respondent provided an annexed table it described as substantially relevant and nonprivileged. - Tribunal decisions: - Denied both Document Requests on August 15, 2024. - Rationale for Request No. 1 denial: Applicant failed to supply reasons as required by Rule XVII(1) and the request’s scope was “unduly burdensome” under Rule XVII(2). - Rationale for Request No. 2 denial: Tribunal found the annex to the Answer substantially satisfied the request, noting the annex disclosed number of grade levels moved and percentage changes in salaries and supplied brief comments on circumstances governed by EBAP/86/169. - Applicant requested reconsideration of the Tribunal’s document production decisions in her Reply; Tribunal denied the reconsideration on October 16, 2024, noting it does not ordinarily entertain unilateral reconsideration requests and that Respondent did not join the request. Tribunal also rejected Applicant’s request for negative inferences. ### Oral proceedings and witness requests - Applicant requested an oral hearing and sought to call as fact-witnesses: (i) the relevant Executive Director; (ii) the HRD Director (preferably the former HRD Director); and (iii) Applicant herself. - Respondent objected, arguing the written record was sufficient. - Tribunal’s approach: - Recalled Rule XIII permits deciding cases on (a) written pleadings alone; (b) written pleadings and oral arguments of counsel; or (c) written pleadings, oral arguments, and witness hearings. - Determined oral proceedings would be useful to hear counsel’s oral arguments for clarifying legal issues and probing disputes of fact, but declined to permit witness examination because Applicant did not specify what additional evidence the witnesses would provide or why the written record was inadequate. - Decided oral proceedings would be limited to oral arguments of parties’ counsel and would be held in private, having granted Applicant anonymity. - Parties were notified on October 16, 2024; oral arguments heard on November 11, 2024. ### Applicant’s principal contentions - Applicant’s written and oral pleadings include the following principal contentions: - In returning to Fund staff after nearly six years on Board staff, Applicant should have been able to maintain her Board grade and salary. - Applicant was subjected to an individual decision and an outdated rule that severely penalizes those who return to Fund service before completing six full years of Board employment. - Despite the terms of the six-year rule, the Fund has long had a practice of permitting reintegration of Board staff with less than six years’ service into Fund staff on bespoke arrangements that preserve their Board grade and salary. - Both the ED and the then HRD Director acted arbitrarily, capriciously, and vindictively in refusing Applicant’s requests to use leave accrued during her Board service to meet the six-year mark to retain her Board grade and salary. - The then HRD Director took an administrative act when she decided the terms on which Applicant would rejoin the Fund staff. - Applicant’s Board service was “continuous” and far surpassed six years, with only a single brief involuntary break in service in 2014-2015; Applicant contends her 65-day gap at the end of her Board service is de minimis. - EBAP/86/169 “severely penalizes employees who transfer from the Executive Board’s staff to the regular Fund staff before completing six (6) full years of continuous Board service.” Applicant contends the rule was unfairly interpreted and applied in her case. *Source: IMF Administrative Tribunal material (j2024-5).* ### 8. Applicant seeks as relief: ### j2024-5 - 8. Applicant seeks as relief: ### Applicant’s requested relief - Conversion of 65 days of Applicant’s unused annual Board leave (to cover the period June 1 – September 1, 2021) to satisfy the six-year requirement of EBAP/86/169. - Rescission of Applicant’s existing Fund staff contract and terms of reference, and replacement by a new, backdated Fund staff contract allowing Applicant retroactively to: - (i) maintain her employment as a Grade A8 employee; - (ii) receive the same salary she did prior to returning to the staff of the Fund; and - (iii) receive the full pension credit and rights she would have received before the downgrade. - Three years’ salary as moral and intangible damages. - All retroactive salary increases and benefits to which Applicant would have been entitled had her grade and salary not been reduced. - Legal fees and costs, which the Tribunal may award, in accordance with Article XIV(4) of its Statute, if it concludes that the Application is well-founded in whole or in part. ### Respondent’s principal contentions - Applicant did not meet the requirement of six years of “continuous service” with the Board as prescribed by EBAP/86/169 to maintain her Board grade upon transfer to Fund staff in 2021. - The governing rules, as set out in the OED Handbook, grant EDs broad discretion to make employment decisions in their offices, including to terminate an Assistant’s employment and to grant or refuse leave requests. - Employment decisions taken by EDs are subject to only limited review by the Tribunal. - The decisions of the ED that Applicant seeks to challenge were considered and rational decisions and were taken in the lawful exercise of the ED’s