Category: Accountability

What does a guilty sexual harasser deserve? According to UNAT: dignity and respect.

In a UNAT judgment issued last week, the Tribunal appallingly held that sexual harassment offenders are entitled to be treated with dignity and respect, just like victims and survivors.


A P-3 staff member of the United Nations Office on Drugs and Crime (UNODC) reported sexual harassment by both her first reporting officer (FRO) and her second reporting officer (SRO). The staff member was placed on certified sick leave for two months. Following her return from sick leave, she filed a complaint with OIOS against both of her supervisors and requested to be reassigned to avoid any further interaction and unnecessary contact with her harassers.


After a significant delay, OIOS found the FRO and SRO guilty of sexual harassment, and disciplinary measures were imposed on the FRO and SRO.


Instead of protecting the staff member, UNODC allowed her former SRO to act as an additional supervisor in her performance evaluation report. The staff member’s mental well-being continued to deteriorate due to her regular meeting with one of the offenders due to them working for the same Organization.


The victim thus requested the Administration to provide her with the specific actions taken concerning the FRO and SRO to understand whether the disciplinary actions taken were proportionate to the committed misconduct and whether her rights have been sufficiently protected by the UNODC Administration, including the risk of repeated harm from the perpetrators.


Evidently, the Administration denied her requests.


In her submission to UNAT, the staff member appealed the breach of duty of care by the UNODC towards her, the undue delays in both the investigation and the subsequent disciplinary proceedings against her supervisors, which violated her right as a staff member to be treated with dignity and respect, and to work in an environment free from harassment and abuse to take appropriate action.


The UNODC responded by requesting the Tribunal to dismiss the appeal on the grounds of receivability since the staff member did not submit a request for management evaluation, and the appeal was considered not receivable ratione materiae. Consequently, UNAT decided that the majority of her appeal was not receivable.


The remaining issue was the staff member’s right to be provided with specific information and details about the disciplinary measures imposed on the FRO and SRO. The staff member based herself on Section 5.18(c) of ST/SGB/2008/5, which states, ” The Assistant Secretary-General for Human Resources Management will also inform the aggrieved individual of the outcome of the investigation and the action taken. “

In a bizarre and skewed approach, the UNAT interpreted the preamble of ST/SGB/2008/5, which excerpt read that “all staff members of the Secretariat are treated with dignity and respect,” as intended to protect the sexual harassers’ dignity and privacy.


The Tribunal found that “by requiring the Administration to inform the aggrieved individuals of the action taken with no further details, sec. 5.18(c) of ST/SGB/2008/5 seeks to strike a balance between the right of an aggrieved individual, the privacy of the subject staff member, and the confidentiality of the process. “

UNAT steered clear from giving an objective interpretation of Section 5.18(c) of ST/SGB/2008/5 (‘to inform the aggrieved individual of the outcome of the investigation and the action taken), most probably to avoid bad blood with the Assistant Secretary-General for Human Resources Management.


Strangely, the Judgment goes on to contradict its earlier interpretation by stating:


“It is incidentally lamentable that such unacceptable behaviour as sexual, or any sort of, harassment may still exist in high profile organisations such as UNODC, which is designed to combat drugs and crime, particularly in hierarchical relationships where respect and example should prevail over abuse and harassment. The principle of accountability must be severely reinforced where and when there is a breach of staff and management duties and obligations in this regard. “


UNAT further considered that, harm to the staff member’s mental well-being by the fact that she still meets her offender regularly and has been a witness in an application filed by this person before the UNDT cannot be seen as a direct effect of the contested administrative decision, but rather an indirect consequence of it, therefore not challengeable under the internal justice system.


How can UNAT preach the reinforcement of the principle of accountability in the same judgment that reinforces the principle of protecting the dignity and respect of sexual offenders?

A “Boys will be Boys” Judgment casts doubts about the UNDT’s interpretation of the United Nations’ zero-tolerance policy on sexual harassment and the cost of perpetuating the Boys’Club culture of impunity.

“Your breasts look like mountains….”

“The water jets in the pool could be pleasurable between a woman’s legs….”

Let me show you a picture you’ll find amusing: a picture of a penis on my phone.

These are a few examples of a male #unitednations staff member’s comments and actions toward his female colleagues during a United Nations retreat. 

If you’re reading this and you’re already shocked, don’t be…yet.

In a UNDT/2022/026 judgment issued in 2022 in the above-mentioned case, the Judge considered that:

“the facts under scrutiny cannot be considered severe, as they were made in jest and without the aim of harming or harassing anyone”

and that such 

“acts are to be evaluated in the factual circumstances, where colleagues were having a rest in a pool during a retreat; it seems they were euphoric jokes and quips, “boutades” by an elated person (like a boy in a school trip) with no intention to harm or harass or humiliate.“

As to the charge of the offending picture, the Judge found

“no evidence of any shocking content of the meme and that the meme undisputedly contained only a sexually explicit (but not pornographic or prurient) picture. Showing it was certainly inappropriate, but it was in a framework of humour amongst colleagues in moments of relaxation in the office, without sexual advances and in no targeted way.”

