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					                                        Judgment No. 104


Complaints No. 168, 169,171, 172, and 173
Patricio Duarte, Rosa Romero de Conrad, Alberto Rojas, Aldo Patricio Auda Jelvez, and Patricio
Fernández v. Secretary General of the Organization of American States

THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES,

Composed of Enrique Rojas Franco, President; Alejandro Tinoco, Vice President; and David A.
Gantz, Judge,

Has before it for judgment the proceedings on the complaints filed by Patricio Duarte, Rosa Romero
de Conrad, Alberto Rojas, Aldo Patricio Auda Jelvez, and Patricio Fernández against the Secretary
General of the Organization of American States.

The Complainants were represented by Ovidio Martínez, attorney, and the Secretary General by
William M. Berenson, attorney of the Secretariat for Legal Affairs, all in conformity with Article 22
of the Rules of Procedure of the Tribunal.

WHEREAS:

   I. On May 11, 1989, Patricio Duarte and Rosa Romero de Conrad; on May 15, 1989, Alberto
Rojas and Aldo Patricio Auda Jelvez; and on May 30, 1989, Patricio Fernández filed complaints
against the Secretary General, as authorized by the Statute of the Tribunal. After complying with the
requirements as to the Complainants' personal and official status, their attorney stated, inter alia:

That he is filing the complaints against the decisions of the Secretary General by which the
Complainants' employment in the General Secretariat was terminated.

That the Complainants entered the General Secretariat on the following dates: Mr. Duarte on July 16,
1978, Mrs. Conrad in July 1976, Mr. Rojas in May 1980, Mr. Fernández in April 1975, and Mr. Auda
on July 1, 1977. They were all terminated on December 31, 1988.

That at the time of his termination Mr. Duarte held the post of division chief in the Department of
Regional Development; Mrs. Conrad that of principal specialist, grade M, in the Division of Social
Development Projects; Mr. Rojas that of information technician in the Secretariat to the General
Assembly, the Meeting of Consultation, the Permanent Council, and Conferences; Mr. Auda that of
assistant chief of Division I in the Department of Regional Development, grade N; and Mr. Fernández
that of principal economist in the Department of Regional Development.

That the Complainants' contracts were renewed without interruption.

That on November 19, 1988, the General Assembly approved resolution AG/RES. 954 (XVIII-O/88),
which set guidelines for the execution of the 1989 budget of the Regular Fund and other budgetary
measures related to the reduction of the staff of the General Secretariat.


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That on December 8, 1988, Mr. Auda, and on December 12, 1988, Mrs. Conrad each sent to the
Secretary General a memorandum informing him that they desired to continue in the employ of the
General Secretariat.

That on December 13, 1988, the Director of the Secretariat to the General Assembly, the Meeting of
Consultation, the Permanent Council, and Conferences sent the Director of the Department of Human
Resources a memorandum requesting an extension of the contract of Mr. Rojas, whose work was
essential to the functioning of his office because without it the subject indexes of the General
Assembly, the Meeting of Consultation, and the Permanent Council could no longer be published and
distributed.

That on December 22, 1988, the Assistant Secretary for Management sent letters to Mr. Duarte, Mrs.
Conrad, and Messrs. Rojas and Auda informing them that their contracts would expire automatically
on December 31, 1988, and that no steps had been taken to extend them.

That on December 30,1988, Mr. Duarte; on January 9,1989, Mrs. Conrad; and on December 29, 1988,
Mr. Auda, each filed with the Secretary General a request for a hearing under Staff Rule 112.1. In
their requests, each stated that the termination was unwarranted for the following reasons: (1) the
reasonable expectation, based on their uninterrupted employment in the General Secretariat, that their
contracts would be renewed; (2) their demonstrated efficiency, competence, and integrity in the
performance of their duties; (3) the General Secretariat's objective need to provide for the continuity
of its professional services, as their supervisor repeatedly said. Mr. Duarte also gave as other reasons
the fact that money was available under Fund 27 to cover an extension of his contract and the fact that
he had not been notified reasonably in advance whether or not the contract would be extended. Mrs.
Conrad, for her part, argued that the General Secretariat had not identified the posts to be eliminated
and had terminated her rather than her post, and Mr. Auda also mentioned the need for continuing his
work in order to keep providing services to the member states, and the fact that the General
Secretariat had not identified the posts to be eliminated but had instead singled out the staff members
whose services were to be terminated.