discretion. - The then HRD Director’s engagement with Applicant following termination of her Board appointment was not an administrative act subject to challenge. - The then HRD Director had no authority to instruct the ED to extend Applicant’s employment as Board staff. - The then HRD Director’s noninterference with the straightforward application of EBAP/86/169 was not a challengeable administrative act. - If Applicant’s challenge to any inaction on the part of the then HRD Director is admissible, that inaction arose after Applicant rejoined Fund staff and represented the lawful exercise of the then HRD Director’s discretionary authority. - Applicant offers no evidence to overcome the presumption of legitimacy of the then HRD Director’s refusal to grant exception to the governing rule set out in EBAP/86/169; Applicant was treated in the same way as other employees similarly situated and presents no evidence of discrimination. - Article XX of the Tribunal’s Statute, which precludes challenges to administrative acts pre-dating the entry into force of the Tribunal’s Statute, bars any challenge by Applicant to EBAP/86/169. - If the Tribunal decides that it has jurisdiction over a regulatory challenge in this case, it should uphold EBAP/86/169 as a reasonable exercise of the Board’s policy-making discretion. ### Consideration of the issues — framing and jurisdiction - Principal merits question: whether the Fund wrongfully denied Applicant the opportunity to retain her Board grade and salary when she transferred to Fund staff in 2021. - Tribunal’s analytical approach: - First, consider Applicant’s challenges to decisions of the ED under Article II(2)(c)(ii) of the Tribunal’s Statute (status as a “current or former assistant to an Executive Director”). - Second, consider Applicant’s challenges to decisions of HRD (including the then HRD Director) under Article II(2)(c)(i) of the Tribunal’s Statute (status as a “member of the staff”). - Third, address whether Applicant has raised an admissible challenge to a “regulatory decision” governing assistants’ transfers (i.e., EBAP/86/169). - Finally, consider whether Applicant’s re-entry to Fund staff complied with principles of fair treatment. ### Applicant’s challenges to decisions of the ED — scope - The Applicant does not challenge the ED’s decision to terminate her Board employment effective May 31, 2021; she expressly disclaims seeking reinstatement to Board staff and instead seeks protection of professional standing upon transfer to Fund staff. - The challenged ED decisions relate to the denial of post-termination requests to extend Board employment, via accrued annual leave, to meet the six-year requirement of EBAP/86/169 so as to maintain Board grade and salary upon transfer. ### Standard of review for ED employment decisions - This case is the first in which the Tribunal’s jurisdiction ratione personae is founded in part on Article II(2)(c)(ii). - Legislative history and the Commentary on the Statute: - Article II(2)(c)(ii) was intended to give assistants to Executive Directors recourse to the Tribunal because they are employees of the Fund but not considered staff members. - The Tribunal must take into account the special legal framework applicable to assistants—comparable treatment in some respects, different rights in others. - Article III requires application of the internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review of administrative acts. - Respondent’s position: employment decisions by EDs are subject to limited review and deserve deference; discretionary decisions can be overturned only if shown to be “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.” - Tribunal conclusion on standard: in reviewing challenges arising under Article II(2)(c)(ii), the Tribunal will account for the distinct employment framework governing Board staff while applying generally recognized principles of international civil service law. ### Whether the ED abused his discretion in denying the post-termination leave requests - Factual record: - Applicant sought to use accrued annual leave in the amount of 65 days to reach six years’ Board service required by EBAP/86/169, paragraph 2(c). - Applicant emailed the ED on June 9, 2021, and renewed the request on June 11, 2021; the ED responded that the termination decision was final and that it would not be appropriate to expend the office’s budget to permit Applicant to take accrued leave to meet the six-year threshold; he suggested contacting the Secretary’s Department or HRD. - Applicant does not dispute that the attempt to renegotiate timing of separation occurred after the effective date of her transfer to Fund staff on June 1, 2021. - The Fund’s rules provided for Applicant to carry her leave balance with her when she transferred to Fund staff. - Parties’ arguments: - Applicant: the ED’s budgetary rationale was “entirely specious, arbitrary and capricious,” asserting leave was already earned and paid for by the ED’s office and that similar requests had been granted for other assistants. - Respondent: the ED’s decision was rational and properly motivated; the ED explained his budgetary reasoning and was concerned about use of office resources following termination. - Tribunal findings and conclusion: - Applicant has not shown the ED had authority to approve leave