Judgment No. 3
Complaint No. 3
Herbert N. Krebs G. v. Secretary General of the Organization of American States
THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES,
Composed of Mozart Víctor Russomano, President; Juan Bautista Climent Beltrán, Vice President;
and Carlos Giambruno, Judge,
Has before it for judgment the proceedings on the complaint filed by Herbert N. Krebs against the
Secretary General of the Organization of American States.
The Complainant acted on his own behalf and was also represented by Roberto MacLean Ugarteche,
attorney, and the Secretary General was represented by Francisco V. García-Amador, Director of the
Department of Legal Affairs, all in conformity with Article 20 of the Rules of Procedure of the
Tribunal.
WHEREAS:
On August 10, 1972, Herbert N. Krebs Gargurevich filed a complaint, as authorized by the
Statute of the Administrative Tribunal, against the Secretary General of the Organization.
The Complainant states that he held the post of Chief of the Data Processing Office in the
Department of Administrative Affairs of the General Secretariat when the decision that has given rise
to this complaint was taken.
In presenting the facts, the Complainant states that on September 2, 1968, he received a
probationary appointment as a permanent staff member and that this appointment was confirmed six
months later. He further states that he is filing the complaint against the General Secretariat for its
decision of May 10, 1972, which came to his knowledge on the 18th of that month, by which he was
separated from the service in application of the provisions for reduction in force, Staff Rule 109.5.
The Complainant goes on to say that in 1968, on instructions from the Secretary General, he
joined the Department of Administrative Affairs; that he was later named Chief of the Data
Processing Office, where his supervisor evaluated his work as satisfactory.
The Complainant further states that the Secretary General's Executive Order No. 69-5, of
February 25, 1969, establishing the Data Processing Office, was not complied with, to the injury of
the Complainant; that although the Executive Order assigned full responsibility for these functions to
him, a few months later the Assistant Secretary for Management entered into a contract with an
outside firm, Synergistic Cybernetic, Inc., to organize the programming of some systems that had
been previously prepared and left unfinished by Price Waterhouse & Co.; that on October 19, 1971,
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he was removed as Chief of the Data Processing Office, and from that date on he was kept in an
isolated office and assigned no duties or functions for six months; that he requested the convocation
of a Grievance Committee, which was never called, and that on November 19 he was informed that
his services were terminated for reasons of "reduction in force;" that as a result of his protests this last
measure was not carried out; that the Grievance Committee finally heard the matter, and
recommended that he be made a reasonable offer of reassignment in accordance with Staff Rule
109.5(h)(ii) and that in addition he be given appropriate redress.
The Complainant further states that on January 1, 1972, the Secretary General approved
Executive Order No. 72-1, transferring all the functions previously assigned to the Data Processing
Office to the new Department of Program-Budget and Financial Services; that on February 24 the
General Secretariat sent him a letter informing him of the decision to dispense with his services as of
May 25, without having complied with Staff Rule 109.5; that on February 28 he requested the
convocation of the Advisory Committee on Reconsideration; that on March 6 his accounts with the
General Secretariat were settled so that he might return to his country of origin as soon as possible;
that on April 20, when he was already in Peru, the Advisory Committee on Reconsideration
recommended, as the Grievance Committee had previously done, that he be reinstated in service and
then be made the reasonable offer of reassignment referred to in Staff Rule 109.5. Despite all this, on
May 10 the Director of Personnel informed him of the decision of the General Secretariat that his
reinstatement was not possible and no reasonable offer of reassignment could be made.
In establishing the grounds for his complaint, the Complainant says that the decision being
challenged openly violates Staff Rule 109.5.
In formulating his specific petitions, the Complainant prays that he be reinstated in the post that
he held until September 1971 or its equivalent, in accordance with Staff Rule 109.5. As an alternative,
he prays that, in accordance with Staff Rule 109.5(h), he be made a reasonable offer of reassignment,
and, finally, in the event that the Secretary General should make use of the authority granted him in
Transitory Provision 2 of the Statute of the Tribunal, he seeks as indemnity the sum of US$200,000
plus the costs of the case. He also prays that the complete files of the proceedings on his case before
the Grievance Committee and the Advisory Committee on Reconsideration be placed in evidence.
WHEREAS:
On September 18, 1972, the Secretary General answered the complaint. He states that at no time
has the General Secretariat imputed the responsibility for any failure to the Complainant. The
abolition of his post did not originate in any specific recommendation, but resulted from the
reorganization that the Secretary General considered it desirable to order, under the authority granted
him by Article 119 of the Charter of the Organization, in view of the report submitted by the firm
Price Waterhouse & Co.
