ADMINISTRATIVE TRIBUNAL OF THE AFRICAN DEVELOPMENT BANK QUORUM: Professor Yadh BEN ACHOUR President Justice Salihu Modibo Alfa BELGORE Vice President Justice Benjamin Joses ODOKI Member Justice Anne L. MACTAVISH Member Justice Leona Valerie THERON Member I. THE FACTS APPLICATION No. 2013/01 N. K., Applicant, African Development Bank, Respondent Judgment No. 86 of the Administrative Tribunal rendered on 20 June 2014 1. The Applicant, was until her termination, employed at the Bank s Field Office in Lusaka, Zambia, as Finance & Administrative Assistant, on a Fixed Term Contract on Grade GS8 which was last renewed in December 2012. 1 Her last contract should have ended on 17 December 2015 but it was terminated on 20 August 2013, for abandonment of post. 2. On 22 October 2013, the Applicant filed an Application against the Bank for wrongful termination of employment. On 20 January 2014, the Respondent filed a preliminary Motion to Dismiss the Application, pursuant to Article III (2) (i) of the Tribunal s Statute and Rule XIV (1) and (2) of the Tribunal s Rules of Procedure. 3. On 03 March 2014, the Applicant filed an objection to the Respondent s preliminary Motion to Dismiss her substantive Application. According to the Applicant, her dismissal without notice was in total disregard of her sickness and evidence contained in her sick notes. Furthermore, she alleges that the Bank did not follow due process, and has failed to act in accordance with internationally accepted practices that protect her as an international civil servant. 2 II. ARGUMENTS OF THE PARTIES The Respondent 4. The Respondent submits that the Applicant s Application should be dismissed for failure to exhaust available internal administrative remedies. 3 5. In support of its Motion, the Respondent relies on Article III, paragraphs 1 and 2 of the Statute of this Tribunal which states that: 1 Motion to Dismiss, paras. 1 2. Annex 1 Motion 2 Applicant s Objection to Motion, para.1 3 3 Motion to Dismiss, paras.26 27, 29 30
1. The Tribunal shall be competent to hear and pass judgment upon any application by a member of staff of the Bank contesting an administrative decision for non observance of the contract of employment or the terms of appointment of such staff member. 2. No application shall be admissible unless: (i) (ii) The applicant has exhausted all other administrative review remedies available within the Bank, except in cases where the applicant and the Bank have agreed to submit the application directly to the Tribunal ; and the application is filed within ninety days after the latest of the following: (a) (b) (c) occurrence of the event giving rise to the application, receipt of notice (after the applicant has exhausted all other remedies available within the Bank) that the relief asked for or recommended will not be granted, or receipt of notice that the relief asked for or recommended will be granted, and the expiry of thirty days after receipt of such relief being granted. 4 6. The Respondent contends that all disputes with aggrieved staff must comply with the obligation to exhaust internal recourse mechanisms within the Bank s dispute resolution system, including the Staff Appeals Committee. Therefore, it posits that staff are required to exhaust the recourse mechanisms before coming to the Tribunal. 7. The Respondent also submits that this Application does not fall within the exceptional circumstances which could justify its admission without exhausting the internal remedies. Indeed, the record shows that the Applicant had in fact written to the CSVP on 30 August 2013 and also engaged both the Ethics Officer of the Bank, and the Ombudsman in pursuit of a resolution of her problem. 5 All these steps are consistent with the two alternative procedures prescribed in Staff Rule 103.04 (a) which includes administrative review or conciliation by the Ombudsman. 6 8. While these facts are not implicitly denied by the Respondent, 7 it nevertheless asserts that they do not exonerate the Applicant from mandatory recourse to the Staff Appeals Committee, which she has circumvented by coming directly to the Administrative Tribunal. 8 The Bank further contends that the jurisprudence of this Tribunal, 9 the World Bank Administrative Tribunal and the International Labour Organisation, among others, supports the need for strict adherence to the requirement to exhaust internal recourse mechanisms before approaching the administrative tribunals. 10 9. In particular, the Respondent contends that under Staff Rule 103.04 (a), one of two alternatives is open to an aggrieved staff member as the initial step for contesting an 4 Statute of the ADB Administrative Tribunal, 1998, Article 3 (2) (i) and (ii) 5 Motion, para.24; Applicant s Application, page 5 6 Motion, para.23, and Annex 13 of the Motion 7 Motion, paras.24, 25 8 Motion, paras.23, 26 9 Motion, para.20 10 Motion, paras.21 22 2
