Withdrawal.

Withdrawal.

The issues before the Tribunal are the interpretation and validity of the release provision contained in the agreement establishing the conditions for the Applicant’s separation from the Bank.

In this case, the Applicant’s ninth presentation to the Tribunal, he complains against the decision to grant him as a result of the 1984 salary review a salary increase which was 2.0% less than the 4.0% uniform salary adjustment to the salary structure. This application is substantially similar to that filed by the Applicant in Decision No. 22 concerning his 1983 salary increase, insofar as it questions the failure to grant the Applicant in 1984 a salary increase equivalent to the uniform adjustment to the salary structure.

In this case, the Applicant’s eighth presentation to the Tribunal, he requests revision under Article XIII of its Statute, of the Tribunal’s judgment in Decision No. 22 of March 22, 1985. Article XIII allows for a limited exception to the general principle that judgments are “final and without appeal” enunciated in Article XI of the Statute. This exception is limited to the event of the “discovery of a fact which by its nature might have had a decisive influence on the judgment of the Tribunal and which at the time the judgment was delivered was unknown both to the Tribunal and to that party.”

The first issue that the Tribunal must address is whether the Respondent’s failure to pay to the Applicant a “safety-net” tax allowance violates his contract of employment or the terms of his appointment.  The Tribunal must also decide whether the Respondent has committed a further violation of the Applicant’s terms of employment by breaching certain assurances of confidentiality given by Bank officials in the handling of tax data submitted by staff members claiming the safety-net reimbursement.

The issue before the Tribunal in this case is whether the Respondent failed to observe the provisions of the contract of employment or the terms of appointment of the Applicant by refusing to confirm her at the end of her probation and by terminating her employment as of June 30, 1985.

The Applicant contests the decision to terminate her employment at the end of her probationary period on three grounds: (i) The Bank’s failure to consult all her supervisors prior to termination, which resulted in the evaluation of her performance being biased; (ii) The Bank’s failure to provide ongoing coaching and feedback during the probationary period, as required by PMS 4.02; and (iii) The Bank’s failure to prepare Anniversary Evaluation Reports, in violation of PMS 4.01, which is applicable to probationary officers in accordance with PMS 4.02.

The issues before the Tribunal are the interpretation and validity of the release provision contained in the agreement of February 11, 1985 in which arrangements were made for the Applicant's separation from the Bank. Initially, it must be determined whether the release was broad enough to encompass claims by the Applicant against the Respondent not directly relating to his early retirement but rather relating to the adverse salary decision made by the Respondent in October 1984. It was this salary decision that was reviewed by the Appeals Committee and that is now challenged before this Tribunal. 

The Applicant contends that the decisions of the Respondent to remove him from the position of Division Chief and reassign him to a non-managerial position at a lower grade violated his contract of employment and the terms of his appointment. He bases his contention on two main grounds: (a) that the decisions lacked substantive factual basis since the assessments of those who took them were based on materially inaccurate information; (b) that the Respondent’s handling of the Applicant’s case and the procedures followed to reach these decisions violated the basic requirements of due process of law.

The essence of the present case is a challenge by the Applicant to the validity of the decision terminating her employment with the Bank. That the Bank has the power to terminate a staff member’s employment for unsatisfactory performance there is no doubt. The exercise of this power is a matter within the Bank’s discretion and its appraisal in this respect is final unless the decision constitutes an abuse of discretion, being arbitrary, discriminatory, improperly motivated or carried out in violation of a fair and reasonable procedure. (See Saberi, Decision No. 5 [1981], para. 24; Suntharalingam, Decision No. 6 [1981], para. 27.)

The main issue raised by the Applicant is whether there has been a non-observance of the conditions of her employment because of alleged discrimination on the basis of sex and sexual harassment, imputable to the Respondent.

The Respondent contends that the merits of this dispute ought not to be decided by the Tribunal for either of two reasons: the Applicant voluntarily entered into an agreed settlement of his claims against the Respondent, and his resort to administrative review of his severance from employment was commenced out of time. The Applicant's contention is that the true reason for the termination of the Applicant’s employment was revenge or retaliation for having “blown the whistle” on the management practices of a high executive of the IFC. Moreover, he claims the procedures used by the Respondent in connection with the termination were improper and in violation of the Respondent’s policies and practices. There were no factual findings as to the reasons for the termination; no warning or written notice of the termination was afforded; and the Applicant had no opportunity to defend himself.

The central issue before the Tribunal in this case is whether the Respondent failed to observe the provisions of the contract of employment or the terms of appointment of the Applicant by terminating her employment on January 4, 1984 on the basis of unsatisfactory performance.

The Applicant challenges both the Respondent’s general policy regarding the reassignment of OED staff and the application of that policy to his particular case. As to both the policy and its application, this Tribunal has the authority to examine only whether there has been “nonobservance of the contract of employment or terms of appointment” of the Applicant. It therefore becomes necessary to determine whether the Respondent has violated some mandatory Bank policy or procedure, or whether it has otherwise abused its discretion by taking action that was “arbitrary, discriminatory, improperly motivated or carried out in violation of a fair and reasonable procedure.” (Suntharalingam, WBAT Reports 1982, Decision No. 6, paragraph 27).

 In this seventh presentation before the Tribunal the Applicant complains against the decision to grant him a salary increase which was 0.7% less than the 6.4% uniform adjustment to the salary structure. He invokes in support of his claim the Memorandum of February 14, 1978, which promised reassigned Tourism staff members that “on reassignment, there would be no reduction in current salary”. While assigned to an “M” position, the Applicant was, in accordance with this provision, allowed to retain his “N” level salary and grade on a personal basis.

In this sixth presentation before the Tribunal the Applicant complains of the non-execution or unreasonable execution of the Tribunal’s prior decisions in his case, on three grounds: (i) that the Respondent failed to place his name on lists of candidates for “N” level positions and that the only time this was done there was harassment and reprisals against him for having appealed earlier decisions of his superiors;(ii) that the Respondent unfairly refused to accept his provisional and conditional acceptance of the option to leave the Bank; and (iii) that the outplacement assistance offered to him by the Tribunal’s decision was unfairly handled by the Respondent.

In this fifth presentation before the Tribunal, the Applicant asks the Tribunal to rescind the decision of the Appeals Committee in Appeal No. 58, of March 6, 1984, referred to in paragraph 5 above. Under its Statute, the Tribunal cannot hear appeals against recommendations of the Appeals Committee. However, in this case, the Tribunal interprets the Application as being addressed to the Respondent's implied decision not to take the remedial action requested by the Applicant, in reliance upon the Appeals Committee's conclusion not to assume jurisdiction in this case.

In this fourth presentation before the Tribunal, the Applicant asks the Tribunal to rescind the decision of the Appeals Committee in Appeal No. 57 of March 6, 1984 summarized in paragraph 5 above. Under its Statute the Tribunal cannot hear appeals against recommendations of the Appeals Committee. However, in this case the Tribunal interprets the Application as being addressed to the Respondent’s implied decision not to take the remedial action requested by the Applicant, in reliance upon the Appeals Committee’s conclusion not to assume jurisdiction in this case.

In this third presentation before the Tribunal, the Applicant asks the Tribunal to rescind the decision in Appeal No. 50, of October 18, 1983, of the Appeals Committee, summarized in paragraph 5 above. Under its statute the Tribunal cannot hear appeals against recommendations of the Appeals Committee. However, in this case, the Tribunal interprets the Application as being addressed to the Respondent’s implied decision not to take the remedial action requested by the Applicant in reliance upon the Appeals Committee’s conclusion not to assume jurisdiction in this case.