United Nations Appeals Tribunal (UNAT) Judgements

UNAT Judgement Dorji 2022-UNAT-1278 of 28/10/22

This UNAT judgement in relation to a challenged resignation upholds UNDT Judgement Dorji 2021-UNDT-120, which found the Application non-receivable due to passing of the 60 day time limit to file a Management Evaluation in accordance with UN Staff Rule 11.2 and Art. 8 (3) UNDT Statute.

The Appellant filed a request for Management Evaluation more than two years after a claimed “coerced“ resignation. The Appellant claimed that as a result of having faced daily harassment, abuses, retaliation, threats, humiliation, bullying and discrimination in the workplace he had developed high blood pressure, diabetes, high cholestoral and had undergone a colon cancer operation. Medications were maximum doses prescribed by his doctor. He submits he had been forced to the point of breakdown and being suicidal. He claimed frequent panic attacks and sleepless nights because of these issues. (para. 12 of the Judgement).

The Appellant claims for addressing such fundamental issue, violating human rights and constituting harassment and discrimination of a member of a minority, there were no time limit (para. 13).

Seeing such very severe claimed health consequences for what may appear as a case of constructive dismissal, what stands out is the question why the Application before the UNDT did not seek reinstatement into the 60 day time limit, based on being incapacitated during and after that time period. While Art. 8 (3) of the UNDT Statute prescribes that the Tribunal “shall not suspend or waive the deadlines for Management Evaluation“, argument could be made that reinstatement (restitution in integrum) were separate from such, relating more to a force majeure type circumstance outside of the control of the Appellant. Furthermore, there is the postulate of impossibilium nulla est obligatio. The Court would then have had to address matters in the light of these fundamental legal principles.

Link: https://www.un.org/en/internaljustice/unat/judgments_2022.shtml

UNAT Judgement Larriera 2022-UNAT-1271 of 28/10/22

Noteworthy about this Judgement are the efforts made by the Court to determine the meaning of a particular provision (Art. 3 (1) (c)) of the UNDT Statute. In its analysis (paras. 36 – 39 of the Judgement) the Court compared French and English (original and other) language versions of the UNDT Statute, seen in light of the purpose of a relevant Appendix D of the Staff Regulations and Rules at the time of publication. The thoroughness by the Tribunal in conducting such text exegesis in determining the law is laudable.

Link: https://www.un.org/en/internaljustice/unat/judgments_2022.shtml

UNAT Judgement Dahood 2022-UNAT-1270 of 28/10/22

This Judgement contains the reminder that compensation for harm (moral, psychological, but also physical (note by the Commentator)) needs to be supported by evidence (para. 52 of the Judgement), and, as the Respondent points out, such evidence needs to be other than the staff member’s own testimony (para. 35). This follows a change in the UNRWA Dispute Tribunal Statutes in 2018, following a similar change in the UNDT Statutes. Indeed, according to UNAT jurisprudence, award of damages needs to be corroborated by independent evidence (cf. Ross 2019-UNAT-926, para. 57).

The regulation in the Statutes in combination with the UNAT jurisprudence puts litigants at a disadvantage from the outset. While cost saving efforts may be comprehensible, from a principled point of view it does not appear convincing to diverge from basic rules of evidence, established in long-standing legal tradition. Assessment of evidence should instead be left to judges (and parties in their argumentation) as it lays before them in the concrete case.

Link: https://www.un.org/en/internaljustice/unat/judgments_2022.shtml

UNAT Judgement Nigam 2022-UNAT-1269 of 01/07/22

There is a long history of complaints, investigations, applications and processes to this case since the Appellant left his former employer in 2018. In its judgement UNAT has now partially remanded the case back to the UNDT for re-adjudication (paras. 42, 44 of the Judgement). The oftentimes long and protracted administrative and judicial processes in the UN System stand out particularly in this case.

A side-remark in para. 43 of the Judgement, recommending the Appellant to take legal advice / legal representation, reiterating similar previous advice by the UNDT, warrants observation. While on the surface the recommendation may appear reasonable, on deeper reflection and taking into account the perspective of the litigant, this may appear less so. For the Organisation, time and resources in the judicial process are not an issue. On the contrary, the Organisation may consider that passage of time works in its favour, frustrating the litigant in several respect, for whom the process will regularly already be a substantial strain. For the involved judges and other personnel, the circumstance of being resourced during the legal process,, both professionally and personally, is not an issue.

However, litigating staff members may find themselves without salary, or if still in service, perceived or felt as being perceived as “troublemakers“. They are therefore largely on their own. Investing in that situation in legal representation may pose a substantial monetary risk, without the return on investment being evident. Legal bills from qualified professionals can easily amount to 100s of 1000s of US$, without any guarantee of persevering. Statistically, the probability of winning after two court instances in the UN System (Dispute Tribunal, UNAT) is apparently only 1:8 (P. Gallo at http://peteragallo.com/?page_id=168 ). Potentially sinking a family house worth of investment into legal fees earned after tax – aside from the very substantial time investment in sharing, explaining and discussing the case at hand with outside legal representative(s) -, needs to therefore be well considered. With no external source of funds, such type of personal decision would be well reflected by any individual under those circumstances.