That the Director of the Department of Human Resources informed Mr. Duarte and Mr. Auda on
January 17, 1989, and Mrs. Conrad on January 19, 1989, that "such expiration does not require
action" and that "consequently, since no administrative measure has been taken, the hearing
procedure is not in order."

That a meeting of the Joint Advisory Committee on Reconsideration was requested on January 27,
1989, by Mr. Auda; on January 30, 1989, by Mr. Duarte; and on February 6, 1989, by Mrs. Conrad.

That on February 16, 1989, the Director of the Department of Human Resources wrote to Mr. Duarte
and Mrs. Conrad denying their requests for the following reasons: (1) the Secretary General had
adopted no measure regarding their contract situation; and (2) irrespective of what the Joint Advisory
Committee might recommend, Article 56(d) and the third paragraph of Article 70 of the General
Standards prohibit the payment of an indemnity when contracts of this kind expire, and the renewal of
contracts if the funds necessary are not available. A similar communication was sent to Mr. Auda on
February 22, 1989.



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That on February 27, 1989, the Chairman of the Permanent Council of the OAS wrote to Mr. Rojas
and Mr. Fernández that at its meeting of February 15, 1989, the Council had decided to express its
appreciation for their services to all staff members separated from the General Secretariat as a result
of the staff reduction ordered by the General Assembly.

That the complaint is based on the following:

1. The principles of labor law known as employment continuity and the primacy of reality. Although
the General Secretariat, as the employer, imposed the contract condition of fixed-term employment on
the staff members in their contracts, it was obviously the intention of the two parties to set up an
indefinite, i.e., permanent relationship.

2. General Assembly resolution AG/RES. 954 (XVIII-O/88), adopted on November 19, 1988, which
sets the guidelines for across-the-board application of staff reduction measures. It was for the purpose
of complying with that resolution that the Secretary General decided not to extend the contracts of 72
staff members and to extend those of another 81 until December 31, 1988, fixing those dates in order
to deprive the Complainants of their rights. One piece of evidence showing that the Complainants'
termination was a result of the reduction in force ordered by the General Assembly is the letter from
the Chairman of the Permanent Council to all staff members whose services were terminated, in
which he said that the Permanent Council had decided to convey, to all staff members separated from
the General Secretariat as a result of the reduction in force, its appreciation for their contributions to
the OAS.

3. Article 55 of the General Standards, which provides for an indemnity to be paid by the General
Secretariat to staff members whose services are terminated after they have been employed for at least
one year.

        4. Staff Rule 110.7.

That, specifically, the Complainants seek the payment of eight months' basic salary as indemnity
under Article 55 of the General Standards and Staff Rule 110.7. In addition, they ask to be paid a
reasonable sum for expenses incurred.

   II. On June 29, 1989, the attorney for the Secretary General answered the complaint and stated,
inter alia:

That Complaint No. 171, filed by Mr. Rojas, is inadmissible because he did not exhaust the internal
remedies.

That the Complainants' claim concerning the permanent status of their appointments must be rejected
because they were negligent in asserting their rights (the doctrine of laches). The action is barred by
the statute of limitations. The jurisprudence of the Tribunal has established that presumptive litigants
cannot be left open to a potential suit for an indefinite time, because of the legal uncertainty this
would involve. For that reason, procedures have time limits within which action must be brought or
complaints filed, under penalty of losing those presumed rights because they were not acted upon
(Cheng Hurtado v. Secretary General of the OAS, Judgment No. 79 [1984]).


