Judgment No. 102
Complaints No. 161 and 162
Miguel Tejada Bailly 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 complaint filed by Miguel Lorenzo Tejada Bailly
against the Secretary General of the Organization of American States.
The Complainant was represented by Ovidio Martínez, attorney, and the Secretary General by Regina
Arriaga, attorney of the Secretariat for Legal Affairs, all in conformity with Article 22 of the Rules of
Procedure of the Tribunal.
WHEREAS:
I. On November 30, 1988, the attorney for Miguel Tejada Bailly filed Complaint No. 161 against
the decision taken by the Secretary General on October 5, 1988, to confirm the evaluation made on
August 7, 1987, of the Complainant's performance in the post of principal specialist with the Office of
Coordination for the Commemoration of the Quincentennial of the Discovery of America. The
attorney for the Complainant stated, inter alia:
That on October 1, 1986, the Complainant was transferred from the Department of Scientific and
Technological Affairs to the Office of Coordination for the Commemoration of the Quincentennial of
the Discovery of America.
That on August 7, 1987, James Kiernan, coordinator of that Office, informed the Complainant that the
Director of the Department of Human Resources had asked him to evaluate the Complainant's
performance for the period from March 1 to June 30, 1987. On the same day, Mr. Kiernan sent the
requested evaluation to the Department of Human Resources.
That on the same date the Complainant asked the Director of the Department of Human Resources to
designate a hearing officer in accordance with Staff Rule 105.9(f).
That by a memorandum dated August 13, 1987, the Director of the Department of Human Resources
informed the Complainant that he had designated Sergio Nilo as hearing officer and asked the
Complainant to sign the evaluation form. He also asked the Complainant to make his comments and
discuss them with his supervisor.
That by a memorandum dated September 18, 1987, the Complainant presented his comments to the
hearing officer, alleging that Staff Rule 105.9(b) and the Guidelines for Application of the
Performance Evaluation System had been violated.
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That on September 29, 1987, the Complainant sent another memorandum to the Director of the
Department of Human Resources saying, inter alia, that the document given to him by the Department
was not the original; that on the copy given to him the dates of the meetings held to discuss the
evaluation for December 1986 to February 1987 were mistakenly shown as the dates of the meetings
for the current evaluation; that Mr. Kiernan had not attached any document to substantiate his
unsatisfactory evaluation of the Complainant; that the Complainant had not participated in any phase
of his evaluation and that the evaluation had not been delivered to the Department of Human
Resources until September 21, 1987.
That by a memorandum dated October 8, 1987, the Director of the Department of Human Resources
informed the Complainant that the Department concurred with the conclusions of the hearing officer
and accepted that evaluation as valid.
That on October 23, 1987, the Complainant presented a request for a hearing in accordance with Staff
Rule 112.1 and asked that the evaluation be nullified. On November 6, 1987, the Director of the
Department of Human Resources replied that for the sake of procedural economy, he had decided to
join the request concerning the evaluation with the administrative procedure to which his summary
dismissal might give rise.
That since his request for a hearing had been denied, on November 13, 1987, the Complainant
requested reconsideration under Staff Rule 112.2. On November 18, the Director of the Department
of Human Resources confirmed his decision to join the two proceedings because the evaluation had
been one of the background documents reviewed during the proceedings for summary dismissal.
That, despite the Complainant's repeated opposition, the Joint Advisory Committee on
Reconsideration that had been convened to review the summary dismissal decided it had the authority
to consider the evaluation. The joinder of the two proceedings was an illegal act.
That in its final report, rendered on September 30, 1988, the Reconsideration Committee said it
agreed with the hearing officer that there had been defects in the evaluation procedure.
That Staff Rule 105.9 and other regulations issued by the Secretary General, among them the
Guidelines for Application of the Performance Evaluation System, establishes the formal
requirements for staff evaluations. Those requirements were not observed.
That the Secretary General violated the Complainant's right to due process of law, established in Staff
Rules 112.2 and 112.4.
That in view of the foregoing, the performance evaluation challenged by the Complainant is void ipso
jure.
That, specifically, the attorney for the Complainant prays: (a) that the Tribunal nullify the
Complainant's 1987 performance evaluation and the decisions arising from it that were taken by the
Secretary General; (b) that the evaluation be found void ipso jure and that the Complainant's
personnel file reflects such a decision; (c) that the Tribunal order the Secretary General to pay the
Complainant the sum of US$15,000 as indemnity for the financial and moral injury caused him by the
evaluation damaging to his professional reputation and by its being made public; and (d) that the
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Tribunal order the General Secretariat to pay the Complainant the sum of US$2,000 for attorney's
fees.
II. On January 14, 1989, the attorney for the Secretary General answered the complaint in due
time and proper form and stated, inter alia:
That all the offices of the General Secretariat were to send the performance evaluations for the period
from July 1, 1986, to February 28, 1987, to the Department of Human Resources in April and May
1989.
That on May 22, 1987, Mr. Kiernan completed the evaluation form but did not rate the Complainant's
performance. Since the Complainant was on leave and Mr. Kiernan himself was to depart on official
mission the following day, he left the original of the form, duly signed, on Mr. Tejada's desk with a
note informing him that he should add his comments, sign it and send it to the Department of Human
Resources. He sent a copy of the form and of the note to the Department of Human Resources as well.
That on June 10, 1987, the Secretary General ordered Mr. Tejada's transfer to the post of specialist in
the Office of the General Secretariat in Mexico, to which Mr. Tejada objected for health reasons.
That because the original of the evaluation form had not been received in the Department of Human
Resources, Mr. Kiernan asked Mr. Tejada for it. On July 13, 1987, the latter sent the Department of
Human Resources two evaluation originals. On one, the word "satisfactory" for overall rating was
marked with an "x." That mark was not on the copies of the form sent by Mr. Kiernan.
That later, because the Complainant was being transferred to Mexico, the Department of Human
Resources asked Mr. Kiernan to evaluate him for the period from March 1 to June 30, 1987. The
Complainant received an "unsatisfactory" rating in all areas.
That the hearing officer concluded that there was not sufficient reason to nullify the evaluation, a
conclusion reaffirmed by the Director of the Department of Human Resources.
That in the meantime, on August 20, 1987, on the basis of Staff Rule 110.5, the Secretary General had
instructed the Director of the Department of Human Resources to initiate proceedings for the
summary dismissal of the Complainant on the ground of serious misconduct. This measure was based
on the following charges: "insubordination," "falsification of evaluation papers," and "conduct
contrary to the nature, purposes, and interests of the Organization."