The Secretary General says that the liquidation of the Complainant's accounts before the case
was heard by the Advisory Committee on Reconsideration represented further consideration toward
Mr. Krebs, since it was done at his own request.
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As to the noncompliance with Staff Rule 109.5 that the Complainant attributes to the General
Secretariat, the Secretary General states that despite every effort it was not possible to make a
"reasonable offer" of reassignment, given the highly specialized nature of the Complainant's
profession, and that furthermore this rule does not impose any absolute obligation on the Secretary
General but rather limits the offer to cases in which it "is possible."
Finally, after referring to some other points mentioned by the Complainant, the Secretary
General specifically prays that the complaint be dismissed.
WHEREAS:
On October 20, 1972, the Complainant submitted his reply to the answer, in accordance with
Article 13.3 of the Rules of Procedure.
The Complainant says he has not asserted that the General Secretariat held him responsible for
the failure of the accounting systems of the Office of Financial Services, but that the moment chosen
for his separation appeared to coincide with the admission that there had been deficiencies in the Data
Processing Office.
In referring to the authority that Article 119 of the Charter of the Organization confers on the
Secretary General, he states that the final paragraph of that article adds that that authority shall be
exercised in accordance with such general standards and budgetary provisions as may be established
by the General Assembly. As to whether the abolition of his post was not fictitious but real, the
Complainant observes that a comparison of appendices 8 and 9 of his reply will clearly show that,
although there are some differences on secondary matters, the essentials are the same, which leads the
Complainant to believe that there has been yet another violation of Staff Rule 109.5(b).
As to the discretionary authority of the Assistant Secretary for Management, the Complainant
notes that a mere reading of Executive Order No. 69-5 suffices to destroy that interpretation. He adds
that according to Staff Rule 104.14 an offer of a post at a lower grade could have been made, but this
was not done.
Finally, the Complainant prays that his arguments be taken into account when a decision on his
petitions is taken and that orders be given to send him a copy of the complete files of the hearings
before the Grievance Committee and the Advisory Committee on Reconsideration.
WHEREAS:
On October 25, in accordance with Article 13.5 of the Rules of Procedure, the Secretary General
presented his response to the Complainant's reply.
The Secretary General repeats that all the pertinent provisions of the Charter, the applicable
Standards, and the Staff Rules were complied with, including Staff Rule 109.5, which the
Complainant specifically cites. He rejects the Complainant's argument that Executive Order No. 69-5
order was so rigid that it prevented the Assistant Secretary for Management from choosing advisory
services and procedures more appropriate for a special situation.
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After refuting the Complainant's other observations, the Secretary General reiterates the specific
petitions presented in his answer brief and prays that the case be placed on the list of matters pending
consideration by the Tribunal and be decided as soon as possible.
WHEREAS:
On October 31, 1972, the President of the Tribunal, in accordance with Article 14.1 of the Rules
of Procedure decided to request from the General Secretariat the complete files of the hearing of the
Complainant's case before the Grievance Committee and the Advisory Committee on
Reconsideration. The General Secretariat complied with this request, and the Secretary of the
Tribunal sent the Complainant a copy of each of these administrative files in accordance with Article
15.3 of the Rules of Procedure.
WHEREAS:
On November 21, 1972, the Secretariat of the Tribunal received a new statement from the
Complainant in which he clarified some comments in the October 25 response of the General
Secretariat. In responding to this new statement on December 15, the General Secretariat requested
that it be declared inadmissible as untimely, since it had been submitted outside of the two procedural
occasions permitted by the Rules of Procedure for the submission of statements. However, in case the
Tribunal should decide not to accede to his request, the Secretary General in turn commented on the
Complainant's statement.
WHEREAS:
On January 3, 1973, in accordance with Article 14.2 of the Rules of Procedure, the complaint
was placed on the list of matters pending consideration by the Tribunal during the next session.
WHEREAS:
In accordance with Article 6 of its Rules of Procedure, the Tribunal, consisting of its three
principal members, opened its session on May 14. On that date, the attorney Roberto MacLean
Ugarteche presented to the Tribunal a power of attorney executed by the Complainant in Lima, Peru,
on May 9. He requested the Tribunal to hold oral proceedings, in accordance with Article 17.4 of the
Rules of Procedure, as soon as possible, since he and his client had come from Lima for the sole
purpose of making a personal appearance at the oral proceedings.
