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Protecting Whistleblowers since 1977

UN Tribunal Again Denies Justice to Whistleblowers

June 30, 2016
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Appeals Tribunal Declares Whistleblowers’ Request for Relief “Unreceivable”

WASHINGTON – Today, the United Nations Appeals Tribunal (UNAT) excluded two more whistleblowers who have suffered retaliation from access to the internal justice system. Those who allege that they experience reprisal for exposing crimes or misconduct must now rely only on the determinations made by the UN Ethics Office that very rarely supports them. 

Moreover, the UNAT declared, in this case the UN Ethics Office failed to comply with the section of its mandate that might have opened the way to the justice system. As UN jurisprudence now stands, the Ethics Office is responsible for the steps that might make the justice system accessible to a whistleblower seeking relief from retaliation, but if the Office fails to take such steps, as it did in the Postica/Nguyen Kropp case, there is no consequence.

The Government Accountability Project (GAP), which has worked with UN whistleblowers for over 10 years, has documented the fact that less than three percent of those who seek support or help from the UN Ethics Office receive validation and relief. The remaining 97 percent-plus of staff members are without a remedy, unless they meet extremely onerous conditions.

In refusing jurisdiction in a judgment read today for the cases of Florin Postica and Ai Loan Nguyen-Kropp, the UNAT underscored its repudiation of whistleblower protection, which it first set out in a 2014 ruling.

Postica and Nguyen-Kropp, have sought relief from retaliation for over six years. In 2010, they reported that their supervisor, Michael Dudley, then the Officer in Charge of the Investigations Division in the Office of Internal Oversight Services (OIOS), had tampered with evidence in a case assigned to them. In their Tribunal complaint, they alleged – and the UN Dispute Tribunal concurred – Dudley subjected them to an unfair and irregular investigation.

The UNDT ruling was explicit:

The Tribunal finds that the decision to conduct an investigation against the Applicants [Postica and Nguyen-Kropp] and the manner in which it was carried out was tainted by procedural irregularity and manifest unfairness.

In a separate ruling, the Tribunal further attributed the irregular procedures and unfairness to Dudley himself. In the decision the Tribunal revealed that Dudley informed a judge of “voluminous and critical documentation” against him, from which he had “no way of defending himself” (UNDT Order No.308 (NY/2010).

The Secretary General appealed the 2014 UNDT decision in favor of Postica and Nguyen-Kropp, and the Appeals Tribunal vacated it on the technicality established in 2014: the tribunals cannot review retaliation cases. Therefore, whatever the facts of the matter, the UN justice system cannot intervene.

Subsequently, Postica and Nguyen-Kropp filed a complaint about the Ethics Office decision that found they had not been subjected to retaliation. In a UNDT ruling, Judge Goolam Meeran wrote that he was obliged to dismiss a meritorious complaint because of the Appeals Tribunal’s 2014 decision. Clearly frustrated that his legal options were curtailed, Meeran wrote:

In Nguyen-Kropp and Postica UNDT/2013/176, the Dispute Tribunal found that the investigation was retaliatory, failed to follow due process, and paid scant regard to the risk of reputational damage to the Applicants. The Respondent was ordered to pay compensation to the Applicants. The Appeals Tribunal vacated the Dispute Tribunal’s judgment in Nguyen-Kropp and Postica 2015-UNAT-509, finding that the appeals were not receivable because the decision to initiate an investigation was preliminary in nature. Thus, the Applicants were denied a remedy based on another technical finding of the Appeals Tribunal on receivability.

Faced with a second UNAT ruling that withholds protection from Postica and Nguyen-Kropp, Beatrice Edwards, GAP’s International Program Director, said:

UN whistleblower protections are really a booby-trap. Whistleblowers come forward believing the Ethics Office and the Tribunal will protect them, only to find that the Ethics Office will not and the Tribunal now cannot. This is a classic right-without-a-remedy situation.

In the absence of validation for the whistleblowers, of course, the integrity in OIOS has diminished. The apparent impunity of specific officials undermines the staff’s confidence in the independence and competence of the Office. Michael Dudley remains in place as the Deputy Director of the Investigations Division, and the entire Oversight Office has become enmeshed in a snare of scandal and litigation. 

CONTACT: Bea Edwards, GAP International Program Director
Phone: 202-457-0034 Ext. 155
Email: beae@whistleblower.org

Government Accountability Project

The Government Accountability Project is the nation's leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, GAP's mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, GAP is a nonprofit, nonpartisan advocacy organization based in Washington, D.C. GAP was consulted by U.N. management when the organization created its initial protection against retaliation policy and has advised several staff associations within the U.N. system about whistleblower protections.

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