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Protecting Whistleblowers since 1977

UN Whistleblowers Beware: Secretary-General Impostor on the Loose!

Shelley Walden, April 01, 2010

According to a March 19 decision by United Nations Dispute Tribunal (UNDT) Judge Michael Adams, a UN Secretary-General impostor is on the loose. As Judge Adams wrote in D’HOOGE v. SECRETARY-GENERAL OF THE UNITED NATIONS:

Counsel for the respondent conceded that authority to terminate the applicant’s contract resided solely in the Secretary-General and no other official and that, in fact, the Secretary-General had not made the decision. The letter of termination, however, categorically stated that this was the decision of the Secretary-General. This was completely untrue and, what is more, must have been either known to the author to be untrue or was made recklessly without regard to its truthfulness or otherwise.

Moreover, since the Secretary-General had not actually made the decision, the attribution to him of a reason was a fabrication, necessarily conscious. Furthermore, since a decision by the Secretary-General was essential to the validity of the termination, it was misleading as to a fundamental matter going to the propriety of the termination itself. In a case where the termination was based upon alleged misrepresentations made by the staff member this was, to say the least, ironic. There was no way that the applicant could have known that the attribution of the decision to the Secretary-General was false and, hence, that his termination was illegal… Had it not been for the percipience of counsel for the applicant, the truth would almost certainly never have been disclosed. This situation cannot be characterized as otherwise than disgraceful…

In my short time on the Tribunal, I have seen many communications referring to decisions as made by the Secretary-General which, I now understand, were notmade by him at all. This is completely unacceptable. Firstly, all communications, especially those conveying decisions must be truthful; secondly, the staff member is entitled to know who is actually responsible for the decision in question, not only as a matter of courtesy, but because he or she needs to know whether the decision was legally authorised…

I am unable to conceive of arguments that could justify the untruthful attribution to the Secretary-General (or any other official) of decisions they did not make. Such an attribution is calculated to avoid formal identification of the true decision-maker and gives the appearance of avoiding personal responsibility and accountability. (para. 59-61)

The decision also explains the importance of providing investigative reports to those accused of misconduct:

Good faith and fair dealing required that the applicant was given an opportunity to respond to any adverse findings of fact and any adverse recommendations before the decision to terminate was made. Common sense is enough to demonstrate that this could not sensibly be done without giving him the report itself or access to its key elements. If there were any real issues about confidentiality, of course they would need to be addressed, and it may be that a redacted copy could have been provided to him for his response. It seems clear that the decision-maker, whomever it was, decided not to provide the report to the applicant or to provide meaningful particulars. Aside from asserting that this was the practice of the Organization, counsel for the respondent has not attempted to bring to my attention a process of reasoning which justified following such a practice in the present case. Nor has he sought to explain why the obligations of good faith and fair dealing did not require provision of this material to the applicant. Repetition of the mantra, seen frequently in relation to issues of this kind, that a staff member has no right to the report and it is the practice of the Organization not to provide it, is not a substitute for rational argument. Since decision-making, if it is to be legitimate, must be at least rational, the inference that the decision-maker here simply applied the mantra which I have mentioned seems to be justified and, to my mind, brings the process that was undertaken into serious question. (para. 81)

In suggesting the provision of a redacted report, Judge Adams presents an option that would help to protect the identity of whistleblowers and witnesses, while honoring the due process rights of those accused of misconduct (including whistleblowers who may be subjected to disciplinary procedures in retaliation for their whistleblowing activities).