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That before 1983, Article 16(a) of the General Standards and the Staff Rules stated that permanent
staff members performed duties of a permanent nature.

That by resolution AG/RES. 629 (XII-O/82) the General Assembly established the new Principles of
the Career Service, which severed the link between the permanent nature of an appointment and the
nature of its duties. Under these Principles, beginning in 1982 the right to permanence ceased to
depend on the nature of the duties performed. Thereafter, all staff members with three or more years
of uninterrupted service were given the right to take part in career-service competitions, regardless of
the kind of duties they performed.

That despite the foregoing, none of the Complainants asked for a hearing and reconsideration within
the 15 days prescribed by Chapter XII of the Staff Rules. On the contrary, they all accepted the new
General Standards and Staff Rules and all of them subsequently took part in competitions to join the
career service.

That the Complainants' right to bring action has lapsed because they neglected to do so within the
proper time.

That the Respondent denies that Mr. Auda (Complaint No. 172) joined the General Secretariat in
1977. Mr. Auda received his first three-month contract from the General Secretariat in 1976, and in
August of that year was given a one-year contract, later extended several times. In 1978 he was given
another contract.

That the Complainants' contracts expired on December 31, 1988, under the terms agreed upon with
the General Secretariat.

That under the terms of each of their contracts and of Staff Rules 104.1, 104.3, and 110.2, the
Complainants agreed that their employment would cease on the expiration date set in those contracts,
without any right to indemnity, renewal, advance notice, or conversion to another kind of
appointment. Judgments No. 93, Gómez v. Secretary General of the OAS (1986), and No. 100,
Thomae-Forgues v. Secretary General of the OAS (1988), among others, established that a decision
not to extend a fixed-term contract is unjustified only when it is based on an improper motive. An
improper motive is, for instance, a desire for revenge or the intent to cause injury to a staff member.

That all the Complainants had fixed-term contracts except Mr. Rojas, who worked under temporary
contracts most of the time.

That the Respondent denies that Mrs. Conrad's contracts were routinely renewed, for on January 1,
1982, she received a new appointment to a post financed by one of the Voluntary Funds for technical
cooperation. As for Mr. Rojas, his contracts were not renewed without interruption, for in 1981 and
1982 he was given new temporary contracts after lapses of one month in each instance.

That all the Complainants except Mr. Rojas were hired to work in specific technical assistance
programs. The Complainants Duarte, Auda, and Fernández worked for the Program of Regional
Development and Mrs. Conrad worked first for that Program and later for the Program of Social
Development.


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That the Complainants have failed to show that they performed duties of a permanent nature before
the new Principles of the Career Service went into effect. This is something they bear the burden of
proving, in accordance with the jurisprudence of the Tribunal in Judgment No. 77, Posada v.
Secretary General (1984), and other cases.

That in 1985 and 1988 the Complainants Duarte, Conrad, Auda, and Fernández took part in
competitions to join the career service, and Mr. Rojas did so in 1988. None of them appealed the
Secretary General's decision not to select them.

That the fact that their contracts were not extended because of a general reduction in force or for any
other reason is irrelevant to the payment of an indemnity. The reason is that Staff Rule 110.7(d) and
Article 56 of the General Standards prohibit an indemnity when a fixed-term contract expires.

That the Complainants base their claim to permanence on the labor-law principle according to which
an employee is presumed to be permanent if his duties are permanent and the contract has been
successively renewed. This principle was adopted by the Tribunal in Holzman v. Secretary General of
the OAS, Judgment No. 19 (1976), and other cases.

