Category: Administration of Justice

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?

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.

Who is responsible for the obstruction of justice in the United Nations?

Note: This post is to be read in conjunction with the previous one.

The UNDT has recently proposed amendments to its rule of procedures Annex I of the Report of the Secretary-General on Administration of Justice A/77/156. In its introductory paragraph, page 30, the UNDT recalled that the “current rules of procedure were adopted before the Tribunal became fully operational and were based more on projection than on feedback from practice”. It makes perfect sense since it’s been twelve years since the new justice system was adopted.

One entity did not like it: the legal offices representing the Secretary-General.

In brief, the UNDT’s proposed amendments to its Rules of Procedure restore a more balanced approach to justice, benefitting staff, and helping curtail the SG’s maneuvering in court proceedings, which are many. One consistent tactic of the legal offices is to, for example, refrain from calling witnesses during the oral hearing to avoid their cross-examination by the Judges and the opposing parties and thus to limit the evidence to written testimonies or to OIOS reports.

Read and decide which entity aims to enhance a culture of accountability and justice and which one continuously aims to obstruct it.

Article 16 on Oral Hearing: the UNDT is moving towards making the Oral Hearing compulsory whenever there is an appeal contesting the imposition of a disciplinary measure. All statements, allegations, and witnesses must stand the test of scrutiny before the Tribunal.

The Secretary-General objects and recommends that the corresponding paragraph be entirely deleted. (ref. p. 55 – A/77/156)

Article 17 on Evidence: the UNDT reinforces the principle of evaluating evidence to ensure it meets the requisite standard of proof by applying logic and common sense. The UNDT will further draw adverse inferences from a refusal of a party to disclose a document in their possession and may thus consider the facts alleged by the opposing party as proven. As we all know, most of these documents are in the control of management, not staff. 

The Secretary-General objects and considers that the UNDT is attempting to rewrite the staff regulations and rules. According to the SG, such changes must be considered under the UNDT Statute and not its rules of procedure and are thus subject to GA approval. (Ref. p.55 p.56 -A/77/156).

Article 26 on Protection of personal data in publication of decisions: The UNDT seeks to use the initials of staff members instead of their names appearing in all judgments similar to the ILOAT practice and in justified circumstances to anonymize it. OSLA has supported this proposal and noted that the publication of the names causes long-term irreparable harm and prejudice to an applicant, even when the applicant is successful. (Ref. p.57 p. 58 – A/77/156).

The Secretary-General objects to this proposal citing issues of transparency. A review of all names published in UNDT and UNAT will show that not a single senior manager’s name was published in UNDT/UNAT judgments, but it was always the names of the staff members accused of misconduct. 

With this pattern, the GA resolution A/RES/65/253* that had envisaged more than a decade ago : 

“….to establish a new, independent, transparent, professionalized, adequately resourced and decentralized system of administration of justice consistent with the relevant rules of international law and the principles of the rule of law and due process to ensure respect for the rights and obligations of staff members and the accountability of managers and staff members alike”

will soon become obsolete, and justice will be denied to all staff members.

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Your everyday justice story, but something else is brewing…behind the scenes

Staff members prefer to avoid the UN system of justice. With regards to UNDT, they describe it as a cumbersome process, clearly representing a disparity in representation powers, leaning more towards management, not doing enough of what it should be, and quickly disposing of cases, particularly termination cases. As to UNAT, one former UN senior official described it as a “damage control” body aiming solely to reduce the indemnities granted by UNDT and reverse accountability referrals.

According to statistics, less than 5% percent of staff prevail in UNAT. Enough to deter any staff member from lodging a decision for review in the first place.

Despite this grim depiction, the Secretary-General is now intent on bringing the entire system of administration of justice to its knees. So that the 5% percentage we referred to above could soon shrink to, well, Nil.

How can this be? We start by examining a typical case of alleged misconduct to understand the following:

A staff member is accused of alleged misconduct. They go through the disciplinary process, and the sanction of termination for misconduct is applied to them. 

On to the appeals process to establish whether that sanction was lawful and whether the staff member is guilty of misconduct.

When termination is a possible outcome in disciplinary cases, the standard of proof in the UNDT is that of “clear and convincing evidence,” which means that there is significant evidence supporting the finding of misconduct, and there is very little information suggesting the opposite.

