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UN Tribunal Announces Judgments in Two Key Whistleblower Cases, Defers on a Third

June 30, 2014
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(Washington, DC) – On Friday, June 27, the United Nations Appeals Tribunal (UNAT) in Vienna announced oral verdicts in two whistleblower cases, but delayed the release of their judgment in the appeal of Government Accountability Project (GAP) client James Wasserstrom, a former senior staff member at the U.N. Interim Administration Mission in Kosovo (UNMIK). The judges did not provide a specific date for the release of their ruling in that case, leaving Wasserstrom in judicial limbo after seven years of seeking relief from retaliation for reporting corruption.

The cases in which rulings were announced were those of Caroline Hunt-Matthes, a former senior investigation officer with the Office of the United Nations High Commissioner for Refugees (UNHCR) and Khalilur Rahman, a former U.N. Conference on Trade and Development (UNCTAD) employee.

In the Hunt-Matthes case, UNAT ruled that the complaint was not receivable by the U.N. Dispute Tribunal (UNDT), the U.N.'s court of first instance. This UNAT ruling therefore vacates a UNDT decision that was highly supportive of whistleblowers and critical of the U.N. Ethics Office, which has failed to protect 99% of the nearly 400 staff members who have sought its support under the U.N. whistleblower protection policy since its establishment in 2006.

"The judges had the opportunity to show their support for whistleblowers by holding the Ethics Office to account for its repeated failures in this case," said GAP Executive Director Bea Edwards. "Instead, they ruled on a technicality of timing and penalized Hunt-Matthes. The judgment essentially rewarded the U.N. for its lack of commitment to protecting whistleblowers from retaliation."

"After 10 years of litigation, what remains etched in legal history is that the Ethics Office was unethical in the discharge of its duty and the UNHCR inspector general abused power in retaliating against a staff member who refused to allow political interference in investigations," said Hunt-Matthes. "The U.N. wasted significant resources to fight accountability in this case, ignoring every effort I made to mediate. Whistleblowing is ill-advised in this climate."

In a second Hunt-Matthes judgment, UNAT ruled that UNDT’s refusal to allow the Secretary-General to call a witness to rebut evidence was a violation of due process. The case was remanded to UNDT for a hearing de novo before another judge. "We're still waiting for the written judgment, but in failing to grant an oral hearing, UNAT appears to have gone awry in pronouncing on issues which neither side have submitted for their decision in this case," said Hunt-Matthes.

The original UNDT decision found that Hunt-Matthes' 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." (UNDT/2013/84, para. 110)

Rahman's case represents one of only two cases in which the Ethics Office confirmed retaliation based on the findings of an internal investigation. Nonetheless, Secretary-General Ban Ki-moon failed to enforce the Ethics Office's decision, forcing Rahman to appeal to UNDT for its enforcement. Among other things, Rahman challenged the failure to select him for a D-2 post and the decision to return him to a retaliatory work environment at UNCTAD. But UNDT Judge Jean-Francois Cousin dismissed his case without a hearing (Judgment UNDT/2013/097).

Rahman appealed to UNAT the failure of the institution to restore him to the professional and financial standing he had prior to making protected disclosures. The United Nations, for its part, appealed the limited order to disclose what, if any, penalties were imposed on the perpetrators. UNAT dismissed both appeals and affirmed UNDT’s judgment. However, the judges also stated that Rahman, as a victim of retaliation, was entitled to be informed by the Secretary-General of the disciplinary measures imposed on the persons responsible for the retaliation. That portion of the judgment was the one bright spot for whistleblowers in Friday’s decisions.

George Irving, counsel for Rahman, described the ruling as a huge disappointment. "My client waited for five long years for justice, but did not get it," he said. "The U.N. missed the final opportunity to meet even the minimum thresholds of universally accepted best practices in this very first case of proven retaliation within the secretariat. But my client has been left worse off than his retaliators. The judgment is a clear proof that the entire whistleblower protection system – from the U.N. Ethics Office, to the Secretary-General, to the U.N.'s internal justice mechanism – is completely broken and the organization has no intention to fix it."

The UNAT is the court of last resort in the U.N. internal justice system, and its decisions are final and binding. On Friday, the judges issued oral summaries of their judgments. UNAT announced that it would post summaries of the outcomes sometime this week. Full, written judgments are expected to be available in approximately a month.

To watch the UNAT judges announce the verdicts click here. The Wasserstrom deferral advisory appears at 4:00 and 52:30; the Hunt-Matthes verdicts at 29:00 and 45:20; and the Rahman verdict at 46:00.

Background

Hunt-Matthes is a former senior investigation officer with the Office of the United Nations High Commissioner for Refugees (UNHCR). She suffered retaliation after making protected disclosures via internal UNHCR channels, which were ignored by the High Commissioner for Refugees, including interference/obstruction in an investigation of the rape of a U.N. staff member in Sri Lanka by a UNHCR staff member (the rape was subsequently confirmed); her supervisor's decision to investigate a colleague without disclosing to him that he was under investigation; the organization's failure to register a sexual harassment complaint against the High Commissioner (subsequently confirmed); and the unlawful detention of refugees by senior UNHCR staff, leading to the death of a refugee while in detention. After blowing the whistle, she was fired by email with one day's notice while she was on medical leave recovering from a work-related accident.

In 2006 Hunt-Matthes filed a request for protection against retaliation with the U.N. Ethics Office. The Ethics Office found that she engaged in a protected activity but concluded that there was no prima facie case of retaliation because there was allegedly no connection between the retaliation and her whistleblowing.

UNDT's initial decision in Hunt-Matthes' case (Judgment UNDT/2013/85) was highly critical of the Ethics Office. Judge Coral Shaw found that the Office "did not assess the Applicant's claim in conformity with the correct obligations, principles and standards…" and 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." In a separate decision, Judge Shaw upheld Hunt-Matthes' claim that a negative Performance Appraisal Report and the non-renewal of her fixed-term appointment were acts of retaliation against her for her whistleblowing. The United Nations filed three appeals challenging these verdicts and the receivability of her claim against the Ethics Office.

In 2009, Rahman reported misconduct by the then-special advisor to the Secretary-General of UNCTAD, a Geneva-based organization. Following an investigation, the Ethics Office found Rahman to have been the victim of severe retaliatory action by two senior officials of UNCTAD and recommended that disciplinary actions be taken against them and that Rahman be transferred laterally to another U.N. agency with the same grade and level of managerial responsibility. Top management at the United Nations, however, rejected the Ethics Office's recommendation and ordered Rahman to return to UNCTAD despite the fact that the organization refused to guarantee his protection. For nearly two years, the United Nations kept Rahman in limbo while it debated what to do. He was separated from his home and his family, causing further emotional harm and financial drain. His once promising career was put on hold. The perpetrators, on the other hand, were rewarded with promotion or post-retirement re-employment. Rahman challenged before UNDT this failure to enforce the Ethics Policy and asked to be made whole.

Wasserstrom disclosed an alleged conspiracy to pay a kickback to senior U.N. and Kosovo officials. More information about his case is available here.

 

Contact: Dylan Blaylock, GAP Communications Director
Phone: 202.457.0034, ext. 137
Email: dylanb@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.

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