That, however, the Tribunal also held, in Judgment No. 71, Alvarez v. Secretary General of the OAS
(1983), that the General Secretariat could promote the amendment of the current regulations if it
wanted the flexibility to enter into fixed-term contracts without any limitation as to time and duties.
Consistent with that ruling, the General Assembly in 1983, by resolution AG/RES. 671 (XIII-O/83),
adopted the new Principles of the Career Service, under which the right to permanence depends on
the employee's (1) having been a permanent staff member before December 31, 1982, or (2) having
won a competition to join the career service.

That in keeping with these principles, articles 16 and 17 of the General Standards and the current
Staff Rules do not link permanence with nature of duties or length of service. Only career-service
members are permanent, and no contract staff member, regardless of his duties, may be considered a
member of the career service.

That the Complainants are not permanent because they are not members of the career service. That is,
they were not classified as members of the career service on December 31, 1982, or listed as such in
the Personnel Register for that date. Furthermore, they continued to accept contracts that were not
permanent in nature, carried out their assigned duties during that time, and were paid according to the
terms of those contracts without claiming a right to permanence. As the Tribunal ruled in Alvarez and
in Boullon v. Secretary General of the OAS, Judgment No. 70 (1983), equity dictates that a staff
member who has acted as these Complainants have, may not make claims deriving from the
permanency of his contract for the period covered by this acceptance. He may do so only as from the
moment he sets in motion the internal administrative procedures.

That, however, the Complainants only claimed their right to permanence when they filed their
complaints with the Tribunal in May 1989, by which time they had already ceased to work in the
General Secretariat. Consequently, under no circumstance can they be said to have been permanent as
from December 31, 1982. Nor can they be considered permanent under the General Standards
adopted in 1983, since they never won a competition to join the career service.


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That the fact that the contracts expired in the course of a reduction in force is irrelevant, and the letter
from Ambassador Peters has no bearing on the reason for the separation of the Complainants or on
the payment of an indemnity under articles 55 and 56 of the General Standards and Staff Rule 110.7.
In addition, that letter is incorrect, because the record shows that the Permanent Council asked its
Chairman merely to thank all persons who were leaving the Organization on December 31, 1988.

That the reason why the Complainants' contracts were not renewed is irrelevant so long as there was
no breach of the terms of those contracts.

That Article 56 of the General Standards prohibits the payment of an indemnity when fixed-term
contracts expire on the appointed date. Accordingly, the Secretary General is barred from paying any
indemnity to the Complainants.

That for all the foregoing reasons the Respondent prays that the complaint be dismissed in all its parts
and that the Complainants be ordered to pay the Respondent a reasonable amount for attorney's fees.

  III.   In their reply to the answer, the Complainants stated, inter alia:

That Mr. Rojas's Complaint (No. 171) is admissible because the Secretary General has acknowledged
in similar cases that the hearing and reconsideration procedures were not applicable. This situation is
covered by Article VI.1(b) of the Statute of the Tribunal.

That under the regulations of the General Secretariat and the jurisprudence of the Tribunal, it is not
incumbent on the staff to raise general challenges or bring action against the General Standards, the
regulations issued by the Secretary General, or the resolutions of the General Assembly. The staff
may claim their rights and may take legal action only when the Secretary General has taken a specific
administrative decision that a staff member believes violates his or her rights. All the complaints were
instituted against the administrative decisions by the Secretary General terminating the Complainants'
services. Notice of those decisions was given to the Complainants in December 1988 and they lodged
their complaints in accordance with the Statute and Rules of the Tribunal. Accordingly, the
complaints are admissible.

That what the complaints are arguing is not the nature of the duties (permanent or not) performed by
the Complainants. What they are arguing is that the employment relationship was actually for an
indefinite time and is covered by the principles of the primacy of reality and employment continuity.

That it is not true that Complainants agreed to their termination date. The fact is that their contracts
were for an unlimited time, by virtue of a tacit agreement with the Secretary General.

That the attorney for the Respondent challenges the validity of the letters from Ambassador Peters but
does not challenge the signature they bear.