This standard of proof is much lower than the one applied by ILOAT, which is “beyond any reasonable doubt” and which compels the investigative and the reviewing bodies to undertake diligent and meticulous work to establish evidence. The ILOAT standard of proof is the standard applicable in criminal liability and hence, offers a shield for staff, guarantees a higher threshold of justice and fairness, and makes it a little bit more difficult for the organization to get rid of staff under false or fabricated allegations.

The investigative body in most cases is OIOS which has been consistently criticized for being the Secretary-General’s right arm in most investigations. Independence and impartiality are frequently at stake since the USG of OIOS reports directly to the Secretary-General. Nowhere is this more apparent than when the subject of an investigation is a senior official at USG and ASG levels.

Many OIOS investigation reports fall below OIOS’s manual of “standard of investigations” published on its website. OIOS investigators frequently focus solely on inculpatory evidence and disregard exculpatory one. Investigators display a selective approach when it comes to witnesses. OIOS also has its fair share of internal problems and office politics, and its investigation reports are often based on one-sided testimonies. 

When a staff dismissed for alleged misconduct goes through the taxing appeals process, the Judge will normally convene an oral hearing per Article 16(2) of the UNDT Rules of Procedure. 

The accused then has an opportunity to cross-examine his accusers before the Tribunal.

UNAT has stressed the importance of confrontation and cross-examination of witnesses by referring to Wigmore, who defined cross-examination as “the greatest legal engine ever invented for the discovery of truth.”

Finally, there is the onus of proof which in case of termination is mainly on the Secretary-General, meaning that it is incumbent on the SG to provide clear and convincing evidence before the Tribunal leading to the conviction of the staff member of misconduct. 

So we have a standard of proof that is lower than other jurisdictions, an investigation body OIOS that is not independent and whose reports raise doubts on matters of probity and competence, an oral hearing that “normally” should be held, and an onus of proof incumbent on the Secretary-General in cases of termination for misconduct.

And so, in 2022, both the UNDT and UNAT overturned termination decisions for staff accused of misconduct, in one case acquitting the staff and in another remanding the case to UNDT for a de novo review.

In the first case, the Secretary-General/Respondent failed to secure the presence of witnesses/complainants to allow their cross-examination, thus defeating the purpose of the oral hearing and relying solely on the OIOS investigation report and unsworn testimonies of the complainants.

According to Judgment No. 2022-UNAT-1187, the UNAT found that:

“The evidence, according to the UNDT, thus pointed to the possibility that the complainants may have had ulterior motives for making the complaints…the failure to call witnesses by the Secretary-General and the denial to the applicant of an opportunity to cross-examine his or her accusers, especially in serious cases, may very well result in a finding that the Secretary-General has failed to meet his burden of proof leading to a rescission of the contested decision”. 

The UNAT went on to criticize the OIOS:

“The evidence presented by the Secretary-General in this case was of an exceedingly limited nature and value. He relied exclusively on the contents of the written report of the OIOS investigation, which was entirely hearsay and, in some instances, double hearsay. The Secretary-General called no witnesses to prove his case. The Secretary-General’s approach and his failure to call these witnesses was akin to a prosecutor in a criminal trial simply handing in a written report of the police recommending a prosecution on a criminal charge, without calling the investigating officer or any of the relevant witnesses to the crime. It is inconceivable that any court could return a conviction on so incomplete an evidentiary basis. 

The Secretary-General should not proceed to discipline in serious cases before being satisfied that, in addition to a finding of probable cause by OIOS, there is evidence available that will attain the standard of clear and convincing proof before the UNDT. To do otherwise is to risk a travesty of justice inconsistent with the role of the United Nations as the custodian of human rights. “

Both judgments from the UNDT/UNAT are bold and reflect an accurate depiction of the failure of the SG’s disciplinary process from A to Z. They also send a clear signal that the Tribunal’s role is not to sit idle when confronted with an absence of a factual determination of the alleged misconduct with the required standard of proof. The Tribunal has finally asserted some of its judicial powers, which were given to it in the first place following the report of the Redesign Panel in 2005 on the overhaul of the system of administration of justice at the request of the GA. 

Let’s recall that the GA resolution 63/253 establishing the new system of justice called for the establishment of a new, independent, transparent, professionalized, adequately resourced, and decentralized system of administration of justice consistent with the relevant rules of international law and the principles of the rule of law and due process.

And yet it seems that the SG and his legal officers are now intent on reversing this whole reform by unlawfully paving the way for what can be described as restraining orders severely limiting the role of the Tribunal, particularly in what relates to its pivotal role in assessing evidence and deciding whether such evidence is sufficient for the imposition of a disciplinary measure. 