The Tribunal decided to recognize the attorney's status as representative of the Complainant, to
grant his request, and to hold the oral proceedings on Tuesday, May 15, at 4:00 p.m. In the same
resolution the Tribunal set the terms for the proceedings.
On the same day, May 14, the Secretary of the Tribunal reported on a statement presented by the
Complainant on January 23. After extensive discussion it was decided that statements presented after
the time limits provided for in Article 13 of the Rules of Procedure should not be taken into account.
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As had been ordered, the oral proceedings were held on the afternoon of May 15. After this, in
accordance with Article 25 of the Rules of Procedure of the Tribunal, Carlos Giambruno was
designated to draft the judgment.
Having examined the proceedings, the Tribunal now
CONSIDERS:
1. It is competent to hear the present complaint, pursuant to Article II of its Statute.
2. The Complainant's post was abolished by the Secretary General in a legitimate application of
the authority granted to him by Article 119 of the Charter of the Organization, and in accordance with
the Provisional General Standards and other Secretariat regulations on personnel and administration.
3. The legitimacy of the abolition, however, does not prevent the Tribunal from examining as it
should the matter of compliance with the provisions governing the Complainant's rights as a
Secretariat staff member, his employment security, and his career service.
These principles, set forth specifically in the Staff Rules, are a guarantee established by the
Organization to protect staff members. They have been recognized by the Secretary General, who,
besides including them in the regulations, has spoken repeatedly of the need for stricter compliance
with their letter and spirit.
4. In the present case, it is necessary to determine whether, in the application of Staff Rule 109.5,
on reduction in force, the Complainant received the offer of reassignment called for in paragraph (h)
of that Rule or else detailed evidence has been presented proving the impossibility of making such an
offer.
It is quite obvious that the burden of proving the impossibility of making such an offer is on the
Organization, and that the proof must be clear and explicit, beyond any reasonable doubt. To hold
otherwise would be to admit the ineffectiveness of the protection that the Rule was intended to afford
the staff, who would then be exposed to arbitrary measures on the part of the authorities.
In this case, the evidence presented by the Organization to prove that it was not possible to offer
reassignment is insubstantial; it is limited to an internal administrative report on a quick oral survey in
which one positive answer, from the Secretariat for Technical Cooperation, does not even appear to
have been explored.
5. In verifying that the Complainant has exhausted the procedures provided for in the General
Standards and other regulations, this Tribunal cannot ignore the fact that in the course of meeting
these requirements, both at the purely conciliatory stage and at reconsideration, the pertinent
Committees unanimously decided that Staff Rule 109.5(h), on an offer of reassignment, had not been
complied with. Although it is true that the conclusions and recommendations of these Committees are
purely advisory, this Tribunal, expressing its substantial agreement with them, wishes to stress the
spirit of justice and the seriousness displayed in their work.
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6. The Complainant also mentions the moral injury he suffered by --as he believes-- having been
associated against his will with the failure of an operation for whose deficiencies he does not consider
himself responsible.
This Tribunal does not consider that this contention is valid or that consequent damage to the
Complainant's reputation has been proved, since the quality of his work and his professional
competence have been warmly acknowledged on several occasions by the General Secretariat itself.
7. Consequently, the Tribunal considers that the Secretary General should reinstate the
Complainant in the career service of the Organization in a post reasonably equivalent to the one he
held before his termination.
In the event of the option referred to in Section 2 of the Transitory Provisions of the Statute of
this Tribunal, an indemnity for damages must be set, bearing in mind the following criteria:
a. This indemnity shall be wholly independent of any other received by the Complainant pursuant to
the provisions that govern reduction in force.
b. The indemnity shall cover all the injury resulting from the failure to reinstate the Complainant and
any other damages.
By virtue of the foregoing, the Tribunal unanimously
RESOLVES:
1. The General Secretariat of the Organization of American States shall reinstate the
Complainant in the career service of the Organization, in a post reasonably equivalent to the one he
held previously.
2. In the event of the option provided for in section 2 of the Transitory Provisions of the Statute
of the Administrative Tribunal, the amount of the indemnity is hereby set at US$15,000.
Let notification be given.
Washington, D.C., May 18, 1973
Mozart Víctor Russomano, Esq. / President
Juan Bautista Climent Beltrán Esq. / Vice President
Carlos Giambruno, Esq. / Judge
Jorge L. Zelaya, Esq. / Secretary
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OEA/Ser.R
TRIBAD/7
18 May 1973
Original: Spanish
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