That on November 6, 1987, the Secretary General ordered the summary dismissal of the Complainant,
in consideration of, inter alia, his conduct in the Office of the Quincentennial, including the period
covered in the 1987 evaluation. The General Secretariat therefore thought it appropriate to have a
single Reconsideration Committee hear all the Complainant's claims.
That the Reconsideration Committee concluded that the evaluation had been valid and fair, and the
Secretary General accepted the Committee's report in its entirety.
That Mr. Tejada had an opportunity to discuss the evaluation, to make comments on it, and to sign it.
This is what determines the validity of the evaluation, not necessarily the type of paper signed.
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That the guidelines for the performance evaluation system lays down a procedure involving initiatives
and responsibilities on the part of the supervisor and the supervised. As the hearing officer points out,
Mr. Kiernan complied with 10 of the 12 formal requirements for the supervisor, while Mr. Tejada did
not comply with any of the 9 requirements incumbent on him as the supervised employee.
That there is nothing in the regulations to prohibit the same Reconsideration Committee from hearing
more than one reconsideration request filed by the same staff member. Further, the guarantees of due
process with respect to the Complainant's right to seek redress for a negative evaluation were at all
times protected.
That it would have been unreasonable to convene two committees composed of different people to
take up complaints on related situations, since this would have entailed a costly investment of time
and effort.
That she prays the Tribunal to dismiss the complaint in all its parts.
III.
In their reply and response briefs the attorneys for both sides repeated their arguments.
IV. On January 11, 1989, the attorney for the Complainant filed Complaint No. 162 against the
Secretary General. The attorney stated, inter alia:
That he is filing this complaint against the Secretary General for his decision taken on October 5,
1988, to confirm the decision to summarily dismiss the Complainant, Miguel Tejada Bailly.
That the Complainant has been a permanent staff member since 1974.
That on June 10, 1987, the Complainant was notified of the Secretary General's decision to transfer
him to the Office of the General Secretariat in Mexico and was told that the decision had been made
in consideration of his academic training and extensive professional experience in the Department of
Scientific Affairs.
That on June 23, 1987, the Complainant submitted to the Secretary General a request for a hearing
under Staff Rule 112.1 and attached to it an opinion in which his physician, Dr. José A. Quirós, said
among other things that the transfer was inadvisable because the Complainant has a well-known
history of strokes and hypertension and suffers from altitude sickness.
That on June 24, 1987, the Director of the Department of Human Resources informed the
Complainant that the Secretary General had given instructions that he should undergo a medical
examination by Dr. René Meza, the General Secretariat's physician, in accordance with Staff Rules
104.8 and 107.1 (a)(viii).
That by memorandum dated June 23, 1987, a copy of which was given to the Complainant on
October 1, the Director of the Department of Human Resources informed Dr. Meza that one of the
purposes of the medical examination was to determine whether the Complainant had limitations that
would preclude him from working at high altitudes. He also asked the doctor to send in his report as
soon as he had completed the necessary tests, either by having the Complainant's physician supply
them or by conducting new ones.
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That by memorandum dated July 1, 1987, a copy of which the Complainant received on October 1,
1987, Dr. Meza informed the Chief of Technical Support and Staff Services that the physical and
neurological examinations of the Complainant had revealed no impediment. He went on to say that he
needed the records of the doctors who had been treating the Complainant and of the hospitals where
he had been a patient.
That on July 10, 1987, the Director of the Department of Human Resources sent the Complainant a
memorandum informing him of the results of Dr. Meza's examination. He also asked him to present,
within one week, the medical documents requested by Dr. Meza or to issue an authorization for him
to obtain the information directly from his personal physician and from the hospitals.
That on July 15, 1987, the Complainant sent the Director of the Department of Human Resources a
memorandum saying that it was his understanding that Dr. Meza had already presented a definitive
report. On the same day the Director of the Department of Human Resources replied, informing him,
among other things, that the question was not one of conflicting opinions but of insufficient
justification for canceling the transfer, which the Complainant had to provide by the deadline of July
20, 1987.
That the Complainant continued to supply information in addition to what he had already given to Dr.
Meza, such as documents from Suburban Hospital, the letter from Dr. Quirós, and a letter from
Suburban Hospital to Mr. Tejada.
That by memorandum dated August 20, 1987, the Secretary General instructed the Director of the
Department of Human Resources to institute the procedure for the summary dismissal of the
Complainant, who was notified of this decision on August 24, 1987.
That on October 14, 1987, the Complainant presented a document to the hearing officer, Luis M.
Lizondo, in which, among other things, he proposed that the summary dismissal proceedings were
invalid.
That on November 6, 1987, the Director of the Department of Human Resources sent the
Complainant a memorandum informing him, inter alia, that the Secretary General, pursuant to Article
53 of the General Standards and Staff Rules 110.5, had decided to dismiss him summarily.
That on November 19, 1987, the Complainant submitted a request for a hearing by the Secretary
General and a request for reconsideration. On December 16, he presented another request for
reconsideration when the deadline for answering the request for a hearing expired.
That although the Secretary General's only charge against the Complainant was insubordination for
having attempted to thwart his transfer to Mexico, the Reconsideration Committee added the charges
of falsification of the performance evaluation and violation of Article 20 of the General Standards. In
so doing, the Reconsideration Committee exceeded its authority and added elements other than those
cited by the Secretary General in his decision to terminate. It thereby violated Staff Rules 112.2 and
112.5 and the principle of due process of law in applying disciplinary measures, especially summary
dismissal, which ends the employment contract.
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That throughout the proceeding for summary dismissal, documents were used that were not made
known to the accused staff member, which means that due process of law was violated and the
procedure for summary dismissal was null.
That the hearing officer violated Staff Rule 110.5 and due process of law (a) by interviewing various
staff members without inviting the Complainant to be present and without informing him of the
questions and replies, of which no record was kept, and (b) by voicing personal opinions and his own
views about the legal significance of the facts, the latter being the function of the Disciplinary
Committee.
That as to the charge of violating Article 20 of the General Standards, the hearing officer
acknowledged in his final report that Staff Rule 110.5, on summary dismissal, should not be applied.
That the Secretary General violated Staff Rule 107.1(a)(viii) by failing to apply it, thus, denying the
Complainant his right to have his request concerning the transfer to Mexico decided by the medical
board cited in that Rule.