The Judge further considered that

“some mitigating factors must be taken into account, such as the Applicant’s unblemished work record, his admission to certain allegations, the cooperation from the outset of investigation, his apology to one of the victims.”

Finally, the Judge decided that the sanction of termination for misconduct should be replaced by the disciplinary measure of a written censure and that the offender must be paid two years’ salary as compensation for his unlawful termination!

Well, now, our regulatory framework fails to provide sufficient protection and justice for the victims/survivors of #sexualharassment, and the UN justice system is intent on taking it a step further: encouraging perpetrators to continue their rampant sexual harassment.

What could have caused the UN Judge to make such an assessment and to reach such an erroneous decision?

I argue that the cultural beliefs and values of the Judge in the case mentioned above were crucial factors impacting his final decision.

In a 2007 Duke Law Research Paper, Jennifer Zimbroff considered that 

“studies of sexual harassment perception are not intended to answer whether any specific plaintiff’s circumstances satisfy the legal criteria for sexual harassment. 

Rather, they serve to demonstrate the potential differences with which victims, alleged perpetrators, judges, and juries perceive and consider appropriate handling of unwelcome sexualized approaches. Such studies may demonstrate how the cultural affiliations of different judges and jurors will influence their perceptions of whether sexual harassment occurred and, if so, was responded to appropriately.”

As regards the UNDT judgment, the Administration made the correct and timely decision to appeal to UNAT. 

Bolstered by the UNDT Judge’s decision in his case, the perpetrator responding to the Appeal and defending his actions, argued that there were degrees of severity to sexual harassment misconduct: 

“a passing suggestive glance or remark, for example, is not the same offence as a violent sexual assault or even an inappropriate touch, and neither are the examples of misconduct at issue in the instant matter. Accepting rationally that there exists a gradation in sexual harassment offences, it is appropriate that such graded misconduct be met with a gradation of imposed sanction. The Administration’s reliance on a zero-tolerance policy to circumvent this requirement, and sustain this unjust result, should not be countenanced.”

Don’t despair yet…there is some good news. Thankfully, the Secretariat has a two-tiered system of justice. Earlier this week, the UNAT issued its final judgment No. 2023-UNAT-1311 vacating the UNDT judgment in its entirety and upholding the termination decision.

The UNAT held that 

“all individuals are entitled to be free of this kind of puerile behaviour in the work context. Making unwelcome, suggestive, sexual comments or innuendos to colleagues and showing them photographs of genitalia is unbecoming and disregarding of sensibilities, it violates the obligation of an international civil servant to uphold the highest standard of integrity and naturally would undermine professional confidence. Persons of mature character would know this.”

The UNAT sent an unequivocal  reminder of the UN’s zero-tolerance policy concerning sexual harassment and considered that

“the Organisation is entitled and obliged to pursue a severe approach to sexual harassment. The message needs to be sent out clearly that staff members who sexually harass their colleagues normally should expect to lose their employment. “

More righteous and unbiased Judgments, such as this recent one from UNAT, will contribute to steering the Organization’s moral compass in the right direction.

Please Let Me Take Care of My Baby and Keep My Job with the United Nations…

“No.”

That was the short answer of UNHCR.

For a staff member who has been serving with them for sixteen years.

Sixteen years.

Yes.

Let’s first recap the recent statements of the Secretary-General and his global advocacy efforts before delving into the shocking details of this fresh appeal.

In his own words, the Secretary-General proudly proffered:

“Let us all be part of a healthier workforce as we work for a better world for all.”

Then there were significant #unitednations statements celebrating the launch of the new workplace #mentalhealth and #wellbeing strategy in October 2018.

The HLCM’s Duty of Care Task Force’s name was changed to the Taskforce on Occupational Health and Safety Forum to accompany these groundbreaking initiatives.

And finally, the cherry on the cake was the introduction of the New Parental Leave Framework in January 2023.

Announcing the new policy, the Chairman of the ICSC noted that the New Parental Leave Framework replaces the current maternity, paternity, and adoption leave provisions with a parental leave provision of 16 weeks for all parents; and it also provides an additional period of 10 weeks to birth mothers to meet the specific pre-and post-natal needs. 

In his own words, the Chairman noted that the new policy 

“will allow women to have more equitable career opportunities with men because they are not forced to suspend or abandon their careers to provide childcare.”

and that;

“the enhancement of the current provisions further demonstrates the values of the United Nations common system.”