requests after her Board appointment had ceased. - Applicant has not shown the ED had any obligation to reverse the termination decision to grant those requests. - Applicant’s assertions that other assistants received similar accommodations are unsupported by evidence. - The timing of Applicant’s transfer (effective June 1, 2021) means any accommodation would have been outside the ED’s authority given the separate employment frameworks for Board staff and Fund staff. - Applying the deferential standard for managerial discretionary decisions vested in EDs, the Tribunal concludes Applicant has not shown the ED abused his discretion by denying post-termination requests to use accrued annual leave to meet the six-year requirement of EBAP/86/169; the ED’s decision was not shown to be arbitrary, capricious, or otherwise an abuse of discretionary authority. *The Tribunal (judgment excerpt).* ### 73. Applicant has emphasized in her written and oral pleadings that the focus of her complaint ### j2024-5 - 73. Applicant has emphasized in her written and oral pleadings that the focus of her complaint ### Applicant’s stated complaints and legal basis - Applicant challenges HRD decisions that determined she would not retain her Board grade and salary when she returned to Fund staff on June 1, 2021. - Applicant’s asserted errors and abuses: - (a) HRD erred in construing EBAP/86/169 to conclude Applicant had not completed six years of “continuous service” with the Board prior to her 2021 transfer to Fund staff. - (b) The then HRD Director abused her discretion in denying Applicant’s post-termination requests to use accrued annual leave to bridge her to six years of Board service. - (c) The then HRD Director abused her discretion in declining to make an exception to the six-year requirement of EBAP/86/169 so that Applicant might retain her Board grade and salary upon re-entry to Fund staff. ### Respondent’s procedural and merits positions - Respondent raised objections to admissibility of Applicant’s challenges and, alternatively, argued they fail on the merits. - Respondent’s key contentions: - The setting of Applicant’s grade and salary was “automatic” by operation of EBAP/86/169, paragraph 2(b), thus not an admissible challenge to an “administrative act.” - The then HRD Director had no authority to instruct the ED to extend Applicant’s Board employment or to overrule the ED’s termination decision. - Deference to managerial discretion is heightened where a rule has no provision for exception. ### Tribunal’s admissibility conclusions - The Tribunal found that application of Fund law to individual staff circumstances is an “administrative act” reviewable by the Tribunal under Article II of the Tribunal’s Statute. - A challenge to the interpretation or application of rules governing grade and salary in an individual case is admissible. - The Tribunal concluded that Applicant raised an admissible challenge to HRD’s interpretation and application of EBAP/86/169 in her case. - The Tribunal also concluded that the then HRD Director’s omission (declining Applicant’s request after a July 6, 2021 meeting and a July 27, 2021 follow-up) constituted an “administrative act” for admissibility purposes. ### Tribunal findings on the merits — (1) Did HRD err in construing EBAP/86/169 on “continuous service”? - Relevant facts and contested dates: - Applicant returned to Fund staff on June 1, 2021; her Board service terminated on May 31, 2021. - EBAP/86/169, paragraph 2(b) governs resumption at prior Fund grade and salary; paragraph 2(c) applies if six years of “continuous service” had been completed and would have permitted retention of Board-acquired grade and salary for two years. - Applicant asserted she had “served the Board for a total of 13 years,” with a single “brief and involuntary break” entailing a transfer to Fund staff for sixteen months during 2014-2015. - Applicant sought to use 65 days of accrued annual leave to bridge to the six-year threshold; Applicant had 120 days of accrued leave and sought conversion of 65 days in earlier pleadings. - Applicant alleged failure to receive 60 days’ notice from the ED; Respondent cited the rule that “[t]he notice period will cease upon the effective date of an OED Employee’s subsequent . . . appointment or reassignment to the Fund staff . . . .” - Tribunal’s conclusions: - The Tribunal concluded Applicant did not establish that HRD erred in construing EBAP/86/169 to determine she had not completed six years of “continuous service” prior to her 2021 transfer. - The Tribunal found Applicant’s later contention that the 2014-2015 involuntary transfer should not break “continuous service” was inconsistent with earlier pleadings and contemporaneous requests to bridge service by using accrued leave. - The Tribunal rejected arguments that 60 days’ notice, 65 days of shortfall, or de minimis considerations required counting additional time toward the six-year threshold absent a rule or obligation to do so. ### Tribunal findings on the merits — (2) Did the then HRD Director abuse discretion in denying post-termination leave requests? - Procedural facts: - Applicant requested use of 65 days of accrued annual leave from the ED in June 2021 and then from the then HRD Director on July 6, 2021 (with follow-up July 27, 2021). - Tribunal’s conclusions: - Given Fund governance, only the ED could take a termination decision or grant a leave request for an assistant in his office; the then HRD Director lacked authority to require the ED to extend Applicant’s Board appointment after termination. - The ED did not have authority to grant such requests once Applicant’s employment with the ED’s office had ceased on May 31, 2021; Applicant did not make requests to the then HRD Director until more than a month later. - The Tribunal concluded Applicant did not show that the then HRD Director abused her discretion in denying the post-termination requests to use accrued annual leave to bridge to six years of Board service. ### Tribunal findings on the merits — (3) Did the then HRD Director abuse discretion in declining to make an exception to the six-year rule? - Applicant’s arguments for exception: - Applicant asserted a Fund practice of permitting reintegration “under bespoke arrangements that preserve [Board staff] grade and salary” and cited her own 2014 reintegration as an example. - Applicant argued the then HRD Director should have been flexible because the transfer to Fund staff in 2021 resulted from termination of her Board appointment rather than a Fund staffing need. - Respondent’s counterpoints: - The earlier exception in Applicant’s career was in “materially different” circumstances involving “extraordinary efforts to protect her from a harmful situation” in the ED’s office. - Respondent submitted Applicant did not show differential treatment compared with similarly situated employees. - Tribunal’s conclusions: - The Tribunal found Applicant provided no evidence she was treated differently from similarly situated assistants deemed not to have completed six years. - The Tribunal concluded Applicant had not shown that the then HRD Director abused her discretion in declining to make an exception to EBAP/86/169’s six-year requirement. ### Overall Tribunal conclusion on challenged HRD actions - The Tribunal concluded: - Applicant did not show HRD erred in construing EBAP/86/169 regarding six years of “continuous service.” - Applicant did not show the then HRD Director abused her discretion in denying the post-termination leave requests to bridge to six years of service. - Applicant did not show the then HRD Director abused her discretion in declining to make an exception to EBAP/86/169’s six-year requirement to preserve Board grade and salary upon re-entry to Fund staff. *Source: International Monetary Fund Administrative Tribunal judgment (j2024-5).* ### 102. In its admissibility Judgment, the Tribunal expressly left open the question of whether ### j2024-5 - 102. In its admissibility Judgment, the Tribunal expressly left open the question of whether ### Admissibility — nature of Applicant’s challenge - Applicant challenged an individual decision taken pursuant to a regulatory decision (Article II(2)(b) definition retained). - Applicant did not seek annulment of EBAP/86/169 in toto; she sought to avail herself of its benefits and challenged aspects of its application. - Primary benefit already availed: ability to return to Fund staff upon termination of an appointment as an assistant to an ED. - Secondary benefit at issue: retention of Board grade and salary for two years upon reintegration into Fund staff for assistants who have completed six years or more of continuous Board service. - Applicant contests the six-year continuous service requirement of EBAP/86/169, which resulted in her return to Grade A6 effective June 1, 2021. - Applicant’s characterizations of the six-year rule (quoted from Applicant): - “severely penalizes employees who transfer from the Executive Board’s staff to the regular Fund staff before completing six (6) full years of continuous Board service.” - “makes Board service an extreme gamble.” - a “forced trade” providing “temporary security in [the staff member’s] employment, in return for a chunk of [their] salary.” - a “random test lacking any connection with proper Fund business purposes.” - Respondent framed Applicant’s complaint as dissatisfaction with the application of the policy and as a regulatory challenge to the Board’s 1986 decision. - Tribunal conclusion: Applicant is contesting the six-year rule itself and its implementation in her case; she seeks to challenge the six-year continuous service requirement of EBAP/86/169 as a “regulatory decision.” ### Article XX temporal bar to challenging pre-1992 rules - Respondent’s position: challenge to the six-year rule (adopted in 1986) is precluded by Article XX of the Tribunal’s Statute, which bars challenges to decisions taken before the Statute’s effective date of October 15, 1992. - Article VI(2) of the Statute: “the illegality of a regulatory decision may be asserted at any time in support of an admissible application challenging the legality of an individual decision taken pursuant to such regulatory decision.” (Tribunal noted that Article VI(2) is “subject to the provisions of Article XX.”) - Tribunal jurisprudence cited: - a complaint about a rule that came into force before October 15, 1992, is not sufficient to give rise to jurisdiction otherwise absent. - the general proviso of Article VI(2) is subject to the lex specialis of Article XX. - Facts accepted by the Tribunal: - the six-year requirement has been part of EBAP/86/169 