That Staff Rule 105.2(e) provides that a professional staff member's refusal to accept a transfer
without justified cause shall imply his resignation. Before deciding on the Complainant's request for a
hearing, the Secretary General became convinced that he had not proved justification for not
accepting his transfer. Accordingly, he should have acted on the hearing request and complied with
the provisions of Staff Rule 105.2(e). Since the Complainant was a professional staff member, this
meant resignation from the post he held.
That the violation of Staff Rule 105.2(e) by failure to enforce it meant that due process was violated
and that the staff member was subjected to a different procedure that culminated in a sanction of even
graver consequence.
That the interpretation of the legal value and scope of articles 49, 50, 51 and 53 of the General
Standards and that of the Staff Rules must be premised upon the fact that the General Standards
outrank the Staff Rules. Staff Rule 110.5 is not applicable to the Complainant's case because it is
contrary to the General Standards. Hence, the Secretary General's decisions of November 6, 1988,
and October 5, 1988, are null.
That the authority of the Secretary General in disciplinary matters is not discretionary or unlimited.
The legal nature of disciplinary powers and the principle of protection that underlies labor law limit
and moderate the authority of the Secretary General in this area. By applying Staff Rule 110.5 to the
accusations against the Complainant, the Secretary General violated the fundamental legal principle
that bars penalties for conduct or acts that have not been legally defined as wrongdoing before they
are committed.
That the Complainant did not obstruct the Secretary General's decision; instead, he used the legal
means authorized in the General Secretariat, especially the request for a hearing and the referral to a
medical board. Nor did he obstruct the work of the General Secretariat physician; it has been shown
by documentary evidence that the Complainant submitted to the medical examination ordered. The
examination was conducted in the manner and under the conditions that Dr. René Meza himself
determined. Dr. Meza did not conduct further tests because he himself decided that they were
unnecessary; the Complainant did not object to any examination that Dr. Meza saw fit to order.
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Further, it is untrue that the Director of the Department of Human Resources ordered Dr. Meza to do
a physical examination of the Complainant; the instructions were that he did a medical examination
and any tests that might be necessary.
That neither Dr. Meza nor the Department of Human Resources informed the Complainant that the
reports from Suburban Hospital were incomplete.
That the facts alleged for the summary dismissal of the Complainant have not been established
beyond a doubt. A decision that means a staff member's summary dismissal --the termination of his
employment contract by means of an emergency procedure-- cannot be arbitrary. The facts upon
which it is based must be proved in accordance with the principles of justice and the principle of
protection, which is the basis of labor law.
That he requests expert medical testimony from a physician specializing in neurology and licensed to
practice in the District of Columbia, who would report to the Tribunal on the points proposed by the
Complainant.
That he specifically prays (a) that the decisions of October 5, 1988, and November 6, 1987, be
declared null and void and without legal effect; (b) that the Tribunal order the Secretary General to
restore the Complainant to the post he occupied at the time he was summarily dismissed, with express
recognition of all the rights, benefits, and emoluments to which he was entitled and the rights,
benefits, and emoluments he would have received if he had remained in his post between the time his
services were terminated and the date of the Tribunal's ruling in this case; (c) that in the event the
Secretary General exercises his option under Article VII.2 of the Statute of the Tribunal, the General
Secretariat be ordered to pay the Complainant three years' basic salary; and (d) that the General
Secretariat be ordered to pay moral and material damages in the amount of US$86,969 and
US$10,000 for attorney's fees.
V. The representative of the Secretary General replied to the complaint in due time and proper
form and stated, inter alia:
That the decision to transfer the Complainant to Mexico was taken by the Secretary General on June
9, 1987, in response to a request from the Director of the Office of the General Secretariat in that
country, José Félix Palma, that a professional post be transferred to that Office to reinforce support
for technical assistance projects. The transfer was considered desirable because, on the one hand, Mr.
Tejada's curriculum met the professional requirements for the technical assistance functions in that
Office and, on the other hand, it also enabled the Administration to give him one more opportunity,
by yet another change, to improve his attitude in a new environment, after a history of conflict and
poor performance in the Department of Scientific Affairs and the Quincentennial Office.
That the Complainant asked that his transfer be canceled for reasons of health. Earlier, however, he
had submitted a request for reconsideration in connection with the Secretary General's decision not to
select him for the post of assistant chief of Division II of the Department of Regional Development, a
post that requires the incumbent to travel and spend time in such high-altitude places as La Paz,
Cochabamba, Quito, and Bogotá.
That in these circumstances the Secretary General ordered Mr. Tejada to undergo a medical
examination by Dr. Meza, the General Secretariat's physician. The examination did not reveal any
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impediment. When informed of this, the Complainant requested that a medical board be formed, in
accordance with Staff Rule 107.1(a)(viii). By a memorandum from the Department of Human
Resources dated July 15, 1987, the request was denied on the ground that the question was not one of
conflicting opinions but of an absence of opinion.
That the Complainant never sent in the medical records or signed the authorization for Dr. Meza to
request the information himself, in spite of repeated requests from the Department of Human
Resources.
That on August 20, 1987, the Director of the Department of Human Resources informed the Secretary
General of the paralysis created by the Complainant with respect to his transfer, the serious evidence
that the Complainant had altered or falsified the evaluation form completed and given to him by Mr.
Kiernan, his supervisor in the Quincentennial Office, in May 1987, and the Complainant's persistently
negative and obstructive attitude in the Quincentennial Office, which seemed to be a repetition of his
negative behavior during the years he spent in the Department of Scientific Affairs. The Secretary
General decided that the situation was so serious and untenable that he ordered the procedure for
summary dismissal established in Staff Rule 110.5 to be instituted.
That the second charge concerns the altering of the evaluation for the period from October 1986 to
February 1987. The third charge concerns conduct contrary to the nature, purposes, and interests of
the Organization. Along with the altered evaluation form, Mr. Tejada sent the Department of Human
Resources a supposed evaluation dated October 15, 1986. That evaluation does not bear the signature
of the Director of the Department of Scientific and Technological Affairs, who was the second-level
supervisor authorized to comment on the evaluation and sign it; had not been seen by either the
Department of Scientific and Technological Affairs or the Executive Secretariat for Education,
Science, and Culture, and is not to be found in the files of either office; and was sent to the
Department of Human Resources nine months after it was done.
That during the months in which the Complainant was assigned to the Quincentennial Office, his
conduct was contentious and negative and calculated to obstruct the business of the office. Moreover,
he held up the work and demonstrated an utter lack of interest and a tendency to complain constantly.