Returning to the appeal and the UNDT Judgment issued yesterday in the case of Rechdan.

Rechdan, a staff member who entered the service of #unhcr in 2006, went on special leave without pay for two years. At the end of the leave period and coinciding with the COVID-19 outbreak, a global pandemic in March 2020, UNHCR requested her to confirm whether she intended to return to her post or relinquish her lien to the post and submit her resignation.

Rechdan confirmed in writing her intention to return to the office but informed UNHCR that she was nearing the end of a high-risk pregnancy and asked whether she could be granted telecommuting arrangements under the covid policy.

The UNHCR Medical Unit confirmed that given the high-risk pregnancy, the staff member should be put on a 100 % telecommuting arrangement from Zug, Switzerland, for two months until the start of her maternity leave.

The Applicant’s Supervisor denied the request on the same day based on “operational requirements .” On a side note, Operational requirement is an expression the Organization invariably uses without a genuine reason to justify unlawful decisions.

The Medical Unit persisted and recommended that the staff member be at least placed on special leave with full pay for two months until the start of the maternity leave.

In an appalling reaction and decision, the UNHCR Head of HR informed Rechdan that her failure to report to duty meant that there was no option left but to accept her letter of resignation from service or else her absence from work would be considered unauthorized, thus leading to the abandonment of post.

….. this space is left intentionally blank to allow readers time to process their emotions and reactions………….

Two months later, the staff member gave birth and resigned. 

Briefly:

  1. UNHCR did not approve Rechdan exceptional placement on telecommuting arrangements for two months, pending the start of her maternity leave, against the recommendations of the Medical Unit.
  2. UNHCR did not approve exceptional approval for the placement of Rechdan on special leave with full pay for two months pending the start of her maternity leave, against the recommendations of the Medical Unit.
  3. UNHCR did not approve nor pay Rechdan her maternity leave entitlement.
  4. UNHCR coerced Rechdan into a forced resignation.

Below are excerpts from the Judgment describing UNHCR’s conduct:

“49. .. the Administration refused to accommodate the Applicant’s needs solely on the vague ground of “operational requirement .” In doing so, it failed to properly consider the Applicant’s compelling personal circumstances. 

56. …the Administration gave the Applicant more difficult options such as resignation and the extension of her SLWOP until 31 December 2021.

This undoubtedly constitutes discriminatory treatment towards a pregnant woman on account of sex (see, e.g., ILOAT Judgment No. 3861, In L. G. (No. 2) (2017), para. 7). I

In this respect, the Tribunal wishes to highlight that art. 1 of the United Nations Charter has established that the purpose of the United Nations is to, inter alia, promote and encourage “respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion. 

57. ..the Tribunal finds that the Administration failed to properly exercise its discretion in not granting the Applicant telecommuting arrangements for around two months. As such, the Organization failed to fulfill its duty of care towards the Applicant under staff regulation 1.2(c). 

66. The Tribunal fails to understand how a reasonable decision-maker could have ignored the Applicant’s compelling personal circumstances, including the fact that she could not return to her duty station given her high-risk pregnancy and the travel restrictions caused by the COVID-19 pandemic. 

70. ….the Tribunal recalls that “a staff member’s right to maternity leave during service is a fundamental human right and cannot be denied, limited, or restricted for any reason” (see Barbulescu, para. 41). “

Not surprisingly, MEU decided to uphold the decision of the Administration in the first place.

It is astounding that at one point, the Administration suspended the proceedings to discuss whether they could reach an informal dispute resolution exit, and even though two international female counsels represented the Administration, none of them saw it fit to resolve the issue in the interest of Rechdan and grant her fundamental human right: to take care of her newborn baby.

Let us recall here that Rechdan is a locally recruited staff at the GS-6 level.

What difference does it make if the Secretary-General issues a new workplace mental health and well-being strategy if the HLCM’s TaskForce’s name changes to an Occupational Health and Safety one; if a celebrated New Parental Leave Framework is issued when in practice, Rechdan was denied her basic human right, denied her maternity leave and denied the right to continue her career while providing childcare to her newborn baby?

UNHCR’s mandate is one of the noblest in the United Nations. Before protecting and assisting millions of displaced and stateless people around the world, you can start by protecting your own staff.

#unitednations #unhcr #humanrights #accountability #dutyofcare #mentalhealth

image credit of Gender and Society blog https://gendersociety.wordpress.com/2014/02/21/pregnant-women-on-the-firing-line/

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What is the point of moral damages, we ask?

Following my recent review of 12-year moral damages at the UNDT, I am sharing my second 12-year review of moral damages at the ILOAT.

