ADMINISTRATIVE TRIBUNAL OF THE AFRICAN DEVELOPMENT BANK

Transcription

1 ADMINISTRATIVE TRIBUNAL OF THE AFRICAN DEVELOPMENT BANK QUORUM: Professor Yadh BEN ACHOUR President Justice Salihu Modibbo Alfa BELGORE Vice President Justice Anne L. MACTAVISH Member Justice Benjamin Joses ODOKI Member APPLICATION No. 2012/01 Request for revision of Judgment No. 76 rendered on 15 July 2011 by the Administrative Tribunal in the case No. 2010/02, L. T. K. M. v. the African Development Bank Judgment No. 84 of the Administrative Tribunal rendered on 17 October 2012 I. THE FACTS 1. The Applicant, Ms. L. T. K. M., joined the African Development Bank on 29 April 1998, and at the time of her dismissal in February 2010 she was the Chief Diversity Officer in the Bank s Corporate Human Resources Management Department (CHRM) In the course of a meeting attended by the Applicant, the President of the Bank and others, certain comments were made to the Applicant by the President to which the Applicant took exception. The Applicant then took steps to challenge what she viewed harassment by the President of the Bank. These steps included the lodging of a complaint with the Vice President, Corporate Services (CSVP), alleging harassment by the President and the filing of a complaint of with the Bank s Staff Appeals Committee with respect to the alleged failure of the Bank to investigate her allegations of harassment. 3. In her complaint to the CSVP, the Applicant acknowledged that her complaint should have been submitted to the Committee for the Enforcement of the Code of Conduct for Executive Directors (Ethics Committee), given the position of the President. However, she purported to waive her right to proceed in accordance with the rules relating to complaints against an Elected Officer of the Bank, and instead submitted her complaint under the rules of Presidential Directive No. 04/2006 establishing rules and procedures for dealing with harassment in the Bank. 4. By a letter dated 12 February 2010, the Vice President, Corporate Services, (CSVP), informed the Applicant of the termination of her employment with the Bank with immediate effect and without notice. As a result, on 27 April, 2010, the Applicant filed an Application with this Tribunal for wrongful dismissal against the Bank. She also sought damages and costs for the alleged failure of the Bank to investigate her complaint of harassment against the President of the Bank. 1 Judgment No. 76 of 15 July 2011, para.1.

2 5. On 15 July, 2011, the Tribunal rendered its Judgment No. 76 in Application No. 2010/02. The Tribunal found that the Applicant had indeed been wrongfully dismissed from the Bank, and granted judgment in her favour. However, the Tribunal ruled that it was not competent to hear the Applicant s harassment complaint against the President of the Bank as a result of the failure of the Applicant to follow the appropriate procedures in this regard. 6. The Applicant then sought an interpretation of the Tribunal s July 15, 2011 decision, alleging that certain operative provisions of that decision were incomplete. In a decision dated March 9, 2012, the Tribunal rejected this request. In rejecting this application, the Tribunal noted that The Decision made by the Tribunal on July 15, 2011, is unambiguous and complete. Consequently, the Applicant s application for interpretation should be dismissed, and the Applicant has no further entitlement to any additional remedy for the loss of her employment On January 29, 2012, the Applicant filed a further application seeking a revision of the Tribunal s July 15, 2011 decision. The Applicant s current application is based upon a letter that she received from the Secretary to the Staff Appeals Committee dated July 29, This letter informed the Applicant that the mandates of the members of the Staff Appeals Committee were about to expire and that she would have to await the appointment of a new Committee before her case could be dealt with. 8. This application was brought pursuant to Rule XXII [Article XII (iv) of the Statute of Tribunal], based upon what the Applicant asserts is a new fact that, if known, would have had a decisive influence on the Tribunal and might have affected the Tribunal s original decision insofar as the said Judgment rejects Applicant s request to be awarded compensation for the unacceptable delay in proceedings of the Applicant s case before the Respondent s Staff Appeals Committee The Applicant further submits that as a result of this letter declining jurisdiction, she has been prejudiced by what she asserts is an inordinate delay of twenty (20) months in the proceedings before the Staff Appeals Committee. Finally, the Applicant contends that as a result of this delay, she has suffered material damage for which she deserves compensation by the Bank. 10. The Respondent contends that this application is without merit and constitutes an abuse of the Tribunal s process pursuant to Article X of the Statute of the Tribunal and Rule XXII of the Rules of Procedure. 4 Furthermore, in view of the damages awarded with costs in the first judgment against the Bank, the Respondent maintains that no additional award could be legitimately based upon the information contained in this letter, or indeed, based on the delay in rejecting the Appeal by the Staff Appeals Committee. The respondent thus submits that this Application should be rejected in its entirety. 2 Judgment No.78 of 9 March 2012, paras Ibid. 4 Respondent s Answer, para. 2. 2

