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Protecting Whistleblowers since 1977

UNHCR Whistleblower Wins Case before the UN Dispute Tribunal

Shelley Walden, May 29, 2013

UNHCR_logoAfter nine years of legal battles, a United Nations High Commissioner for Refugees (UNHCR) whistleblower has won her case. On May 28, 2013, the United Nations Dispute Tribunal (UNDT) – the court of first instance of the two-tier internal justice system through which UN employees contest violations of their rights – issued two judgments that found in favor of Caroline Hunt-Matthes, a former senior investigation officer with UNHCR’s Inspector General’s Office (IGO).

According to judgment 2013/85, Hunt-Matthes made numerous disclosures regarding UNHCR practices. These included, but were not limited to, disclosures about interference/obstruction into an investigation of an alleged rape of a UN staff member in Sri Lanka by another staff member; the decision of the IGO to hire a staff member who was himself under investigation by the IGO; the “failure to register a sexual harassment complaint” against the High Commissioner; the “unlawful detention of refugees by senior UNHCR staff, leading to the death of a refugee while in detention;" and a "report of sexual exploitation of a refugee by a UNHCR staff member.” (para. 34) In April 2006, Hunt-Matthes filed a request for protection with the UN Ethics Office, which is charged with reviewing retaliation complaints from whistleblowers. In December 2006, the Ethics Office issued a decision in which it found that she engaged in protected activity but concluded that there was noprima facie case of retaliation because there was allegedly no connection between the retaliation and her whistleblowing.

Like the recent Wasserstrom judgment, the Hunt-Matthes decision is highly critical of the Ethics Office. Judge Coral Shaw noted that the Office “overlooked or ignored” information provided by Hunt-Matthes and failed “to take into account the evidence before it” regarding the list of parties to whom she’d made a protected disclosure. (para. 75) The Judge noted that the case officer had a “negative attitude” (para. 83) toward the Applicant’s case and wrote information in her case file that was factually incorrect. Further, the judge found that, by accepting the Administration’s argument that a negative Performance Appraisal Report (PAR) it had itself written, and which had never been independently reviewed, was adequate justification for Hunt-Matthes non-renewal, the Ethics Office “took into account unverified facts and opinions about the Applicant and her performance and failed to properly consider the Applicant’s allegations of  maladministration that gave rise to her complaints in the first place.” (para. 86) The judge added that “by failing to properly assess whether there was a link between the reporting of misconduct and the alleged retaliation the Ethics Office denied or radically limited the protections that the Secretary-General clearly intended to afford to United Nations staff members.” (para. 88)

Finally, the judge concluded that the Ethics Office “did not assess the Applicant’s claim in conformity with the correct obligations, principles and standards because: a. It applied the wrong criteria in considering whether the Applicant had engaged in protected activities. b. It overlooked her reports of misconduct to [several parties] … [and] c. It failed to identify that the retaliatory acts alleged by the Applicant were the findings of unsatisfactory performance and subsequent non-renewal…” (para. 89) The judge awarded Hunt-Matthes USD 8,000.

In a separate decision (2013/84) also released on May 28, Judge Shaw upheld Hunt-Matthes’ claim that the negative Performance Appraisal Report and the non-renewal of her Fixed-Term Appointment were “acts of retaliation against her for questioning the investigation methods of the IGO and requesting investigations into the conduct of some senior officials.” (para. 110)  The Judge found that the “Applicant’s performance was not correctly evaluated in accordance with the regulations and policies in force at the time” (para. 96) and that the Administration chose to mischaracterize her “allegations as poor performance rather than to properly investigate them or refer one of them to OIOS [Office of Internal Oversight Services] as the Applicant requested.” (para. 108) The Tribunal also noted that prior to blowing the whistle, Hunt-Matthes had throughout her career consistently received positive performance evaluations that described her “as an excellent staff member, full of initiative” who was “task oriented” and “delivered excellent work.” (para. 16)