That the General Standards and Staff Rule 110.7 do not prohibit a termination indemnity in cases
where a contract for an indefinite time is unilaterally terminated by the Secretary General.

   IV. In his response, the attorney for the Respondent reiterated his previous arguments and added,
inter alia:


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That the doctrine of actos propios (one's own actions) does not apply in the case of Mr. Rojas,
because the Secretary General did not tell him that he need not request a hearing and reconsideration.
Furthermore, the Respondent never waived his right to require the other Complainants to exhaust the
internal administrative procedures. Nor was there any agreement to appeal directly to the Tribunal
under Article VI.1(b) of the Statute of the Tribunal.

That the Complainants were indeed negligent in asserting their rights (the laches doctrine). When the
new Principles of the Career Service came into force in 1983, the General Secretariat (1) notified the
staff members listed as permanent in the Personnel Register of December 31, 1982, that they were
permanent, and (2) notified those who were not in the Register that they were trust or contract staff
members. The Complainants accepted this without protest. In subsequent years, moreover, they
received Notifications of Personnel Action informing them of contract extensions and other
administrative actions. In all these documents the Complainants are identified as contract personnel.
They also took part, without raising objections, in the career-service competitions that offered them
the opportunity to become permanent employees, and they did not protest when they were told that
they had noty been selected. On all those occasions, furthermore, the new Principles of the Career
Service were applied to the Complainants without any objection on their part.

That the Complainants have acknowledged the irrelevancy of the nature of the duties.

That in 1971 the General Assembly eliminated contracts for an indefinite time, so that this kind of
contract no longer exists under the internal regulatory system.

  V. On September 8, 1989, pursuant to Article 14.2 of the Rules of Procedure of the Tribunal, the
present case was placed on the list of matters pending consideration.

Once the President had set the opening date for the session, the pertinent steps were taken and the
Tribunal was composed of Enrique Rojas Franco, President; Alejandro Tinoco, Vice President; and
David A. Gantz, Judge. The Tribunal met as scheduled, deliberated on the case sub judice, and
decided, pursuant to articles 17 and 18 of the Rules of Procedure, to take testimony and hold the oral
proceedings requested by the parties on Wednesday, September 27, 1989.

The oral proceedings took place on the date and at the time indicated.

By Resolution No. 224, of October 5, 1989, the Tribunal decided to join the complaints filed by
Patricio Duarte, Rosa Romero de Conrad, Alberto Rojas, Aldo Patricio Auda Jelvez, and Patricio
Fernández.

After the oral proceedings the Tribunal decided that further evidence was not necessary and, pursuant
to Article 25 of the Rules of Procedure, designated David A. Gantz to draft the judgment.

Having examined the proceedings, the Tribunal now

CONSIDERS:

I. COMPETENCE

     1. The Tribunal is competent to hear these complaints, pursuant to Article II of its Statute.

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     2. The question of jurisdiction has been raised only with regard to the action of the Complainant
Rojas; in that action the Secretary General has alleged that jurisdiction is lacking, since Rojas did not
exhaust his administrative remedies. A failure to exhaust administrative remedies is a bar to this
Tribunal's exercise of jurisdiction under Article VI.1(a) of the Statute. However, in this instance, the
Tribunal believes that Rojas was justified in concluding that no administrative remedy existed, since
the General Secretariat had already so informed four Complainants in identical situations.

The Complainants Duarte, Romero, Auda, and Fernández had earlier sought a hearing from the
Secretary General regarding the expiration of their contracts, under Staff Rule 112.1. However, the
Secretary General told them that a contract expiration was not an "administrative measure" subject to
a hearing. There is no allegation now by the Secretary General that he would have acted differently in
his case and granted the request if Rojas had requested a hearing.

In the light of this decision by the Secretary General in four identical cases, and the complete absence
of any indication that the result would have been different in Rojas' case, it clearly would have been
futile for the Complainant Rojas to submit an identical request, in the virtual certainty that it would be
rejected. For the Tribunal to insist on such action would border on accepting defenses "based on
formalities that are not essential," which we rejected in Posada v. Secretary General of the OAS,
Judgment No. 77 (1984), at 12.