During that period, original documents assigned to his care disappeared and there were unjustified
and excessive absences. His performance evaluation was "unsatisfactory" in all areas. While he was
assigned to the Division of Applied Sciences of the Department of Scientific Affairs, his behavior
was just as contentious if not more so, working papers and instructions were constantly being lost,
and his productivity was nil, at least from 1984 to 1987. At the same time, the Complainant devoted
all his time to writing hundreds of memoranda on why he could not prepare the final report on Project
No. 14.
That the hearing officer began by compiling all the documents related to the case and interviewing
various people, the Complainant among them. On October 1, 1987, he sent the Complainant a
memorandum notifying him that the hearing would be held on Wednesday, October 7, at 3:00 p.m.,
and explaining that "in accordance with Staff Rule 110.5, the . . . procedure will consist of hearing . . .
both the accused staff member . . . and the other persons connected with the case. . . . " On October 2,
1987, two months after being notified in Lima, Peru, that summary dismissal proceedings were being
instituted, the Complainant sent a memorandum to the hearing officer asking, among other things,
that the hearing be postponed.
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That by memorandum of October 5, 1987, the hearing officer informed the Complainant that during
the hearing, the staff member has an opportunity to answer the questions of the hearing officer and
question the persons who have testified before that officer, in order to ascertain the facts.
That during the hearing, which was held on October 14, 1987, the Complainant read out a document
alleging that the hearing and the summary dismissal proceedings were invalid and refused to answer
the hearing officer's questions.
That on November 3, 1987, the hearing officer presented his final report and on November 6, 1987,
the Secretary General decided to summarily dismiss the Complainant. On November 19, 1987, the
Complainant requested the reconsideration of the summary dismissal measure. His participation in
that process was marked by pointless demands, obstacles, and unjustified delays, which the
Reconsideration Committee mentioned in its final report.
That the Reconsideration Committee submitted its report and found that the acts committed by the
Complainant were sufficiently serious to warrant summary dismissal. The Secretary General
confirmed his decision on October 8, 1988, and the Complainant was so notified on October 18.
That the findings of the Reconsideration Committee should not be set aside, because the Secretary
General stated in his decision that he had based it on the serious wrongdoing committed by the
Complainant in attempting to obstruct his transfer and that this was a staff member who had
"repeatedly and openly demonstrated conduct incompatible with the duties of an international civil
servant of the OAS." The document that the Secretary General later presented to the Reconsideration
Committee proves that the Secretary General also took into account the Complainant's entire behavior
before his attempt to obstruct his transfer to Mexico, which is covered in the third charge, violation of
Article 20 of the General Standards. The conclusion is therefore that the Reconsideration Committee
acted with full authority, within its legal powers, and with regard for due process.
That there was no violation of due process owing to any alleged failure to hand over documents, since
Mr. Tejada had access at all times to the documents used in his case.
That the hearing officer acted lawfully within his authority. Except for Staff Rule 110.5, there is no
detailed procedure for summary dismissal in the General Secretariat. The practice has been to
designate a hearing officer, who is responsible for gathering all the information on the alleged
wrongdoing. This means compiling documents and testimony from individuals, including the
accused, so as to become thoroughly familiar with the case, and then conduct the actual hearing. In
that hearing the accused staff member can defend himself and confront the persons who have been
interviewed, if this is necessary in order to clear up points in dispute. This procedure is fully
consistent with the standards established by the Administrative Tribunal in Judgment No. 98
(Fernando Suárez de Castro v. Director General of IICA).
That all the prior interviews conducted by the hearing officer were in preparation for the hearing,
where the Complainant would have an opportunity to refute, confront, question, cross-examine, and
so on. The Complainant was informed of all this in the hearing officer's memorandum of October 5,
1987.
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That the transcript of the tape of that hearing, presented by the Complainant himself, proves that he
alone, acting on the advice of his attorney, decided against availing himself of the hearing to learn
what other persons had said and confront them.
That the opinion of the hearing officer that Mr. Tejada's behavior was sufficiently serious to justify
the application of Staff Rule 110.5 is totally consistent with the procedural guidelines established in
that Rule.
That the Secretary General did not violate Staff Rule 105.2(e) by failing to apply it and ordering
summary dismissal instead. The Complainant neither agreed nor refused to be transferred to Mexico,
but instead, by means of various stratagems, avoided obeying the instructions of the Department of
Human Resources that would have enabled the Secretary General to determine whether or not there
was a legitimate reason not to transfer the Complainant to Mexico. The Reconsideration Committee
recognized this in its report.
That, contrary to the Complainant's assertion, the Secretary General has not violated the General
Standards by enacting Staff Rule 110.5. Article 53 of the General Standards authorizes the Secretary
General to determine whether one or more wrongdoings have been committed that warrant summary
dismissal. In providing for summary dismissal, the General Assembly did not establish an exhaustive
list of acts that should qualify as serious misconduct; instead, it left that determination to the
Secretary General's discretion.
That unlike the ordinary "dismissal" provided for in Article 50 of the General Standards, summary
dismissal under Article 53 of the General Standards requires no Disciplinary Committee.
That as the Reconsideration Committee recognized, it was the Complainant--not Dr. Meza--who was
responsible for seeing to it that Dr. Meza had the records he needed to prepare his report. It has been
clearly proved that the Complainant never authorized his physician to furnish those records.
That besides challenging the expert testimony requested, she prays specifically that the complaint be
dismissed in all its parts.
VI.
The attorneys for both parties filed their reply and response in due time and proper form.
In his reply, the attorney for the Complainant stated:
That in April 1988, six months after the Complainant's summary dismissal was ordered, the General
Secretariat presented to the Reconsideration Committee a statement expanding on the facts and
reasons for the dismissal, and introduced documents denied to the Complainant during the
proceedings.
That as for an alleged third charge, concerning conduct contrary to the nature, purposes, and interests
of the Organization, no disciplinary measure appears in the Complainant's official file.
That there is no doubt that the actions imputed to the Complainant as serious misconduct bear no
analogy or similarity to the actions specifically set out in Staff Rule 110.5. The expression "among
others," which the Secretary General himself included in Staff Rule 110.5, must be interpreted and
applied carefully and restrictively.
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VII. On September 8, 1989, pursuant to Article 14.2 of the Rules of Procedure, the present
complaints were placed on the list of matters pending consideration.