Apart from the fact that words such as stress, harassment, institutional harassment, harm to Dignitas, humiliation, suffering, moral injury, severe distress, and retaliation are common denominators for the two lists, one element stands out:

Between 2009 and 2022, the ILO Administrative Tribunal issued 1809 judgments. The Tribunal ordered compensation for moral damages in 504 cases. The percentage of staff who obtained moral damages at the ILOAT was 30%. The total amount disbursed for moral damages is 8,489,800 USD.

During the same period, the UNDT issued 2368 judgments, of which 140 obtained moral damages. The UNDT percentage of moral damages awarded to staff stands at 5.91%. The total approximate amount disbursed was 2,177,000 USD.

The UNDT is quick to dismiss any request for moral damages unless you file dozens of confidential reports testifying to your delicate mental health, ironically rendering your mental health even more fragile and on a therapy-resistant mode.

What, then, is the point of moral damages, we ask?

I found the perfect answer quoting Mr. Yves Renouf, Legal Counsel for the Administration at the World Trade Organization:

“When an international official goes to court, he or she has already made one major step towards removing himself physically or mentally from the organisation for which he or she works. I’m talking for instance about the potential discomfort this official may feel when working with or simply seeing, even occasionally, colleagues whose deeds he/she described in the most unpleasant and sometimes colourful way during the appeal. Someone who has gone through the process of litigating against his/her employer actually changes, and I witnessed it on a number of occasions.

A disgruntled complainant may experience a lasting sentiment of injustice, become withdrawn, lose interest or pride in his/her work or experience difficulties in dealing effectively with colleagues.


Financial compensation has been, since Saxon and Frankish laws, a conventional way to make up for a situation that cannot be mended (such as the loss of a limb).

However, society has evolved since the 16th century and the situation of a staff member in a 21st century international organisation is a complex mix of law, personal interaction and psychology.


The situation where the complainant has been – so to speak – “eating, drinking and breathing” his/her dispute for years is the most psychologically complex. “

Indeed, no amount of money will ever undo the emotional and psychological damage and the permanent scarring inflicted on the staff members.

There can be no justice without holding senior staff personally accountable for their unlawful acts and decisions.

Period.

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Unearthing key reports buried deep in the UN ODS system…

In 2005, the General Assembly commissioned an expert Redesign Panel to look into a new justice administration system and make recommendations for its set-up. The Redesign Panel noted that reforming the internal justice system was essential for reforming the Organization. It further cautioned that a large part of the management culture in the Organization existed because it was not underpinned by accountability. 

Consequently, the Redesign Panel issued an excellent report with critical and distinct recommendations. 

Commenting on the excellent report in 2007, the former Secretary-General Ban Ki-moon said

“The United Nations, as an organisation involved in setting norms and standards and advocating for the rule of law, has a special duty to offer its staff timely, effective and fair justice. It must therefore practice what it preaches with respect to the treatment and management of its own personnel. “

That is a compelling statement indeed. 

The new two-tier justice system came to light in 2009 and became fully operational in 2010.

Eighteen years later, we can easily confirm that this system does not comply with any applicable international human rights standards.

One thing is sure: it’s a far cry from Mr. Ban Ki-Moon’s statement in 2007.

To answer this question, we look at the three-fold role of international administrative tribunals. Next, we attempt to ascertain whether this role has been fulfilled since the establishment of the new system.

Catherine M. O’Regan, former President of the IMF Administrative Tribunal, succinctly defined the three-fold role of international administrative tribunals as follows:

The first was to provide a fair system for the resolution of disputes to enhance morale within the international organisation;

The second was to ensure that international organisations are seen to respect the human rights of their staff members, so that staff members are treated fairly and without discrimination; and;

The third was to provide fair procedures for resolving disputes with staff members. International administrative tribunals should focus first on adjudicating disputes fairly.

  1. Regarding the first role, we know that staff morale is at its lowest, as we’ve seen in a previous post summarizing the moral damages awarded to staff in the past twelve years in the UNDT/UNAT.
  2. As regards the second one, we can confirm that retaliation is rampant more than ever. There is a widespread view that the formal justice system affords little protection of individual rights. Accountability simply does not exist in the books of the Secretary-General.

Staff feel UNSAFE.

Staff are continuously RETALIATED against. 

The Report of the Internal Justice Council on Administration of Justice A/72/210 2017/ offers scathing criticism of the protection from retaliation mechanisms available to staff members who decide to lodge appeals or testify before the Tribunals against the Administration.

Worse, in one of its orders Nyasulu 250 (NBI/2014), the Tribunal held:

“Witnesses appearing before this court will, most always, fear for their livelihood; they will fear intimidation and retaliation in the exercise of their functions, and to the very security of their jobs. 

In these cases, it is not the public that these witnesses will fear; rather, it is the Secretary-General or agents acting under his authority. 