Being able to represent oneself in the judicial process may in fact be seen as an important element in realising the equality of arms principle in court proceedings. With little or no cost to the litigating staff member, he/she is able to pursue a case. This may even be seen as a reflection of the broader principles of right to justice, rule of law and good governance. Calling for outside legal representation without any further consideration may hence be unjustified.

A practical solution to the issue could be for Organisations to foresee legal protection insurance for staff members – beyond the internal Office for Legal Affairs representation – for professional counsel. Staff members would be free to participate in such legal insurance at monthly or yearly rate. The insurance arrangement would benefit from client pooling and linked economy of scale. Staff members could then access professional counsel for a case through all instances. Even if legal fees were indeed to amount overall to e.g. half a million USD, the aggregate pooling over time would allow for such. And if the arrangement contributes positively to the administration of justice system in the UN, there would be a larger qualtitative gain too.

UNAT Judgement Pakkala 2022-UNAT-1268 of 01/07/22

This UNAT Judgement is interesting in that while its focus is on challenged administrative measures, these follow an investigation upon which disciplinary measures for harassment and abuse of authority were not taken. Instead, the Organisation resorted to a reprimand on file for five years, removal from supervisory functions (apparently oversight of some 3,000 staff), and mandatory training.

Some questions remain open in the case. For example:
– What percentage of the total number of supervised staff / reportees did the 11 complaining staff members in fact constitute, i.e. whether measures taken could be justifiable from the point of view of overall management of staff;
– The vagueness of findings by the administration, remaining inconsequential in the judgement, namely (para. 12 of the Judgement) that (underlining added) “Your management style was perceived as autocratic; You were felt to be dismissive of … and appeared unwilling to take on board different views …; Your conduct could be demeaning, to the point of reducing colleagues to tears“. More certainty and actual occurrences could have been expected for adopting consequential administrative measures.
– Why a Performance Improvement Plan (PIP), including limited or reduced supervisory functions, as a management tool could not have been sufficient, with such PIP sending a clear message to the Appellant and concerned staff; whether proportionality was indeed given in foreseeing a reprimand remaining on file for five years, also without any possibility of e.g. a mid-term review depending on progress made in the remedial measure (training). Five years is a long period in an e.g. 20 or 30 year career with the UN, taking into consideration also the period for “re-starting“ a career after encumbrance due to a reprimand in the personnel file. The reprimand in its current form may therefore indeed, as the Appellant has claimed, have a disciplinary element to it. Moreover, the cited evidentiary standard for the reprimand – preponderance of evidence, as opposed to clear and convincing evidence – should have been taken into account in setting the time period for being on file.
– Why a reversal of the original investigation not requested. The fact that an investigation was conducted, even if no disciplinary measure had ultimately been adopted, may be more damaging under career prospects than the administrative measures. The Appellant mentions these career consequences (para. 24). The question might be posed whether a full investigation had in fact been warranted.
– The UNDT judgement (para. 49 Pakkala 2021-UNDT-076) does mention discrimination as a point raised by the Appellant. However, there are no further findings on this aspect in the judgements by the UNDT and UNAT. Yet, the thought does arise whether discrimination of women in leadership positions, particularly in younger years or in mid career stages, did in fact play an underlying role in the Organization’s response in this case. In professional sports, the case has been made that women atheletes are unduly penalised for behaviour which for male athletes under comparable circumstances may be accepted as being assertive, commanding respect, and therefore remaining without consequence or even admired. Standards applied to women in such positions may exhibit less tolerance due to (unconscious) bias, and consequences may be harsher.

There is also an overall subliminal aspect to the judgement, and that is whether the administrative measures would indeed have been taken in such way if the original investigation, which did not lead to disciplinary measures, had never been conducted or considered in the first place. Would the administrative measures indeed have stood on their own if not following and impacted by a failed investigation ? Did the unsuccess and abandonment of the investigation thus play a role, with the administrative measures gleaning from the failed investigation ?

The administrative measures appear as a fallback mechanism, almost applicable by default and/or quasi automatically accepting and/or assuming an upper end violation of the fallback option. While there may be understandable innate frustration and the aspect of “losing face“ from a failed investigation on the side of the Organisation, opening up even to potential further consequences (complaints) in that regard, yet in a professional environment these aspects should have no space. There needs to be awareness of the innate associated risks of such circumstances and unfolding of events and linked narratives, and therefore concerted efforts made to ensure a virtual firewall is in place between the investigation and administrative measures, which need to be justifiable entirely on their own.

Link: https://www.un.org/en/internaljustice/unat/judgments_2022.shtml