Once the President had set the opening date for the thirty-second regular 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 began its session on September 25, 1989,
deliberated on the case sub judice, and, in accordance with articles 17 and 18 of its Rules of
Procedure, decided to take testimony and hold the oral proceedings on complaints Nos. 161 and 162
on Thursday, September 28, 1989. The hearing was held on the date and at the time indicated.
Because of the lateness of the hour, the oral proceedings on Complaint No. 161 were conducted on
Monday, October 2. By Resolution No. 212, dated October 5, 1989, the Tribunal denied the
Complainant's request for expert testimony.
The Tribunal designated Enrique Rojas Franco to draft the judgment.
Having examined the proceedings, the Tribunal now
CONSIDERS:
I. BASIC FACTS
1. On October 1, 1986, the Complainant, Miguel Tejada, was transferred from the Department of
Scientific and Technological Affairs to the Office of Coordination for the Commemoration of the
Quincentennial of the Discovery of America.
2. On August 7, 1987, James Kiernan, coordinator of the Office of Coordination for the
Commemoration of the Quincentennial of the Discovery of America, informed the Complainant that
the Director of the Department of Human Resources had asked him to make an evaluation of the
Complainant's performance for the period between March 1 and June 30, 1987.
3. On the same day, August 7, 1987, Mr. Kiernan sent the Director of the Department of Human
Resources the evaluation of Mr. Tejada.
4. The Complainant's overall evaluation was unsatisfactory. Mr. Kiernan also affixed additional
pages containing negative comments on the Complainant's work.
5. Also on August 7, 1987, two memoranda were prepared. In the first, Mr. Kiernan informed the
Complainant that an evaluation had been made of his performance between March 1 and June 30,
1987. He also said that he was appending a copy of the evaluation because he had sent the original to
the Director of the Department of Human Resources.
The second memorandum was from the Complainant to the Director of the Department of Human
Resources. In the pertinent part of it he said that he had received a copy of the evaluation and that,
since he was leaving on vacation, he did not have time to review it. He also said that Staff Rule
105.9(f)(i) gave him 15 days to present comments and that he was therefore asking for a hearing
officer to be designated. In closing, he said:
The principal reason for challenging the evaluation submitted by Mr. Kiernan is that he did not
comply with any of the provisions of Staff Rule 105.9 or with the instructions for the Evaluation that
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were given to us. I should also make it clear that I have not at any time participated in the process of
evaluation for the period from March 1 to June 30, 1987. As for the contents of the document, I have
serious, grave comments to make, but will be able to do so only upon my return to the office, after
June 24 of this year.
6. On August 11, 1987, Nelson Mello e Souza, Director of the Department of Human Resources,
sent a memorandum to Sergio Nilo designating him, pursuant to Staff Rule 105.9, as the hearing
officer on Mr. Kiernan's evaluation of Mr. Tejada's performance.
7. On August 13, 1987, the Director of the Department of Human Resources informed Mr. Tejada
that he had designated Mr. Nilo as the hearing officer. He also told him:
. . . It should be pointed out that although a hearing officer has been designated, no action of this kind
interrupts the administrative procedure. You should therefore complete the evaluation procedure by
signing the form, in Section IV, and making your comments on it. For this you may use the copy Mr.
Kiernan gave you and discuss with him any comment you may have in this regard.
8. On September 11, 1987, Mr. Tejada sent to the Director of the Department of Human Resources
a memorandum in which he made it clear that Mr. Kiernan had not given him a copy of the form or
requested his signature. He noted also that the guidelines for the evaluation process indicate explicitly
that it is the responsibility of the staff member to sign the evaluation form and take a copy of it.
9. On September 18, 1987, Mr. Tejada sent a memorandum to the hearing officer, Mr. Nilo,
challenging the evaluation made by Mr. Kiernan.
10. On September 29, 1987, Mr. Tejada sent to the Director of the Department of Human
Resources another memorandum stating that the document given to him by Miguel Renart, a staff
member of the Department of Human Resources, was not an original; that the first two pages were
not numbered; that the first page was a copy of the evaluation prepared for the period from December
1986 to February 1987, and that the dates shown for the discussion meeting pertained to the
evaluation of the period from December 1986 to February 1987. He also said:
. . . In other words, the Department of Human Resources has been given inaccurate and tendentious
information, calculated to create the impression that I have somehow participated in the evaluation
process, which is absolutely untrue . . . .
The Complainant added further comments and criticisms of a formal nature, and ended by saying:
. . . you can see that I am affixing my signature and comments on page 11 of an original form, as the
Rules require, and not on the photocopy that the Department gave me.
11. On September 28, 1987, Sergio Nilo, hearing officer and chief of the Division of Educational
Planning, Research, and Studies of the Department of Educational Affairs, submitted his report to
Nelson Mello e Souza, Director of the Department of Human Resources In his 16-page report, Mr.
Nilo concluded:
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. . . the Hearing Officer is of the view that on the substantive matter the supervisor did an adequate
evaluation, despite errors in his use of the evaluation instrument. As for Mr. Tejada's request that this
evaluation be nullified, there are not sufficient grounds for agreeing to it.
12. On October 8, 1987, the Director of the Department of Human Resources informed Mr. Tejada
that he had decided to accept the evaluation as valid and proper.
13. By an undated memorandum received in the Department of Human Resources on October 23,
1987, the Complainant requested a hearing by the Secretary General, pursuant to Staff Rule 112.1.
14. On November 6, 1987, the Director of the Department of Human Resources replied as follows
to that request:
. . . Since the Secretary General decided that you should be summarily dismissed, as you are informed
in a memorandum sent to you on this same date, he has also decided, for the sake of procedural
economy, that your claim that your evaluation is invalid should be joined to any administrative
proceedings to which the decision for summary dismissal may give rise.
15. The procedure for summary dismissal to which the Director refers is the one that the
Secretary General ordered in a memorandum dated August 20, 1987, addressed to Nelson Mello e
Souza. In that memorandum, the Secretary General asked that proceedings be instituted for the
summary dismissal of Miguel Tejada, pursuant to Staff Rule 110.5. Further, he designated Luis
Lizondo as the hearing officer for those proceedings.
16. On November 3, 1987, the hearing officer presented his report to the Secretary General.
17. By a memorandum dated November 6, 1987, the Secretary General endorsed Mr. Lizondo's
report and resolved to summarily dismiss Miguel Tejada on the ground of serious misconduct, in
accordance with Article 53 of the General Standards and Staff Rule 110.5.
18. Mr. Tejada repeatedly objected to having the same Reconsideration Committee hearing the
case of his summary dismissal and that of his negative performance evaluation.