administrative decision. These are either a request for administrative review by the Vice President, Corporate Services, CSVP, or a request for conciliation by the Ombudsperson. 11 Whichever one of the these recourse procedures the staff member may select, the further step of filing an appeal with the Staff Appeals Committee is mandatory. It also refers the Tribunal to its own jurisprudence on Staff Rule 103.04(a) in Application Nos. 1999/04 05 06 in which the Tribunal dismissed the complaints for failure to exhaust administrative remedies. Accordingly, the Respondent submits that the Application is premature and inadmissible and asks the Tribunal to dismiss it. 12 10. Finally, the Respondent requests the Tribunal to dismiss this Application because the Applicant had failed or omitted to disclose an amicable settlement ostensibly reached with the Bank on 27 November 2013, as part of an ongoing conciliatory effort by the Office of the Ombudsman. Consequently, since this agreement was concluded after she filed her Application with the Tribunal on 22 October 2013, it has in effect put an end to her complaint. 13 The Applicant 11. The Applicant opposed the Motion to Dismiss her application. She notes that pursuant to Rule 103.01 paragraphs (a) and (b) of the Bank s Staff Rules, the Staff Appeals Committee is not charged with considering administrative decisions such as was served on me being the termination of contract without notice. Further, according to her, Part (a) of Staff Rule 103.01 relates to separation for unsatisfactory performance, neither did it involve denial or withholding of a staff benefit, promotion or merit salary increase and reassignments Therefore, since the reason for her termination was for abandonment of post, it became impractical to submit her case to the Staff Appeals Committee. 14 She stated that the letter terminating her appointment without notice was served on her on 20 August 2013. 15 12. The Applicant contends that Staff Regulation 10.3 (a) refers to the internal machinery which does not specifically mention the Staff Appeals Committee. As such, reference therein to appeals of disciplinary measures under Staff Regulation 10.3 (b) and 10.3 (c) are subject to direct appeal to the Administrative Tribunal by virtue of Staff Rule 102.09. Accordingly, she concluded that these provisions do not refer to any other body or institution by name; and therefore, it was logical to submit the application directly to the Tribunal. 16 13. In addition, the Applicant states that, I wish to confirm that the reconciliation process was agreed on 27 November 2013 but refute the Respondent s guidance that the matter has been settled. 17 However, despite her admission that there was a reconciliation process, she argues that this matter has not been disposed of by the agreement reached through that process. Furthermore, even if she were to submit her case to the Staff Appeals Committee, 11 Motion, para.23 12 Motion, paras.26 27, 29 30 13 Motion, paras.27, 31 14 Applicant s Objection to Bank s Motion, pages 1 2 15 Applicant s Objection to Motion, para.11 16 Applicant s Objection to Motion, paras.16 and 20 17 Applicant s Objection to Motion, para.21 3
the time limit for doing so had expired. 18 Finally, she argues that notwithstanding that the time limit for recourse to the Staff Appeals Committee had expired, in her case, the..nonprovision of notice for the administrative decision left no scope for it to be heard before the Staff Appeals Committee. 19 III. REQUESTS OF THE PARTIES The Respondent 14. The Respondent asks the Tribunal to dismiss the Application on grounds of inadmissibility for failure to exhaust available internal administrative remedies. The Respondent added that an out of court settlement was reached which, according it, has resolved the dispute. The Applicant 15. The Applicant asks the Tribunal to hear and determine her application on the merits. IV. THE LAW 16. The Tribunal should first adjudicate on the Motion to Dismiss filed by the Respondent. 17. In support of its Motion to Dismiss, the Respondent raises the rule according to which the internal recourse mechanisms must first be exhausted, as stipulated in Article 3, paragraphs 1 and 2 of the Statute and in Staff Rule 103.04. Indeed, Staff Rule 103.04, which explicitly refers to Regulation 10.3 of the Staff Regulations, entitled Settlement of Disputes, provides for, at the discretion of the Applicant and prior to filing a case before the Tribunal, either a request for administrative review submitted to the Vice President in charge of Corporate Services, or a reconciliation process before the Ombudsperson, followed by recourse to the Appeals Committee, where applicable. 18. The Tribunal hereby underscores that all these procedures do apply, as stipulated in Regulation 10.3 of the Staff Regulations, to the settlement of disputes arising from contractual rights and benefits of staff members or the development of their career. Regulation 10.3 of the Staff Regulations and the subsequent provisions of the Staff Rules relate to disputes and applications in respect of the contract of employment or the terms of appointment of the staff members (Regulation 10.3(c)). Consequently, these concern disputes of a contractual nature relating to the interpretation or performance of employment contracts between the Bank and a staff member. 19. The Tribunal should therefore decide whether this case falls under the category provided for in Regulation 10.3 of the Staff Regulations, which would require exhausting all the internal recourse mechanisms before filing the case in the Tribunal. 18 Applicant s Objection to Motion, para.27 19 Applicant s Objection to Motion, paras.11 and 18; Annex 2 to Applicant s Objection 4