Rather, the Tribunal concludes that for purposes of Rojas's complaint no "procedures provided in the
General Standards or in other existing provisions" (Article VI.1(a) of the Statute) were available at
the time of filing this complaint with the Tribunal, and consequently that the Tribunal is competent to
hear the Rojas complaint as well as the four others joined hereunder.

II. SUBSTANCE OF THE CASE

     3. All the parties in this proceeding appear to agree that any obligation of the Secretary General
to pay severance pay to the Complainants under Article 55 of the General Standards and Staff Rule
110.7 depends on the status of the Complainants as employees of the organization. If they are
considered limited-time employees under articles 16(a) and 18 of the General Standards, severance
benefits are barred in accordance with Article 56(d) of the General Standards and Staff Rule
110.7(d)(iii). If, notwithstanding the history of successive fixed-term contracts, the Complainants are
considered permanent staff members, they are entitled to severance benefits (eight months' salary)
under Article 55 of the General Standards and Staff Rule 110.7(a).

     4. The Tribunal's conclusion that the Complainants are not permanent staff members entitled to
severance benefits is based on an analysis of the applicable General Standards and Staff Rules, the
historical background to those regulations, and the previous jurisprudence of the Tribunal.

       A. Development of the current General Standards and Staff Rules

      5. As the record in this proceeding indicates, prior to 1982 a staff member's status was based on
the nature of his duties. If he could show, notwithstanding his formal status as a contract employee,
that his services were permanent in nature, he would be considered a permanent staff member,
entitled to the benefits of such upon termination. Thus, in Holzman v. Secretary General of the OAS,
Judgment No. 19 (1976), Holzman was able to show that his tenure was based on a series of fixed-
term contracts, his duties as a translator were permanent in nature, entitling him to the benefits
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afforded to the Organization's permanent staff at the time. At that time, Article 16 of the General
Standards specified that there would be an "international career service for the performance of
permanent functions of the General Secretariat."

In Posada v. Secretary General of the OAS, Judgment No. 77 (1983), the Tribunal stated:

. . . The mere act of having signed successive contracts for short periods of time does not relieve the
Organization of the obligation to comply with the Standards, and such contracts, added up in time,
become a single contract, permanent in nature, for the purposes of the Standards. But in order for that
contract to be in fact permanent, it must be demonstrated that the work performed by the person
concerned is of the kind that the Organization considers permanent. . . .

    6. However, under that approach, a series of fixed-term contracts alone was insufficient to show
permanent status. The burden was on the staff member to show that the work performed was
permanent in nature rather than confined to defined projects, a burden Complainants often failed to
meet; see Posada and Boullon v. Secretary General of the OAS, Judgment No. 70 (1983).

      7. The Tribunal followed Holzman in Alvarez v. Secretary General of the OAS, Judgment No.
71 (1983), with the reasoning again based not only on general principles of labor law but on the fact
that in the then-current Staff Rules, a staff member's job status was still defined on the basis of the
nature of his duties. However, having consistently rebuffed the Organization's efforts to disguise
permanent employment through a series of temporary, fixed-term contracts, the Tribunal in Alvarez
made a suggestion to the General Secretariat:

If the General Secretariat is convinced that the administration of the Organization of American States
is better served by having the freedom to make fixed-term contracts without any limits as to time or
as to the functions performed by the persons contracted, it may promote an amendment to the existing
Standards, for which the simple administrative act of changing the Staff Rules would suffice.