It is imperative therefore that staff members can be confident that it is safe for them to testify before the Dispute Tribunal. Without such an assurance, it is most unlikely that witnesses will come forward.”

Damning indictment, indeed. 

Instead of remedying the measure, the issue was further exacerbated when the Secretary-General revised ST/SGB/2017/2 on protection against retaliation and excluded Tribunal witnesses and applicants from its protection policy against the explicit advice of the ICJ, the Dispute Tribunal and the report of the Interim Independent Assessment Panel on the system of Administration of justice at the United Nations, A/71/62/Rev.1 

The Ethics Office further confirmed to the ICJ on 30 May 2017 that providing testimony before the Dispute Tribunal did not qualify as a protected activity under the bulletin. Therefore, instances of retaliation against tribunal witnesses did not fall within the scope of the protection policy and lay outside the protection review by the Ethics Office. 

Retaliation became so rampant that many staff who dared to denounce misconduct, in many instances sexual misconduct, were suddenly faced with the Organization fabricating post facto misconduct allegations against them. 

3. The third role of the Tribunal was to ensure fair procedures for resolving disputes with staff members. There is no fairness as long as there is no equality before the law.  

Or, to put it more eloquently as UNDT Judge Vinod Boolell  said 

“A staff member who has no alternative but to represent his or her interests before an administrative tribunal against an armada of lawyers representing the interests of the international organisation does not get equal access to justice.”

Thirteen years later, OSLA remains painfully understaffed and needs to keep up with the increasing representation requests they receive from the staff. Access to external counsels proves difficult, particularly for the category of local staff, given the expenses incurred and the fact that even if they prevail, the Tribunals do not reimburse the legal costs.

How, then, to remedy all these flaws and persistent injustice?

The 2005 Redesign Panel had well-defined recommendations to the General Assembly, but the Secretary-General did not endorse the most critical ones:

  1. The UNDT should have the power to grant final and binding relief by ordering that an appointment be set aside. The Secretary-General did not endorse this recommendation. 
  2. The regulations should be amended to allow a post to be declared vacant by the Secretary-General if the appointment process was flawed. This will ensure respect for the rule of law. The Secretary-General did not endorse this recommendation. The current practice and jurisprudence are that an appointment, once made, cannot be set aside no matter how flawed the appointment process is. Besides the fact that the Appellant is barely compensated in cases of irregularities in appointment and selection, many of those irregularly appointed have maintained their positions even though the entire appointment process was a fraud and many lacked the stipulated qualifications. Unlike the UNDT/UNAT, the ILO Administrative Tribunal can order reinstatement and thus vindicate staff.
  3. The UNDT should be able to order exemplary or punitive damages in exceptional circumstances. The Secretary-General did not endorse this recommendation. The UNDT/UNAT cannot order punitive damages, but the ILOAT does. Requests for punitive damages are not actually meant for monetary compensation. Rather, they are awarded as a punishment and deterrent. The jurisprudence of the ILOAT clarifies that it is not the unlawful act itself that will result in such an award but rather the intention to harm that accompanies it. 
  4. In order to achieve an effective change in management culture and to properly address the prevailing perception that the present system shields managers from accountability, the Redesign Panel proposes that they personally answer for their acts and decisions and that the formal justice system entertain applications for the enforcement of individual financial accountability. The Secretary-General did not endorse this recommendation. 

Instead, the UNDT/UNAT have limited power for referral for accountability, but as we have seen in a previous post, not only were these never implemented, but no one can legally define the meaning of referral for accountability in the United Nations. 

With no punitive damages, financial accountability, and a diluted power of referrals, it is no wonder that senior managers can do as they please. Nothing illustrates more the brazenness of senior managers than a former ASG who, when advising her Head of Department at the USG level, said: 

“just sack him, Mr. USG, the maximum he can do is file an appeal and get two years’ salary.”

Well, yes of course, as long as this money flows from taxpayers’ and member states’ money and not from their own pockets, keep those appeals coming.

One question remains: why commission all these independent experts and waste resources if such recommendations are never implemented?

To archive them in the UN ODS system.

Settlement Agreements, Non-Disclosure Agreements, Agreed Terminations, and Separation Agreements in the United Nations.

The UN has all that it takes: Ethics Offices, an Ombudsman, numerous policies, SGBs, ST/Ais addressing unsatisfactory conduct, investigations, discrimination, harassment, and abuse of authority, a decentralized system of administration of justice, a code of conduct, Oath of Office and above all its Charter:

“We The People Of The United Nations Determined

to reaffirm faith in fundamental human rights, in the dignity and worth of the human person”

But do its senior managers have morality and ethics?