3 II. ARGUMENTS OF THE PARTIES The Applicant 11. The Applicant argues that had the Staff Appeals Committee s decision been communicated to her before the Administrative Tribunal rendered Judgment No. 76, it would have had a decisive effect on the outcome of that case, insofar as the award of damages for the delay was concerned. 5 Second, the Applicant contends that the new fact arose from the facts communicated to her subsequent to the Judgment No. 76 on 15 July 2011, wherein the Secretariat of the Appeals Committee informed her by a letter dated 20 December 2011, that it was incompetent to entertain her harassment claim against the President of the Bank. 6 Third, she alleges bad faith on the part of the Secretary of the Staff Appeals Committee and the Respondent for the inordinate delay in reaching a decision in her case before the Appeals Committee The Applicant further contends that the Respondent s Staff Appeals Committee s failure to deal with her appeal within the statutory time limit for the disposing of appeals violated her right to a speedy appeal. 8 She argues that the letter of the Secretary to the Staff Appeals Committee to her Counsel dated 29 July 2011, and received 10 August 2011, relating to the renewal of the Appeals Committee s mandate, constitutes a new fact in the context of this Request for Revision of Judgment The Applicant also argues that the Administrative Tribunal did not expressly refer to her Request for damages for delay in appeal proceedings and without expressly ruling on this request. Furthermore, that she is left to. believe that either the Tribunal did not consider her request for damages for the delay in appeal proceedings for whatever reason, or that it ruled on it when rejecting all other claims. 14. The Applicant also contends that her request for damages for the delay in the appeal proceeding was contained in her Additional Submission dated 17 March 2011 and declared receivable by the Tribunal s President, in a letter from the Executive Secretary of the Tribunal dated 5 April In addition, the Applicant argues that during the oral hearing in July 2011, she made a request that moral damages be awarded for the failure of the appeal proceedings in an amount to be determined by the Tribunal As a result of issues raised in the Respondent s Answer dated 19 April 2012, notably the Respondent s request for dismissal of this application, the Applicant argues that her Application is admissible, stating that: The Respondent s allegation that the Applicant had deliberately engaged in inadmissible appeal proceedings is blatantly wrong and constitutes a distortion of facts. She 5 Application No.2012/01, para Application No. 2012/01, paras Application No. 2012/01, paras ; Annex 3 thereto. 8 Application No. 2012/01, para Application No. 2012/01, paras ; Annex 12 thereto. 10 Annex 4 to this Application. See: Verbatim record of XIXth Session of the Tribunal from 11 to 15 July 2011, para

4 argues: Subsequent to the Vice President s decision not to follow up on her complaint she had a right to challenge the Vice President s decision and to seize the Appeals Committee. Consequently, the Respondent s plea of abuse of process must fail Indeed, the Applicant s Reply to the Respondent s Answer essentially recapitulates the same arguments that were advanced in her original Application for Revision of the Judgment of 15 July 2011, filed on 29 January These include the alleged delay in resolving her complaint of harassment by the Staff Appeals Committee and the lack of good faith on its part, allegedly causing her both moral and material prejudice. 17. The Applicant also notes that: the Respondent repeatedly insinuates that the Applicant was herself responsible for the undue delay in the appeals proceeding in view of her request that the Staff Appeals Committee suspend the appeal proceedings until the Administrative Tribunal has administered justice. 13 This request, she argues, should be put in the context of keeping the costs of the appeal proceedings to the minimum, and by so doing, mitigating her damages. In addition, the Appeals Committee s failure to rule on her request for suspension of action caused her important material damages Finally, the Applicant accuses the Staff Appeals Committee of obstruction of justice by withholding the information with respect to the non existence of the Staff Appeals Committee, causing her to incur in legal and other costs. In consequence, she submits that she is entitled to her legal costs for this request on account of the Bank. 15 The Respondent: 19. The Respondent submits that the Application is without merit and constitutes an abuse of the Tribunal s process contrary to Article X of the Statute of the Tribunal and Rule XXII of the Rules of Procedure. 16 It notes that the criteria for determining the admissibility or otherwise of an application for revision of a judgment are set out in Sections 1 and 2 of Rule XXII of the Tribunal s Rules of Procedure. As such, the test as to whether or not these facts would have had a decisive influence on the judgment of the Tribunal is by determining whether the Tribunal would have taken the view that the Applicant had been prejudiced by the ignorance of this information or fact The Respondent further contends that as a result of the Tribunal having rejected all of the Applicant s other claims in Judgment No. 76 of July 15, 2011, there exists no further basis for the Applicant to raise this claim. 18 The Respondent submits that the critical questions to be considered with respect to the admissibility of this Application are: 11 Applicant s Reply to Respondent s Answer, para Applicant s Reply to Respondent s Answer, paras. 8 10, 15 18, Applicant s Reply to Respondent s Answer, para. 26, in reference to Respondent s Answer, para. 10 (ii) and (iii). 14 Applicant s Reply to Respondent s Answer, paras Application, paras and annexes 7 8, and Respondent s Answer to the Request for Revision of Judgment, No.2012/01, para Rejoinder to the Applicant s Reply, p.3, para Respondent s Answer, para.9. 4

