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Protecting Whistleblowers since 1977

UN Secretary-General Appeals an Order that Required Him to Provide an Investigative Report to a Whistleblower

, April 09, 2010

The UN Secretary-General is appealing an order by United Nations Dispute Tribunal (UNDT) Judge Michael Adams that requires him to provide a whistleblower with a copy of the investigative report about his retaliation claim.

Here’s the kicker: it’s not clear that management even has the right to appeal such orders. Indeed, the UNDT statutes strongly suggest that orders cannot be appealed as outlined in a previous decision by Judge Adams. But that isn’t stopping UN management from doing everything in its power to keep an investigative report secret, deny a whistleblower due process and delay UNDT from issuing a final ruling. In the process, the Secretary-General is undermining the authority of the UNDT and the new UN justice system.

Fortunately, Judge Adams is not backing down, as demonstrated by his most recent order. The impetus behind this order was the Secretary-General’s request for a stay of the previous orders in the Wasserstrom case and an adjournment of the proceedings, pending the determination of the UN Appeals Tribunal’s decision on his appeal. In response, the applicant’s counsel claimed that the Secretary-General “is guilty of contempt” and “should not be able to seek orders in effect relieving it of its obligation” to produce documents.

According to Judge Adams:

The Dispute Tribunal has undoubted power to control its own proceedings, including adjournment and staying its own orders. In this case, the only consideration favouring an adjournment pending appeal appears to me to be that the question whether the Appeals Tribunal has jurisdiction in respect of interlocutory appeals (however described) as distinct from final appeals has not yet been determined by the Appeals Tribunal and it is desirable that this question be resolved as soon a possible, not least because it affects the useful scope of preliminary decision-making in light of the risk of extensive delays able to be triggered, in effect, at the say-so of a disgruntled litigant…

Since the respondent seeks the stay, it will need to enquire of the registry of the Appeals Tribunal about an anticipated time frame and make some application to the Tribunal for expedited hearing. I do not make any suggestion as to what the Appeals Tribunal might decide about this but, if no expedition is available, the delay involved in determining any appeal, assuming the appeal to be available, might lead to the conclusion that, rather than the matter going into hibernation, as it were, for many months, the Dispute Tribunal should simply get on with it and complete the case in the meantime.

Judge Adams then ruled that “if a redacted copy of the investigation report is not provided by the respondent to the applicant by close of business 6 April 2010, I will redact a copy as best as I am able and provide it.”

So it looks like the current score is Whistleblowers: 1, UN Management: 0; game on.

On a side note, the applicant claimed that management should be responsible for the attorney’s fees incurred as a result of these delays. This claim overlaps with a recent resolution by the General Assembly in which the Assembly requested that the Secretary-General provide information on “measures in place to provide for accountability of officials for causing financial loss to the Organization under the new system for administration of justice, including recovery action, as well as actions taken to enforce such accountability.” (para 8f).

But what happens when the Secretary-General or his representatives are the parties responsible for this financial loss? Stay tuned, as Judge Adams has “reserve[d] consideration on the question of costs.”