19. The grounds for instituting the administrative procedure for summary dismissal were the
following: (1) what the Secretary General called insubordination on the part of the Complainant for
having obstructed the decision to transfer him to Mexico City; (2) the perpetual conflict and problems
caused by the Complainant in the Office of the Quincentennial of the Discovery of America,
specifically the falsification of the evaluation document that the coordinator of that Office presented
to the Department of Human Resources; and (3) other situations that, according to the Secretary
General, demonstrated conduct contrary to the nature, purposes, and interests of the Organization, as
provided by the General Standards.
20. On September 30, 1987, the Director of the Department of Human Resources sent Mr. Tejada
a memorandum clarifying the accusations, which, as has been said, had been drawn up on August 20,
1987. The memorandum mentions the following charges: (1) insubordination, for having, without
justification, prevented the implementation of the Secretary General's decision to transfer him to
Mexico; (2) falsifying the evaluation document; and (3) violating Article 20 of the General Standards
by (a) negative behavior that obstructed the progress of work in the Office of the Quincentennial, as
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demonstrated by delays in turning in jobs and the disappearance of documents in his keeping; (b)
abusing the hearing and reconsideration procedures; and (c) lack of productivity. According to the
memorandum explaining the accusations, this behavior demonstrated the Complainant's persistently
negative attitude towards decisions adopted by the General Secretariat and his inability to work
efficiently, productively, and harmoniously in the areas to which he had been assigned.
21. Both the hearing officer appointed to look into the dismissal case and the Joint Advisory
Committee on Reconsideration examined the facts that led to the summary dismissal proceedings.
The Reconsideration Committee also reviewed the case of the Complainant's negative performance
evaluation in the Office of the Quincentennial. The Committee concluded that Mr. Tejada's actions
were sufficiently serious to warrant summary dismissal.
22. The Secretary General accepted the recommendation of the Reconsideration Committee and
confirmed his decision to summarily dismiss the Complainant.
23. No administrative penalty was ever imposed on the Complainant in his 13 years of service
with the Organization, and in all that time he received only one negative performance evaluation.
II. PREVIOUS QUESTION
The joinder of Complaints No. 161 and 162
24. For reasons of procedural economy and to avoid contradictory judgments, it has been the
policy of this Tribunal that so long as the parties, the cause of action, and its object are identical, and
especially where there is a direct link between complaints, these ought to form part of the same
proceedings and consequently be settled by a single judgment. The Tribunal believes that complaints
Nos. 161 and 162 meet these requirements.
25. Complaint No. 161 was prompted by the Complainant's disagreement with the negative
performance evaluation he received from his immediate supervisor. This evaluation was later
confirmed by the Secretary General, who concurred with the recommendation of the hearing officer,
Mr. Nilo. The Complainant thereupon requested the convocation of the Reconsideration Committee.
26. Complaint No. 162, in turn, originated in a new and parallel procedure for summary dismissal
set in motion by the General Secretariat in connection with other accusations against the
Complainant. Since the Complainant's unsatisfactory evaluation was included in the reasons or
motives for this second procedure, the Director of the Department of Human Resources decided that
the same Reconsideration Committee should hear all the imputations against the Complainant. In line
with that decision, the administrative procedures and actions were joined, for reasons of procedural
economy that the Tribunal shares, because "like solutions should apply to like circumstances." This is
a general principle of law, premised on logic or rational reasons, which in the present case violates no
written rule barring administrative joinder, especially where there is, as has been said, a direct link
between the proceedings. The Complainant's arguments notwithstanding, it is clear that a summary
dismissal procedure based on his alleged general failure to discharge his duties as a staff member of
the Organization must go hand in hand with a review of the last negative evaluation of his
performance of those functions, duties, and responsibilities. As the Tribunal sees it, it is fitting that
this antecedent--whether accurate or not--should be assessed by the Reconsideration Committee, a
body that advises the Secretary General and constitutes an administrative instance made up of one
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representative from the Staff Association, one from the General Secretariat, and a third appointed by
both. All the more so because that the present case involved the severest penalty, summary dismissal
of the Complainant, for which no previous intervention by the Disciplinary Committee is required.
27. Consequently, since the presumptions of fact and law cited above are the same in both
administrative and jurisdictional proceedings, the Tribunal orders a joinder of complaints Nos. 161
and 162.
III. MERITS
A. Violation of due process in the Complainant's evaluation
28. The rules of process are general principles of universal law, embodied in all the instruments
for the protection of human rights, such as the American Convention on Human Rights, or Pact of
San José. The purpose of Article 8 of that Convention is to guarantee to a person who is being
investigated, whether judicially or administratively, a minimum of rights deemed necessary for him to
properly defend himself. At the same time, it is the duty of the investigating and enforcement agency
to comply strictly with the requirements laid down by its legal system. If these requirements are
violated, the decision/penalty may be set aside or nullified and liability be determined. To prevent the
accused from being left defenseless, rules of due process must be viewed in each specific case from
the standpoint of logic and rationality. Thus, for example, there are essential and nonessential
requirements. In the first instance, noncompliance with or the omission of an essential requirement,
the penalty is absolute nullity. In the second instance, the omission of a nonessential requirement, the
omission is remediable because the nullity is only relative.
29. The Tribunal believes that an oral or written hearing for the alleged wrongdoer must precede
the penalty. Such a hearing is a basic element of due process. This requirement was duly satisfied in
this case. Other merely formal irregularities are inconsequential, especially when they can be
corrected or repaired.
30. It is true that in the present case the Complainant's supervisor omitted some formalities
prescribed by the Staff Rules. The Tribunal believes, however, that these violations are not substantial
enough to nullify the negative evaluation. The main argument supporting this view of the Tribunal is
that any omission was duly rectified by the hearing officer on the evaluation, who made a thorough
review of the facts set out on the form. Furthermore, the Complainant did not prove either to this
Tribunal or to the hearing officer or to the Joint Advisory Committee on Reconsideration that those
facts were inaccurate or untrue. The primary goal of the evaluation standards set out in Staff Rule
105.9 is that the content of the evaluation form or document should be real, and above all that the
characterization of the staff member's performance should be true, impartial, and objective.
31. Staff Rule 105.9(f) lays down the procedure to be followed if a staff member disagrees with
the evaluation. In that case, at the request of the staff member, the Director of the Department of
Human Resources appoints a hearing officer to conduct a thorough and methodical investigation and
to submit a report. This report is not final, for the staff member is entitled to one last administrative
instance--the Reconsideration Committee. The Committee, in turn, advises the Secretary General,
who takes the final decision in the administrative process.