since 1986. - Applicant provided no evidence that the rule was reviewed or revised within the Tribunal’s period of jurisdiction; Applicant emphasized the rule has stood unchanged since adoption. - Tribunal conclusion: insofar as Applicant seeks to challenge the regulatory decision requiring six years of continuous Board service to retain Board-acquired grade and salary for two years, that challenge is barred by Article XX of the Tribunal’s Statute. ### Fair treatment in Applicant’s re-entry to Fund staff - Legal and factual context: - Separate employment frameworks govern Board personnel and Fund staff; frameworks are discordant (e.g., OED employees not subject to formal performance management applied to Fund staff; ED may terminate an assistant “at any time and for any reason the Executive Director considers sufficient”). - Re-entry from Board staff to Fund staff is a shift between regimes, not an ordinary transfer; application of the six-year rule can be especially harsh when a staff member is nearing the six-year mark. - Applicant had an unusual 2014–2015 course of events when, just short of six years, she had been permitted to maintain Board grade and salary upon transfer to Fund staff. - Procedural and managerial expectations: - The Fund had an obligation to treat Applicant in accordance with fair and reasonable procedures applicable to Fund staff when transferring her between regimes. - Coordination and consultation were required before the transfer became effective to ensure the staff member was fully apprised of consequences (grade and salary) and afforded opportunity to seek accommodations. - Possible accommodations include exploring budgetary arrangements between the Board and the Fund to allow expenditure of accrued annual leave so the staff member could meet the six-year requirement prior to transfer becoming effective. - Tribunal findings on what occurred: - Applicant’s requests to use accrued annual leave to extend Board appointment to meet the six-year requirement were denied; neither the ED nor the then HRD Director abused discretion in denying such requests given timing after termination and lack of authority to grant them. - The Fund did not abuse discretion in construing EBAP/86/169 to conclude Applicant had not completed six years of “continuous service” by May 31, 2021, nor was it required to make an exception in her favor. - However, the Tribunal found the Fund failed to engage proactively with Applicant before the transfer became effective to: - ensure she was fully aware of consequences of re-entry to Fund staff; - provide opportunity to seek accommodations (e.g., expend accrued annual leave); - coordinate possible approaches to cushion effects of abrupt change in employment status as her Board service approached the six-year threshold. - Record specifics and irregularities noted: - No explanation for why the letter associated with Applicant’s September 1, 2015 transfer to Board staff (following a sixteen-month period on Fund staff in 2014–2015) was not issued until April 20, 2016 — raising questions about adequacy of notice. - The May 10, 2021 email appears to have served as the written notification contemplated by OED Handbook, Part III.E.4, which calls for written notice specifying final date of service. - OED termination framework prescribes a 60-day notice period, but that notice “will cease upon the effective date of an OED Employee’s subsequent . . . appointment or reassignment to the Fund staff . . . .” - Tribunal conclusion on fair treatment: - The Fund was required to engage proactively and to allow the Applicant the opportunity to raise with human resources officials possible approaches to mitigate adverse impact; it failed to do so. - For this lapse of fair treatment, Applicant is entitled to relief. - Tribunal’s ultimate conclusions: - Applicant did not show the Fund abused its discretion in denying retention of Board grade and salary when she transferred in 2021. - Nonetheless, Applicant’s re-entry to Fund staff was not undertaken fully in accordance with principles of fair treatment. ### Remedies — remedial authority and compensation for procedural failure - Tribunal’s remedial authority for challenges to individual decisions is Article XIV(1) of the Tribunal’s Statute; text retained in reasoning: if the Tribunal concludes an application challenging legality of an individual decision is well-founded, it shall prescribe rescission of such decision and measures required to correct effects, including payment of money. - Tribunal jurisprudence recognizes remedial power to: - reject an application challenging legality of an individual decision while finding the Fund liable in part for procedural irregularity in reaching an otherwise sustainable decision; and - award “compensation for intangible injury to correct the effects of procedural failure in the taking of a sustainable decision.” - Application to present case: - Although the underlying decision to deny retention of Board grade and salary was sustainable, the Tribunal found procedural failings in the Fund’s handling of the transfer (failure of managerial pro-activeness, lack of proactive engagement, irregularities in notice). - These procedural failures warrant compensation for intangible injury. - Immediate remedial posture: - Tribunal concludes Applicant is entitled to relief for failure of fair treatment and that such failure warrants monetary compensation for intangible injury (further remedy specifics to follow under “A. Monetary compensation for intangible injury”). *The Tribunal's judgment.