This post looks closely at Settlement Agreements, Non-Disclosure Agreements (NDAs), Agreed Terminations, and Separation Agreements in the United Nations. Sophisticated designations and expressions are all used with the same ultimate goal:

Deter staff from speaking up and cooperating with audits and investigations, employ the existing disparity in the status of power to intimidate staff and coerce them into forced resignations, and offer unjustified financial incentives (i.e., bribery) to lure staff and silence them in return for them signing agreements that prevent them from legally mentioning or pursuing any claim of wrongdoing and misconduct against the senior officials.

Instead of encouraging a safe working environment where staff can report inappropriate behavior without fear of retaliation, these agreements promote an unethical environment.

The Organization uses these agreements for four reasons, the last one being the most innovative as well as representing a direct breach of the UN’s rules and regulations:

  • Retaliate against a staff member who reported wrongdoing and coerce them into a forced separation signing the agreement, thus limiting the scope of future reporting or limiting the extent of the damage to an organization’s reputation;
  • Use artificial restructuring reasons to force staff into the coerced separation or face an often unlawful and arbitrary performance management process;
  • Quietly and diplomatically ask senior officials to leave the organization instead of facing the usual disciplinary process;
  • Strangely and, as of recently, use agreed termination for staff about to retire to reward them for their loyalty to senior managers.

In 2020, Action Against Prohibited Conduct reported that “one certain outcome of the use of NDAs in the UN was that – it entrenches the culture of silence that has protected and propagated the organizational culture of loyalty above all else. The UN and other international organizations are far from placing an embargo on such settlements.”

Due to their confidential nature, there is little access to these agreements, and thus the practice remains largely unchallenged. However, aborted or unsuccessful attempts are often described in UNDT/UNAT  and ILOAT judgments. The examples and excerpts below highlight the widespread unethical practices in various UN and other international organizations.

In ILOAT No. 4072, 127th Session, the Judgment read:

“The complainant challenges the lawfulness of the mutually agreed separation agreement which he signed as part of the implementation of the “consolidated transformation plan.” The complainant, who was employed under a permanent contract was called to an individual meeting during which he was invited to sign a Mutually Agreed and he would forgo any right of appeal under the threat of being dismissed without compensation for unsatisfactory performance if he did not sign the separation agreement. The Tribunal notes the manifest unlawfulness of the conditions in which the signature of the separation agreement was obtained.”

In Mmata UNDT/2010/053, the Judgment read:

“When UNICEF failed to secure his agreement to the termination of his contract by consent, pressure was applied to him to force a decision to accept severance terms by mentioning that the incident with his UNON identity card could be used against him as a charge of misconduct. “

In Kaddoura UNRWA/DT/2020/28, the Judgment read:

“The former CG caused her severe prejudice when he presented her with an offer of blackmail and bribery to coerce her into resigning; In the present case, it is apparent that the former CG offered the Applicant the option of resigning and receiving a positive recommendation instead of being terminated. If substantiated, such a practice is a blatant violation of the UN’s core values.”

In ILOAT Judgment No. 3750, 123rd Session, the Judgment read:

“By leading the complainant to believe that she had underperformed, the Global Fund abused its authority and put the complainant under unlawful pressure, which vitiated her consent in signing the separation agreement, which she did under the false impression that she had underperformed. As the offer of a PIP was unlawful, the separation agreement signed by the complainant is null and void on the grounds that she signed it under duress.”

In Soliman UNRWA/DT/2017/007, the Judgment read:

“it is unacceptable that a supervisor would agree to modify a mid-term review, which had already been submitted to the Department of Human Resources, and would promise to give a false review of the staff member’s performance to a future potential employer. An international civil servant could always apply and be selected for another post within the UN system. However, it would be against the interests of the UN if a staff member were to be selected to a post on the basis of an evaluation from a previous employer, which does not reflect the reality of the staff member’s performance.”

But the most egregious use of termination and settlement agreements are the ones that the Secretary-General uses to politely and discreetly ask senior officials to resign instead of imposing the same disciplinary threshold under chapter X of the rules, which applies to the rest of the staff.

The SG’s official spokesperson frequently uses the subtle expression “separated from the organization” in reference to senior officials fired. But were these senior officials actually fired? For the external audience, maybe. However, UN staff with access to HR data know they were not. They signed settlement agreements with the SG’s office.

The SG’s office has consistently refused to disclose the disciplinary measures applied to senior officials. These measures must be made equally public, similar to the Tribunal’s judgments, in the interest of transparency and accountability. Senior officials are not a separate staff category and are subject to the same regulations and rules.

Recently, a most ludicrous use of agreed termination has transpired in one of the organizations as reported in the OIOS audit of ESCWA report 2022/88 para 38, whereby the organization offered to staff who were about to retire a lucrative termination agreement package and where there were no criteria for the staff identified to have received such a package. 