20. The decision contested in this case, as admitted by the Respondent itself in its letter of termination dated 20 August 2013, is regulated by Rules 33.04 and Regulation 610.04 of the Staff Rules on unauthorized absences. Rule 33.04 specifies that an unauthorized absence is liable to disciplinary action. Regarding Rule 33.04 (b), it stipulates that unauthorized absence of more than 10 consecutive working days shall be considered as abandonment of post. 21. Rule 610.4 on Separation for Abandonment of Post stipulates in paragraph (a) that in the event of abandonment of post resulting from an absence for 10 consecutive working days or more, the appointment (of the staff member) shall be deemed to have (been) terminated. Consequently, as indicated in paragraph (b), notice of termination shall be given summarily and addressed to the staff member at his/her last known address. 22. Two fundamental conclusions should be drawn from these provisions. First, in the event of unauthorized absence, the Bank is entitled to take the necessary disciplinary measures. This implies that with respect to disciplinary matters, reference should be made to the provisions of Chapter 10 of the Staff Regulations on Disciplinary Measures, Recourse, Compensation and Liability. The second conclusion is that in the most serious cases, that is, unauthorized absence equal to or more than 10 consecutive working days, the Bank, without resorting to the ordinary mechanisms of the Disciplinary Committee provided for in Chapter 10 of the Staff Rules, is entitled to take the most severe disciplinary sanction, that is, summary termination of the contract, without compensation, as laid down in Rule 610.04 (c) of the Staff Rules. 23. Applications regarding disciplinary matters are subject to Regulation 102.09 of the Staff Regulations and according to which A staff member against whom a disciplinary measure has been imposed shall have the right to appeal such a measure, and may lodge his/her appeal with the Administrative Tribunal within sixty (60) days of the date of the letter of notification of the disciplinary measure. This implies that prior recourse to the Staff Appeals Committee is not applicable to disciplinary matters; it is applicable only in disputes arising from the interpretation or performance of contracts signed between the Bank and its staff members. This principle is explicitly confirmed by Rule 103.01 on the Staff Appeals Committee. Indeed, paragraph (c) of this Rule states that the Appeals Committee shall not be competent to consider the following: (iii) an appeal against the imposition of disciplinary measures, including summary dismissal. 24. Considering that the disputed decision of 20 August 2013 is disciplinary by nature, recourse to the Staff Appeals Committee, contrary to the Respondent's contention, is not applicable in this case. 25. In view of the foregoing, the Bank s Motion to Dismiss on the basis of inadmissibility for failure to exhaust available internal administrative remedies, cannot be entertained by the Tribunal and the motion should be dismissed. 26. In paragraph 28 of its Motion to Dismiss and under the heading Further Disclosure, the Respondent stated that a settlement had been reached between the Applicant and the 5
Respondent on 27 November 2013. The Respondent considers that the said settlement has put an end to the petition. The Applicant contests the existence of such a settlement. 27. However, at this stage in the case, and on the pleadings as they stand, that point can neither be examined nor decided. It will be considered during the next sitting of the Tribunal and if necessary, the Tribunal will consider the case on its merits. V. THE DECISION 28. In light of the foregoing, the Tribunal hereby decides: 1. The Motion to Dismiss filed by the Respondent is dismissed. 2. During its next sitting, the Tribunal will decide whether an agreement has been effectively reached by the two parties, thus putting an end to the petition of the Applicant. 3. The Tribunal hereby orders resumption of the written procedure. 4. The Respondent is invited to submit its written rebuttal on the merits of the case within a period of thirty (30) days of the date of the present decision of the Tribunal. Yadh BEN ACHOUR President Albertine LIPOU MASSALA Executive Secretary THE APPLICANT N. K. COUNSEL FOR THE RESPONDENT Kalidou GADIO Almaz TADESSE Fathallah EL GUERNAOUI General Counsel Division Manager Principal Legal Counsel 6