In this case, the Tribunal awarded Hunt-Matthes one year’s full salary with full benefits, as well as $50,000 in moral damages. In addition, the judge found that the Respondent’s “failure to make appropriate concessions of procedural breaches at an early stage” was a manifest abuse of proceedings and therefore awarded Hunt-Matthes an additional 6,074.50 British Pounds (approximately $9,235 U.S. dollars) in legal fees. (para. 144)

The judgment documents numerous shortcomings in the investigative procedures at UNHCR. A former UNHCR senior director in IGO testified about “instances of overt interference from senior officials in the conduct and outcome of investigations designed, in his view, to manipulate the whole process to get certain outcomes. He gave a specific example of an investigation ordered into a division of UNHCR which he was aware was designed to ‘clip the wings’ of the Head of that division. In his opinion, the concern was not with the facts but to ‘knock someone down.’" (para. 33) Given this testimony, it is perhaps not surprising that a 2011 survey of 7,000 UNHCR staff members found that 70 percent of respondents reported fear of speaking up — a dramatic increase from previous years. Given that UNHCR is a human rights agency established to assist refugees, many of whom seek asylum in order to defend their rights to freedom of expression, these findings are particularly troubling.

In addition, the judge noted that the referral made to OIOS by the Rebuttal Panel in this case “was not dealt with or concluded and… never reached the Applicant’s file.” The judge concluded that “the failure of OIOS to investigate and call these individuals to account as requested…has contributed to the costs to the Organization as ordered by this Tribunal.” (para. 128) In 2009, in a letter to the U.S. Ambassador to the UN, GAP raised concerns about the failure of the OIOS to investigate this case specifically. Since that time, apparently no actions have been taken by OIOS to investigate.

The Tribunal also referred a matter to Secretary-General Ban Ki-moon for possible action to enforce accountability (in accordance with the powers given to it by article 10.8 of its Statute). Specifically the judge found that attempts were made to “interfere in the Applicant’s rebuttal process by: a. The Executive office of UNHCR; b. The UNHCR Department of Human Resources Management; and c. The UNHCR Legal Affairs Unit.” (para. 127) In September 2012, GAP released a report that analyzed the impact of the UN internal justice system on accountability practices in UN peacekeeping missions. One of the report’s finding was that UNDT judges rarely referred cases to the Secretary-General for possible action to enforce accountability. The study included a recommendation that judges refer more cases of clear managerial misconduct to the Secretary-General. GAP’s report also recommended that the Secretary-General take action in the cases referred to him by UNDT and the UN Appeals Tribunal. It is important that the Secretary-General act on the accountability referrals made in this case.

Hunt-Matthes’ case also exposes various shortcomings in the UN’s whistleblower protection system. GAP reviewed the Ethics Office’s annual activities reports and found that approximately 343 “protection against retaliation” inquiries were received from 2006 through July 2012. The Office completed a preliminary review in 87 of these cases and found only nine prima facie cases of retaliation. After further review, the Ethics Office found in favor of only one whistleblower, ultimately rejecting 99.7 percent of retaliation claims. These statistics, combined with the findings in this case and the recent Wasserstrom decision, show that the Ethics Office at the United Nations is broken.

The decisions also demonstrate the need for reforms to the UN whistleblower protection policy. The judge observed that a significant difference “between the pre and post 1 January 2006 whistleblowing reporting procedures is the manner in which misconduct is to be reported” and noted that under the new policy, the parties to which a report can be made “are different and more limited.” (2013/85, para. 54-55) This complicated Hunt-Matthes’ case, as she made her reports prior to January 2006 according to the broader reporting procedures in place at the time. GAP believes that the 2006 policy should be revised to expand the list of offices to which a disclosure could be made.

Secretary-General Ban Ki-moon recently announced that there will be a review of whistleblower protections at the United Nations conducted by Justice Louise Otis of Canada. Hopefully this review will examine in more depth the record of the Ethics Office and make recommendations regarding reforms. Unfortunately cases like this show that, to date, the Ethics Office has primarily functioned as a chilling mechanism that sanctions retaliation and misconduct, rather than stopping it.

 

Shelley Walden is International Officer for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.