“(b) agreed termination

ESCWA identified staff for separation on early retirement and offered agreed terminations to 13 staff members who were nearing retirement. However, there were no documented criteria for identifying candidates for termination and there was a risk that the process could be viewed as lacking objectivity.”

There goes the accountability framework for funds received from donors and member states.

The use of termination agreements in the UN and other international organizations contradicts the principles and core values the UN advocates for in its mandates.

“We The People Of The United Nations Determined

to reaffirm faith in fundamental human rights, in the dignity and worth of the human person”

Why isn’t anyone sounding the alarm?

The UN continues to advocate for a framework of accountability for senior managers and the need to ensure effective people management and an enabling and safe work environment. In the meantime, requests for protection against retaliation have grown exponentially, and the number of appeals to the Tribunals is rampant.

Why isn’t anyone sounding the alarm? 

Well, at least the General Assembly is trying.

In its 76th session, supported by the work and recommendations of the ACABQ, the GA has requested that the Secretary-General continues to ensure a strong culture of accountability with a proactive and transparent application of the UN’s approach to the management of misconduct, namely, prevention, enforcement, and remedial action (ref. para 7 of GA Res 76/242).

The GA further requested the SG to continue to hold managers accountable when their decisions have been established to be grossly negligent and have led to litigation and subsequent financial loss (ref. para 8 of GA Res 76/242) and to report thereon to the General Assembly at its 77th session. Let’s not even mention the word UNOPS here…

And so it goes, the Secretary-General reported on both matters on 31 October 2022 during the GA’s 77th session (ACABQ report A/77/559).

Concerning para 7, the SG indicated that the Office of Human Resources launched a new, more agile performance management approach for the 2021–2022 cycle.

Concerning para 8, the SG reported that, from 2011 to 2021, there had been no findings that a manager had been grossly negligent in a decision leading to litigation and subsequent financial loss.

Concerning both matters, the ACABQ took note of the SG’s reports and hoped that “these efforts will contribute to effective people management and an enabling and safe work environment.”

And that’s about it.

Well, not quite…

First, concerning paragraph 7, one must note that this pattern of normative work aiming at introducing, revising, and issuing countless policies, including the latest modern and agile working approaches, does not remedy the misconduct of senior managers as we have seen in the pattern of moral damages awarded by the Tribunals in the past 12 years.

As a matter of fact, in the last 20 years, we have witnessed the roll-out of numerous performance management policies, and to date, not a single one has contributed to enhancing the culture of accountability or at least to lessen the harmful and lasting impact of senior managers’ misconduct on staff careers.

Concerning paragraph 8, the SG has decided to restrict the queries of ACABQ to the strict meaning of gross negligence, which according to him, has never occurred in the organization between 2011 and 2021. Again, let us not mention UNOPS and UNEP.

In reality, the spirit of the GA resolution 76/242 was to work to  “continue to ensure a strong culture of accountability.” The SG has conveniently decided to report extensively on the new agile performance management policy while selectively choosing to restrict the accountability of senior managers to the sole concept of gross financial negligence.

Semantics…

Well, not quite…

By choosing to focus solely on gross financial misconduct (i.e., a senior manager who was directly responsible for the loss of millions of USD), the SG has effectively circumvented the spirit of the GA’s requests which aimed for a more comprehensive requirement to “ensure a strong culture of accountability with a proactive and transparent application of the UN’s approach to the management of misconduct, namely, prevention, enforcement, and remedial action.”

The GA must request that the SG reports specifically on the enforcement and the remedial actions referred to in paragraph 7. 

Enforcement of a strong accountability culture implies the implementation of the Ethics Office and the Ombudsman’s recommendations. The Ethics Office and the Ombudsman are entities that both work to end unfair practices. They suffer from the same impediment. Both offices do not have the inherent power to implement their recommendations, which remain, in essence, recommendations. The ACABQ should request the SG to report and disclose to member states the number of recommendations made by the Ethics office and the Ombudsman and the number accepted and fully implemented.

Regarding remedial action, the ACABQ should request the SG to report on the number of referrals for accountability ordered by the UNDT/UNAT that were accepted and implemented by the SG. The ACABQ must also request the number of decisions made by UNDT/UNAT in which they ordered the reinstatement of staff, but the SG still needs to implement the orders. 

Strengthening the culture of accountability can only start with ending the culture of impunity. It also must begin with transparent and objective reporting to member states.

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A 12 year Review of Duty of Care, Mental Health and Moral Damages in the United Nations Dispute and Appeals Tribunals

The UN doesn’t need another articulately well drafted strategy to tick the box and satisfy the requirements of member states and donors at large. We certainly do not need a strategy to tell us to take care of each other. What we desperately need is #accountability.

The #UnitedNations workplace mental health and well-being strategy launched in October 2018, was designed to optimize the psychological health of staff, improve organizational capacities to protect #mentalhealth and prevent mental health issues in the workplace.