Ironically even the now-defunct JAB/JDC, which were not formal judicial bodies, had this authority, but the SG now believes that the UNDT and UNAT should be deprived from this power.

And so unknown to the staff, the Secretary-General has discreetly proposed to the General Assembly to amend the UNDT Statute of the UN Dispute Tribunal in his report A/77/156 on the administration of justice.

The Secretary-General proposes (in para 128 of the SG’s report to the GA A/77/156) to add a paragraph 4 to article 9 of the statute of the Dispute Tribunal to read as follows: 

“In hearing an application to appeal an administrative decision imposing a disciplinary measure, the Dispute Tribunal shall pass judgment on the application, determining whether the decision was a reasonable exercise of the Secretary-General’s authority based on the evidence before the Secretary-General at the time the administrative decision was taken. The Applicant shall bear the burden of showing that the decision was not a reasonable exercise of the Secretary-General’s authority.” 

The proposal, if adopted, shifts the burden of proof to the Applicant, which is a skewed approach to reversing roles in the process as the UNAT has provided that “there is no overall onus on the staff member to prove his innocence.”

It further deprives the Tribunals of its core function: assessing whether the evidence that the SG and his legal officers present meets the required standard of proof. Therefore, the Tribunal’s judgments will become a de facto rubber stamp for the SG’s decisions.

The SG and his representatives were further concerned in para 127 of the SG’s report A/77/156 about the operational independence of OIOS due to the Tribunal’s review of OIOS reports. As if the Tribunal had no right to review and assess the validity and credibility of OIOS reports.

It so happens that the cases above related to sexual exploitation and abuse, so the SG’s representatives jumped on the opportunity to exploit it under the zero-tolerance policy and brand it as a dangerous practice of the Tribunal. As we all know, it is a very appealing and vital issue to donors and member states.

Well, first, if the SG and his representatives need any reminder of the failure of the UN system till now to protect staff members from sexual harassment, indeed, we can provide a list of all the survivors that the UN itself retaliated against for daring to report managers in the system.

Second, the UNDT and the UNAT judgments criticized the standard of evidence provided by the SG, the voiding of the oral hearing element, and the defective OIOS investigations. All these deficiencies are not only found in cases of sexual exploitation and abuse but are routinely depicted in other cases entirely unrelated to sexual exploitation, such as Aahooja UNDT/2019/033 cited below:

“It is unfortunate that the decision-maker did not appear to consider the nature and quality of what was said to be evidence of the misconduct of the Applicant. The contested decision fails to consider the actual evidence and to provide any adequate analysis thereof. It is important for a decision maker to differentiate between assertions made by an investigator and the actual facts as proven. The consideration of hearsay material is not a consideration of actual evidence. The production of hearsay evidence by an investigator is entirely inappropriate unless properly corroborated. It denies a staff member under investigation his or her rights to be able to test the actual evidence. All a person proffering hearsay evidence can respond is that it was what was told to them. The failure to obtain even basic proofs of evidence, rather preferring to place reliance on unsupported assertions, does nothing to provide proof of a matter. 

…. there were serious shortcomings in the manner in which the investigator conducted the investigation and the manner in which the findings of fact were presented in the investigation report. 

…If the investigation had been conducted in a competent and proper manner, the investigation report would not have presented the facts as it did.”

One must wonder, therefore, why the SG and his representatives didn’t report their concerns at the time to the General Assembly and accused the Tribunal, as they are doing now, of “attempting to redefine the authority of the SG  to impose disciplinary measures on staff who have engaged in misconduct.”

For one, it was not a sexual misconduct case, so less appealing to member states and donors.

Second, proposing changes to the UNDT statute has to go through GA/ACABQ and the Six Committee, so it takes time.

Third: there was a better shortcut: dismiss the Judge who issued the judgment and was later linked to the Reilley case.  Judges, as we all know, are appointed at the D-2 level and paid by the UN. They, too, have financial commitments and careers.

The dismissal did not deter the UNDT and UNAT from issuing judgments that exposed and ridiculed the so-called disciplinary process leading to the imposition of disciplinary measures. 

The removal of Judge Rowan Downing did not suffice to dissuade the Tribunal from exercising its mandate. 

So now the Secretary-General’s next move is to render the entire Dispute Tribunal moot.

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”