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32. The Tribunal is of the opinion that in the present case all these stages were properly
exhausted and the complaint was afforded the opportunity to show whether the evaluation and rating
were inaccurate.
B. Summary dismissal
33. The General Secretariat decided to transfer the Complainant, Mr. Tejada, to Mexico City. The
Complainant showed by a medical certificate that his ailments and state of health would prevent him
from properly performing the duties and responsibilities of the post under the physical/geographical
conditions of the assignment--more particularly, the altitude of Mexico City. The Director of the
Department of Human Resources asked the OAS physician to assess the Complainant's physical
health and determine whether he could discharge his duties in Mexico City effectively and without
detriment to the service.
34. Having thoroughly reviewed the evidence in the administrative record, particularly the
documentary evidence and testimony received in the public hearing, the Tribunal believes the
following two basic points to have been established beyond a doubt: (1) The reasons advanced by the
Complainant to oppose the transfer were supported by expert opinion, which has not been disproved
or refuted to this date. Indeed, the evidence in the records submitted by Suburban Hospital, which
were later produced, confirms the statements of Dr. José Quirós, the Complainant's personal
physician. (2) The Complainant did not act diligently, sincerely, and in good faith to enable the
official physician commissioned by the Director of the Department of Human Resources to carry out
his assignment efficiently and technically. To these two facts must be added the lack of diligence
displayed by the OAS physician himself. Dr. René Meza confined himself to requesting the medical
reports, but did not discharge his duty to evaluate the Complainant's state of health personally,
individually, and specifically or else with the aid of other specialists and by means of laboratory
testing or other appropriate examinations. This is what he should have done in order to carry out the
clear, specific, categorical mandate received from the Director of the Department of Human
Resources: to ascertain whether Mr. Tejada was at that time able to properly perform his duties at the
OAS Office in Mexico City. Dr. Meza confined himself to simply reporting to the Director of Human
Resources that he could not complete his evaluation of Mr. Tejada's health. The reason he gave was
that he received only partial and incomplete copies of the record of Mr. Tejada's hospitalization in
Suburban Hospital and a new short report from Dr. Quirós.
35. In view of Dr. Meza's report and the Complainant's absence from headquarters on vacation,
the Secretary General instituted summary dismissal proceedings against the Complainant. There were
three basic grounds for these proceedings: (1) the obstacles raised by the Complainant to avoid a
medical examination, which amounted to insubordination; (2) the negative rating from the Office of
the Quincentennial; and lastly, (3) the Complainant's repeated, conspicuous behavior against the
interests of the Organization. To these are added other acts such as falsifying or altering official
documents and the constant use of grievance and reconsideration procedures to challenge decisions of
higher officials. A Joint Advisory Committee on Reconsideration was convened to look into these
charges and it recommended the summary dismissal of the Complainant.
36. The Tribunal must now review the actions imputed to the Complainant as grounds for
dismissal, at least those on which there is conflict. Those actions are as follows:
a. Bringing unfounded administrative complaints against decisions
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unfavorable to him
37. This is not, in the judgment of the Tribunal, a crucial element in establishing illegitimate
conduct. Complaints should be a mean of overturning decisions inconsistent with the subjective rights
or legitimate interests of the staff of the General Secretariat. They should be used in moderation, but
their abuse, though undesirable, is not a valid reason for imposing any kind of administrative penalty
on the complaining staff member. In court proceedings there are penalties for frivolous or reckless
litigants, such as the assessment of court costs and attorney's fees. In the internal regulations of this
Organization, however, no provision whatsoever is made for penalizing a staff member who lodges
unfounded administrative grievances. Consequently, such behavior cannot be held a demerit in the
Complainant's service record in the Organization. Indeed, the exercise of a right can in no way be
characterized as dereliction of a staff member's duties and responsibilities. The argument might be
made that abusing the right to file administrative grievances ought to give rise to some administrative
penalty if the complaints are repeated or found to be baseless. Nevertheless, such behavior, which, we
repeat, might be contrary to the interest of the Organization by working against its purposes and
wasting the time and effort of its staff, can never provide a valid and legitimate basis for imposing a
penalty extra procesum.
b. Loss and alteration of documents
38. Out of the proceedings has come no evidence whatever to show incontestably that it was the
Complainant who made the documents disappear or altered the rating of his supervisor. These
occurrences, if true, might constitute a criminal offense, besides leading to the loss of the job.
However, this is not a court of conscience but one that is bound by rules of law. In these proceedings,
accordingly, allegations must be properly proved with full, effective, legitimate, admissible evidence.
39. The Tribunal believes that in this case there is no evidence showing or proving that such
occurrences, if true, were directly imputable to the Complainant. Consequently, these occurrences
must be rejected as part of the grounds for his summary dismissal.
C.
Negative evaluation
40. In section III.A of this Judgment the Tribunal has confirmed the validity of the last evaluation
of the Complainant by his supervisor, which gave him an unsatisfactory rating. However, a single
negative evaluation does not by itself justify summary dismissal. Besides, the penalty for deficient
service is prescribed by Staff Rule 110.4(c), which requires two consecutive unsatisfactory
evaluations before service, may be terminated. The Tribunal notes in this connection that during the
13 years of the Complainant's services in the Organization he received no other negative evaluations
from his superiors or supervisors. The circumstances described in the testimony --that the
Complainant enjoyed political protection and was supposedly favored by people in high places over
senior management officials-- neither invalidates nor detracts from the fact that the Complainant's file
includes only one negative evaluation. It is not up to this Tribunal to substitute itself for the
administration; its function is solely to monitor the legality of the decisions adopted by administrative
bodies and in particular by the General Secretariat. It is the latter's duty to ensure strict compliance
with the regulations governing the Organization and the effective, sound conduct of its labor relations
with its employees, so as to avoid irregularities and the frustrations caused by favoritism, which is
always invidious. This will lead to a more efficient performance of administrative services on the part
of the staff.