* ### 132. Intangible injury ordinarily arises when the Fund “fails through inaction to discharge a duty ### j2024-5 - 132. Intangible injury ordinarily arises when the Fund “fails through inaction to discharge a duty ### Findings on intangible injury and fair treatment - Intangible injury “ordinarily arises when the Fund ‘fails through inaction to discharge a duty imposed by its written law or by general principles of international administrative law, such as the obligation to take decisions in accordance with fair and reasonable procedures.’” - The Tribunal’s approach is to “identify the injury and assess its nature and severity, giving due weight to factors that may either aggravate or mitigate the degree of harm to the applicant.” - In the present case, the injury identified was the Fund’s failure to afford Applicant a fair opportunity, before the cessation of her Board employment, to explore options to mitigate the effects of the termination and transfer upon her grade and salary under the law of the Fund. - Fund officials displayed a “degree of indifference to Applicant inconsistent with fundamental fairness to staff.” - The record raises questions as to the adequacy of the notice provided to Applicant concerning the effect of the governing rules. - The Tribunal noted that Applicant had received the primary benefit of EBAP/86/169 by resuming employment as a Fund staff member following termination of Board employment; the unfair treatment related to a secondary benefit of EBAP/86/169 (retaining one’s Board grade and salary for two years following return to Fund staff), available only to employees who have completed six years of “continuous service” with the Board. ### Compensation for intangible injury - Considering the nature and severity of the harm and the factors mitigating and aggravating it, the Tribunal set compensation for the intangible injury caused by the Fund’s failure to treat Applicant fairly in relation to her 2021 re-entry to Fund staff at $20,000. ### Legal fees and costs: statutory basis and proportionality - Article XIV(4) of the Tribunal’s Statute authorizes awards of legal fees and costs where the Tribunal concludes that an application is well-founded in whole or in part; awards may be “totally or partially borne by the Fund,” taking into account: the nature and complexity of the case, the nature and quality of the work performed, and the amount of the fees in relation to prevailing rates. - Applicant sought legal fees and costs in the amount of $37,646.63, of which $4,068.66 is attributable to preparation of Applicant’s Objection to the Motion for Summary Dismissal. - The Tribunal applies a “principle of proportionality” when an applicant prevails in part, weighing the degree of success, the “relative centrality and complexity” of claims, and the role of counsel’s record in forming the basis for the Tribunal’s conclusions. - The Tribunal recognized the case presented “novel issues pertaining to Board employment, and the transition from Board to Fund employment,” and that the record assembled and argued by Applicant’s counsel was instrumental to the Tribunal’s findings. ### Specific awards for legal fees and costs - For the merits phase: the Tribunal concluded Applicant did not prevail on her principal claim but did succeed in demonstrating failure of fair treatment; the Tribunal awarded Applicant 70 percent of her legal fees and costs incurred in pleading her case on the merits. - For the admissibility phase (Motion for Summary Dismissal): the Tribunal awarded Applicant the full measure of legal fees and costs incurred in pursuing her successful Objection to the Motion for Summary Dismissal. - The total sum of legal fees and costs awarded to Applicant is $27,573.24. ### Tribunal decision (summary of operative rulings) - The Administrative Tribunal of the International Monetary Fund unanimously decided: - The Fund’s decision to deny “XX” the opportunity to retain her Board grade and salary when she transferred to Fund staff in 2021 is sustained. - “XX”’s re-entry to Fund staff was not undertaken fully in accordance with the principles of fair treatment to which staff members of the Fund are entitled; to correct the effects of that intangible injury, “XX” is awarded compensation in the sum of $20,000. - The challenge to the six-year requirement of EBAP/86/169 as a “regulatory decision” of the Fund is inadmissible on the basis of Article XX of the Tribunal’s Statute, which bars challenges to decisions pre-dating the Statute’s effective date. - The Fund shall pay “XX” 70 percent of the legal fees and costs incurred by “XX” in pleading her case on the merits, plus the full legal fees and costs incurred by “XX” in successfully responding to the Fund’s Motion for Summary Dismissal; the total sum awarded is $27,573.24. - Signatories in the Decision: Nassib G. Ziadé, President; Maria Vicien Milburn, Judge; Andrew K.C. Nyirenda, Judge; Registrar signature: Paul Jean Le Cannu. - Location and date of Decision: Washington, D.C., December 30, 2024. --- _Source: https://www.imf.org/-/media/files/imfat/j2024-5.pdf_