The strategy followed the global 2015 United Nations staff well-being survey, according to which approximately 50 % of UN staff reported symptoms consistent with mental health conditions.

The strategy followed the global 2015 United Nations staff well-being survey, according to which approximately 50 % of UN staff reported symptoms consistent with mental health conditions.

50%. That is half of the workforce of the UN.

In reality, this number is much higher. According to the survey and the five year strategy, there were four main reasons for the poor mental health of staff: 

·      The number of years worked with the UN.
·      Exposure to traumatizing events in the previous 12 months.
·      Low job satisfaction, perceived incivility and conflict in the workplace
·      Low levels of help-seeking or receiving any mental health services.

Unsurprisingly, nowhere to be seen were the unlawful decisions taken by senior managers which were the root cause of most, if not all mental health issues or the fact that the concept of #accountability was persistently infringed upon in the Organization, which was the root cause of the stark increase of mental health findings in the survey.

The UNDT and UNAT judgments issued between 2009 and 2022 beg to differ. In the attached document, the list of all Judgments awarding moral damages due to moral harm inflicted upon the staff member’s emotional well-being paints a grim picture of the existing #toxicworkenvironment and the failure of the Organization to hold ANY senior manager accountable for their erroneous and harmful decisions. Decisions that impacted on every staff member’s “Quality of Life”.

At the end of the document is a compilation of the UNDT’s own bleak words referring to the various mental health issues inflicted upon these staff members. Words that were repeated in every judgment, session after session, year after year from 2009 to 2022. Read them slowly. Feel the pain, the sadness and the scariness of what these staff went through.

The UN doesn’t need another articulately well drafted strategy to tick the box and satisfy the requirements of member states and donors at large. We certainly do not need a strategy to tell us to take care of each other. What we desperately need is #accountability.

Start by holding these managers accountable. That’s the only element of deterrence that will drastically improve the work environment and the mental and physical well- being of the staff members. 

To conclude with an extract from a staff member’s testimony who was left with an “altered life drastically”. What the UN needs is drastic measures to uphold #accountability. Nothing less.

#UnitedNations#DutyofCare#MentalHealthMatters#Accountability

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Twelve years of Referral for Accountability in the UNAT

The overarching principles of the UN are #transparency , #accountability and good #governance. Unfortunately, none of these principles are followed when it comes to appeals. The UN does not make publicly available any information regarding the accountability measures taken. We know there were none taken. Donors, member states and other stakeholders must demand the UN make such information public for transparency and accountability reasons. 

The #UnitedNations GA established the system of administration of justice in 2010 to ensure respect for the rights and obligations of staff members and the #accountability of managers and staff members alike. 

Article 10 (8) of the Statute of the UN Appeals Tribunal gives it the right to refer appropriate cases to the Secretary-General for possible action to enforce #accountability. 

For a referral for accountability to be made, it must meet  “the high standard of personal wrongful action”. In other words, the official who made the unlawful decision had a personal intention to harm a staff member. In the 12 years of the existence of the internal justice system, the UNAT issued 2368 judgments out of which, only 9 met the threshold of “personal wrongful action” in which case UNAT upheld the referral for accountability. This means a meager 0,38% of the totality of staff members’ appeals since 2010 were referred for accountability. 

0,38%. This number speaks for itself.

Numbers aside, let’s turn to more consequential matters.

First, both the UNDT/UNAT do not have any inherent power to implement, enforce or follow-up on accountability measures taken by the Secretary-General. The referral constitutes a communication from the Tribunal to the Secretary-General, and the Secretary-General is vested with the discretionary power to determine the appropriate course of action to adopt. Normally, this should entail an investigation into the referred official with disciplinary measures ensuing. 

An appropriate course of action does not entail allowing a senior official to resign, or a golden check to be bestowed upon them, or to reassign them to a different duty station. And most certainly, it does not entail a promotion.

In the attached, in 9 cases the referral was upheld by the UNAT. In one case, it was reversed despite the overwhelming evidence and the presence of a witness. In all cases, there were no measures taken against these officials. Worse, many of them were promoted to Regional Director positions, ASGs and USGs. Others were discreetly allowed to leave without any pecuniary loss or even a note in their files barring them from pursuing their career in the humanitarian aid and development field.

The overarching principles of the UN are #transparency , #accountability and good #governance. Unfortunately, none of these principles are followed when it comes to appeals. The UN does not make publicly available any information regarding the accountability measures taken. We know there were none taken. Donors, member states and other stakeholders must demand the UN make such information public for transparency and accountability reasons. 

What do you think must be done for the UNDT/UNAT to become independent and effective bodies of internal justice in the UN?

Referral-for-Accountability-in-the-UN-5Download