     8. In response to this none-too-subtle suggestion, and to resolution AG/RES. 629 (XII-O/82),
new General Standards were adopted in 1983, as ratified by the General Assembly in resolution
AG/RES. 671 (XIII-O/83). The Staff Rules were then modified accordingly. The linkage between
permanency of employment and permanency of function was eliminated, and the new Article 16
authorized only three forms of employment:

        a. Permanent personnel, who shall make up the Career Service;

       b. Personnel on contract for a limited time, and

       c. Personnel of trust appointed at the discretion of the Secretary General. . . .

Moreover, Article 17 provides in pertinent part that "There shall be no permanent personnel other
than the Career Service personnel."

       9. The Tribunal need not decide whether these changes were good policy; they apparently
reflected concerns shared by the member states of other international organizations and budgetary
realities at the OAS imposed by the member states. In any event, it is evident from them and from the
record that both the General Secretariat and the Organization's supreme body, the General Assembly,

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had endorsed the concept of "freedom to make fixed-term contracts without any limits as to time or as
to the functions performed by the persons contracted . . ." as set out in Alvarez.

B. Qualifying for the career service

    10. Once these changes were implemented, an existing OAS staff member was considered a
member of the career service only if he was listed as permanent in the Personnel Register on
December 31, 1982, or if he later qualified through a competition:

All staff members of the Organization that appear as permanent employees in the Personnel Register
as of December 31, 1982, belong to the career service, as well as those who enter it in accordance
with provisions stated under Title II--Entry and Promotions. (AG/RES. 629 (XII-O/82))

None of the Complainants alleges that he was a member of the career service as of December 31,
1982, or that he has qualified through competition since that time. Nor has any of these Complainants
(at least up to now) challenged through the internal administrative procedures or before this Tribunal
either his exclusion from the permanent employee list of the Personnel Register or his denial of
permanent status through a competition.

     11. The record contains much discussion of whether the Complainants are now barred from such
challenges by laches, the statute of limitations, or some similar doctrine, or, indeed, whether any or all
of the Complainants could have qualified as permanent staff members because they performed
permanent functions, as defined in the pre-1983 General Standards and Staff Rules and in the
jurisprudence of this Tribunal. However, the Tribunal need not decide those issues. Even assuming,
arguendo, that the Complainants could now file a timely action challenging one of these
administrative decisions and (in the first instance) meet the Alvarez standard, their permanent status
would not be effective before the date on which their allegations of status as permanent staff members
were made through the internal administrative procedures, i.e., after their contracts expired on
December 31, 1988. As this Tribunal noted in Alvarez:

This Tribunal has also established that where a Complainant has continued to accept nonpermanent
contracts and has continued to perform the duties specified in those contracts and to receive the
corresponding emoluments, equity prevents him from making any claims deriving from the
permanency of his contract for the period of time that he continued to accept these appointments. It is
only after he puts into motion the procedure established in the Standards for reconsideration of the
measures taken by the General Secretariat that he has a right to the legal consequences of his situation
as a permanent staff member.

While three of the Complainants in this case filed requests for hearing and reconsideration under
Chapter XII of the Staff Rules in the final days of December 1988 and in January 1989, none
apparently alleged status as permanent employees under the pre-1983 standards prior to the filing of
these actions with the Tribunal in May 1989.

C. The discretion of the Secretary General

     12. Under these circumstances, the alleged reason for allowing the Complainants' contracts to
expire--a reduction in force--is essentially irrelevant unless the actions (or non-actions) can be shown
to be an abuse of the Secretary General's discretion. Recent jurisprudence of the Tribunal has
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confirmed the general proposition that the Secretary General has broad discretion as to whether he
will renew a fixed-term contract or allow it to expire. In Gómez v. Secretary General of the OAS,
Judgment No. 93 (1986), the Tribunal held in pertinent part as follows:

As to the renewal of the fixed-term contract between the Complainant and the OAS, the Tribunal
finds that the Secretary General's decision not to renew it was taken in the legitimate exercise of his
discretionary authority.