5 Even if the fact relied on by the Applicant was unknown to her or the Tribunal at the time of the judgment, and she was not responsible for her ignorance of this fact, would it have had a decisive influence on the judgment of the Tribunal as alleged by the Applicant at paragraph 32 of her Request for a Revision of the Judgment? The Respondent also submits that the Applicant s Request for Revision of Judgment is an abuse of process under Article X of the Statute of the Tribunal, noting that: At paragraph 108 of her Application No.2010/02, the Applicant stated that the proper forum for addressing her harassment allegation was the Ethics Committee of the Board of Directors. The Tribunal itself recognized that the Applicant knew the correct forum for dealing with this claim (paragraphs 5 and 43 of Judgment No. 76 of 15 July 2011) (Annex 1 of Request for Revision of Judgment). In this regard, the Tribunal commented However, the Applicant had no power to waive the requirements of Article 2 of the Board of Governors Resolution. In knowingly failing to follow the appropriate procedure, the Applicant failed to exhaust her internal administrative remedies Furthermore, the Respondent submits that the facts or information contained in the Appeals Committee s letter to the Applicant could have made no difference to the Tribunal s decision. 23. The Respondent also takes issue with what it says are the serious and unfounded allegations of bad faith made by the Applicant against the Executive Secretary of the Staff Appeals Committee. III. REQUESTS BY THE PARTIES The Applicant 24. I. On the procedural side, the Applicant asks the Tribunal : 1. To declare this request for the Revision of Judgment No. 76 to be found to be fully admissible. II. On the material side: 2. To declare that Judgment No. 76 of 15 July 2011 must be revised as follows: In addition to the awards granted subsequent to Application 2010/02, the Applicant asks that the Tribunal order that: 1. The Respondent must pay the Applicant US$20,000 for the wrongful delay in the appeal proceedings and related costs incurred; 2. The Respondent must pay the Applicant US$10,000 in legal fees for the present proceedings. 19 Respondent s Answer, para Respondent s Answer to Application No.2012/01, para.10. 5