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D. Insubordination
41. Technically, in the factual and legal situation we are examining, insubordination means
refusing to follow orders, instructions, or circulars from one's superiors. These orders are to be carried
out without demur by their recipient, unless there is some regulation that makes it permissible not to
do so. In the case under review, there was an order to transfer the Complainant to Mexico City but he
refused to go, claiming health reasons, which he supported by means of a proper document. The
Director of the Department of Human Resources, in turn, proceeded to ascertain whether the
justification was true, valid, and admissible. It is the understanding of the Tribunal that the practice in
the General Secretariat, based on Staff Rule 107.1(a)(viii), is that only the official physician of the
Organization may technically establish, beyond any doubt, whether a medical opinion submitted as
evidence by a staff member proves the state of his health to the satisfaction of the administration for
any legal or material purpose. Under the Rule, if there is any doubt about the health of a staff member
who has been on sick leave, at the request of that staff member the matter may be referred to an
independent physician or to a medical board appointed by agreement between the Secretary General
and the staff member. That was the sui generis procedure followed parit rationae in this case. The
staff member objected to the transfer decision for reasons of health supported by a medical certificate.
The Director of the Department of Human Resources tried to verify the reasons for his attitude, but
was unable to do so because of obstacles placed by the Complainant. This meant that, legally and
logically, the Complainant did not succeed in justifying his refusal to be transferred. The proper
course in the case, in the view of the Tribunal, would have been not to institute summary dismissal
proceedings but to enforce the transfer order. If, after the order had been repeated, the Complainant
continued to disobey it, Staff Rule 105.2(e) should have been applied:
(e) The refusal of a staff member in the professional category to accept a transfer without justified
cause shall imply his resignation.
42. In short, the Tribunal finds that the burden of proof rested in this case on the Complainant,
who could not profit from his own negligence or willful wrongdoing. The apparent justification
offered by the Complainant, represented by his medical certificate, was impaired by subsequent
events, for in reality and from a legal standpoint he failed to justify fully his opposition to the transfer
order.
E. Characterization of the facts and imposition of summary dismissal
43. It has so far been established that the summary dismissal proceedings were actually instituted
because the Complainant did not justify his refusal to be transferred, not because he failed to obey the
transfer order. This is because the order was neither repeated nor enforced, as it should have been, to
establish whether the Complainant persisted in resisting the transfer.
44. The events that led to the summary dismissal investigation have been reviewed and the
Tribunal feels that none of them by itself justifies the administrative penalty that was imposed. It
remains to be seen, however, whether all of them taken as a whole legally justify the administrative
action of dismissal.
Staff Rule 110.5(a) reads:
. . . The following circumstances, among others, shall be considered as serious misconduct:
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i. Abandonment of post;
ii. Deliberate false statements of a serious nature related to him employment;
iii. A repetition of the commission or omission of acts that have already given rise to disciplinary
measures.
45. As regards the characterization of serious misconduct, this Tribunal believes that there is no
contradiction between Article 53 of the General Standards and Staff Rule 110.5. It is a general
principle of civil service law that penalties must be defined or previously established in accordance
with the universal principle of the law of sanctions; this is not so with the factual elements that may
constitute the grounds for a penalty. As a rule, labor laws or codes establish the grounds on which it is
permissible to put an end to an employment contract, listing a restrictive number, or numerus clausus,
of such reasons. But an indeterminate or undefinable cause is always added, such as "any other
serious breach of the terms of the employment contract." This is because the science of law cannot
foresee each and every factual situation that may arise in the course of an employment relationship
and must assume that the authorities empowered to impose penalties will exercise their discretion
within the limits that universal doctrine has set to ensure that their action is legal. This Tribunal has
given a full definition of those limits, such as logic, appropriateness, advisability, and fairness, in
Judgment No. 88, Marijane E. Peplow v. Secretary General of the OAS (1985).
46. It follows that the three examples mentioned in Staff Rule 110.5 do not exhaust the Secretary
General's opportunity to establish the existence of serious misconduct in cases other than those
specifically included in that provision. This interpretation is authorized by the General Standards,
which are regulations of a higher rank because they have been approved by the General Assembly. In
addition, there is no other regulation that prohibits it. On the contrary, by using the phrase "among
others," Staff Rule 110.5 makes it clear that the listing is not all-inclusive.
47. In the present case, the Tribunal believes that the facts collected by the Secretary General do
not warrant an administrative decision as serious as the summary dismissal of the Complainant.
Actually, the only proven facts prompting the penalty were the negative evaluation, the obstacles
placed in the path of a justification that would have benefited the Complainant, and an excessive
number of administrative complaints. Regarding these last, it bears mentioning that even there is no
legal provision to say so, according to the general principles of labor law the statute of limitations has
run out. This means that if improper conduct is not punished within a certain time, the enforcing
agency is barred from any further administrative pronouncements or penalties. In the eyes of the law,
these acts are held never to have been committed, precisely because rights must be exercised and
actions brought in a timely fashion and not ad infinitum. It cannot be accepted that a staff member
who has never been penalized under the internal procedure that lays down the requirements and
safeguards for doing so is to be subjected, ten years later, to proceedings instituted for that purpose.
Nor can it be allowed that, many years later, actions that were not punished at the proper time should
be collected together in order to impose a serious penalty, ignoring the statute of limitations that is the
guarantee of due process.
48.
Furthermore, throughout the Complainant's whole career in the Organization no
administrative penalty was ever imposed on him that could provide a basis for such drastic
punishment.
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49. The Tribunal therefore finds that Staff Rule 110.5 was misapplied, since the acts that
prompted summary dismissal for serious misconduct were nonexistent and misconstrued, and in any
event the penalty of summary dismissal is out of proportion to the wrongdoing.
50. The Tribunal believes it cannot take measures that amount to substituting its own
enforcement powers for those vested exclusively in the Secretary General as head of the Organization
in matters of discipline. The role of the Tribunal is to review legality and discretion.
Accordingly, the Tribunal
RESOLVES:
1. That the summary dismissal measure must be nullified and Staff Rule 105.2(e) applied instead.
Consequently, the Complainant, Miguel Tejada Bailly, must be held to have resigned at the time he
was informed of his summary dismissal.
2. That the Complainant's evaluation for the period from March 1 to June 30, 1987, is legally
proper and must be confirmed.
3. That there are no grounds for granting the material and moral damages requested.
4. That no costs are assessed, since it is the view of the Tribunal that the Complainant has not
been entirely unsuccessful in his action.
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
Martha Braga, Esq. / Secretary
DISSENTING VOTE CAST BY DR. ALEJANDRO TINOCO
Dr. Alejandro Tinoco, a member of the Tribunal, signs this Judgment and expresses his agreement
with its content. However, he dissents on the matter of summary dismissal because he believes,
contrary to the findings set out in the Judgment, that the grounds for the Complainant's dismissal,
taken as a whole, were sufficiently proven in the proceedings.
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