       13. Of course, the Secretary General's discretion is not unlimited. In Gómez, the Tribunal
reviewed the circumstances of the non-renewal for an employee whose presence had been disruptive
and, on occasion, violent, in determining that the exercise of discretion was proper. In Thomae-
Forgues v. Secretary General of the OAS, Judgment No. 100 (1988), this Tribunal held that despite
the absence of any right of compensation for the expiration of a fixed-term contract, "that power, like
all discretionary authority, is always limited by reason of circumstance, advisability, logic, rationality,
and fairness." The Tribunal notes that in Gómez and Thomae-Forgues, the Tribunal ordered the
payment of an indemnity for violations of due process, but not as a result of the expiration of the
fixed-term contract, which in each instance was considered within the Secretary General's discretion.

However, in the present complaints there has been no similar allegation of unreasonable or improper
motives, or of an action that amounted to a denial of due process, that would justify an exception to
the Secretary General's otherwise broad discretion.

D. Applicable rules of law

      14. Finally, the attorney for the Complainants has argued that general principles of labor law
require this Tribunal to find that a series of fixed-term contracts establishes a permanent employment
relationship, notwithstanding evidence in the General Standards, Staff Rules, and jurisprudence of
this Tribunal to the contrary. We disagree. While some members of the Tribunal may question the
post-1983 policy of the Organization of maintaining the flexibility of fixed-term contracting for
employees who may in fact remain for extended periods of time, Article II of the Statute limits the
Tribunal's competence to

cases in which members of the staff of the General Secretariat of the Organization of American States
allege nonobservance of the conditions established in their respective appointments or contracts or
violation of the General Standards for the operation of the General Secretariat or other applicable
provisions, including those concerning the Retirement and Pension Plan of the General Secretariat.
(Emphasis added)

We also note that the General Assembly, in creating the Tribunal, considered that:

The existence of such a tribunal would be an effective means of guaranteeing the observance of the
general standards for the operation of the General Secretariat and other provisions relative to the
rights and obligations of the staff members. . ." (AG/RES. 35 (I-O/71), preamble; emphasis added).

      15. These statements, particularly the latter, strongly indicate that the "law" of the Organization
is the General Standards, the Staff Rules, provisions of the Retirement and Pension Plan, the
jurisprudence of this Tribunal, and, of course, to the extent relevant, the Charter and the resolutions of
the General Assembly. To the extent that this body of law is silent or ambiguous, this Tribunal has
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occasionally been required to apply general principles of law to resolve disputes, as it did in Holzman
and similar cases, and to assume the existence of a fundamental right of due process, as in Thomae-
Forgues. However, in this instance, unlike the situation under the pre-1983 General Standards, there
is no silence or ambiguity either in the General Standards or Staff Rules (created in part in response to
the Tribunal's suggestion in Alvarez), or in the intent of the General Assembly and General
Secretariat, or in the subsequent jurisprudence of this Tribunal. Accordingly, we find no general
principle of labor law that takes precedence over the scheme for the treatment of fixed-term
employees established under the 1983 General Standards, which in fact, in Article 56, prohibits the
General Secretariat from paying severance benefits to the Complainants.

By virtue of the foregoing, and pursuant to its Statute, the Tribunal unanimously

RESOLVES:

     1. That the Complainants were "personnel on contract for a limited time" under articles 16.b and
18 of the General Standards.

     2. That, under Article 56(d) of the General Standards and Staff Rule 110.7(c)(iii), the General
Secretariat was prohibited from paying and in fact properly refused to pay severance benefits
specified under Article 55 of the General Standards and Staff Rule 110.7(a).

     3. That these complaints are accordingly dismissed.

     4. That all parties shall be responsible for their own costs and attorney's fees.



Let notification be given.

                                                                      Washington, D.C., October 6, 1989



Enrique Rojas Franco, Esq. / President

Alejandro Tinoco, Esq. / Vice President

David A. Gantz, Esq. / Judge and author of the draft judgment

Martha Braga, Esq. / Secretary




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