6 The Respondent 25. The Respondent asks the Tribunal: To dismiss the Request for a Revision of the Judgment No. 76 rendered on 15 July 2011 on the grounds that it is an abuse of process because there exists no fact or a document discovered which by its nature might have had a decisive influence on the judgment of the Tribunal and which at the time of the judgment was unknown to the Tribunal and to the party to the case making the application for the revision and such ignorance was not the responsibility of that party. 21 IV. THE LAW 26. The Tribunal understands the Applicant s frustration with the Staff Appeals Committee process. She asked the Committee to suspend its proceedings, and never received a response to that request. She repeatedly sought information regarding the status of her appeal, and was never provided with the courtesy of a response. Moreover, as the July 29, 2011 letter notes, the Applicant s appeal ought to have been dealt with by January 3, 2011, in accordance with the Staff Rules of the Bank. At that point there was a duly constituted Staff Appeals Committee in existence. No explanation has been provided as to why the Applicant s appeal could not have been dealt with at that time, nor has any explanation been provided as to why the Applicant was not provided with any information with respect to the status of her appeal until two weeks after the Tribunal rendered its judgment on July 15, This conduct does not reflect well on the Staff Appeals Committee and undermines its credibility as a meaningful avenue of recourse for Bank employees. 27. That said, the Tribunal must determine whether the Applicant has established grounds for the revision of its July 15, 2011 judgment. 28. Article XII (iv) of the Statute of Tribunal provides, in part, that In 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 any party, any interested party may request the Tribunal, within a period of six months after it has acquired knowledge of such fact, to revise the judgment Similarly, Rule XXII (1) of the Tribunal s Rules of Procedure provides that A party may request revision of a judgment issued by the Tribunal, but only in the event that a fact or a document is discovered which by its nature might have had a decisive influence on the judgment of the Tribunal and which at the time of the judgment was unknown to the Tribunal and to the party to the case making application for the revision and such ignorance was not the responsibility of that party. 30. Thus, the threshold question for the Tribunal is whether the letter sent to the Applicant by the Secretary to the Staff Appeals Committee dated July 29, 2011, informing her that the mandates of the members of the Staff Appeals Committee were about to expire and advising her that she would have to await the appointment of a new Committee before her case could be dealt with 21 Respondent s Answer, Conclusion. 6

7 might have had a decisive influence on the judgment of the Tribunal. This is clearly not the case. 31. The issue of the Applicant s claim for damages and the costs which she alleged resulted from the delays in the Staff Appeals Committee process was argued at some length in the course of the original Tribunal proceedings. (See the Verbatim Record of the XIX Judicial Session from July 11 to 15, 2011 at pages 27 29, 39, 59 60, 61, 66 67, and 81). At that time, the Tribunal was made fully aware of the Applicant s concerns in this regard. 32. However, the Tribunal concluded that it did not have the competence to deal with the issues relating to the Applicant s harassment complaint. (See the Verbatim Record of the XIX Judicial Sessions from July 11 to 15, 2011 at page 39 and the Tribunal s July 15, 2011 judgment at para. 49). 33. This finding is further reflected in the Decision section of the judgment. There the Tribunal provided the Applicant with compensation for wrongful dismissal and costs and then specifically stated that All other claims are rejected. 34. There is nothing in the letter sent to the Applicant by the Secretary to the Staff Appeals Committee on July 29, 2011 that could confer on this Tribunal the competence to deal with issues relating to the Applicant s harassment complaint that it did not otherwise have. 35. As a result, the information contained in the Secretary to the Staff Appeals Committee s July 29, 2011 letter could not possibly have had any influence on the judgment of the Tribunal, let alone a decisive influence on that judgment. 36. Before closing, the Tribunal would like to take this opportunity to emphasize that all of the Applicant s claims and arguments were carefully considered in the course of the Applicant s Application to the Tribunal. Indeed, it was only after careful consideration of all of the Applicant s claims that the Tribunal made the remedial order appearing in the Decision section of its judgment of July 15, 2011 in which it rejected all of the Applicant s claims, save and except for her claims for wrongful dismissal and costs. 37. The Tribunal would further note that this is the second time that the Applicant has come back to the Tribunal seeking additional relief. The Tribunal would draw the Applicant s attention to Article X (1) of the Tribunal s Statute, which provides that [t]he Tribunal may order that reasonable compensation be made by the Applicant to the Bank for all or part of the cost of defending the case, if it finds that: a) the application was manifestly without foundation either in fact or under existing law, unless the Applicant demonstrates that the application was based on a good faith argument for an extension, modification, or reversal of existing law; or b) the Applicant intended to delay the resolution of the case or to harass the Bank 38. While the Bank has not sought such an order in relation to this Application, it is reasonable to assume that such a request on the part of the Bank may be forthcoming in the event that the Applicant makes any further attempts to have the Tribunal revisit its original decision. 7

8 V. THE DECISION 39. Based upon the foregoing, the Applicant s application for revision of the Tribunal s July 15, 2011 judgment is dismissed. Professor Yadh BEN ACHOUR President Mrs. Albertine LIPOU MASSALA Executive Secretary Counsel for the Applicant Carolin ALVERMANN Attorney at Law Counsel for the Respondent Mr. Kalidou GADIO Mrs. Almaz TADESSE Mrs. Omesiri AKPOFURI IDRIS General Counsel Division Manager Chief Legal Counsel 8