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.
