Friday, 25 June 2010
Thursday, 17 June 2010
By NEIL MacFARQUHAR
Published: June 16, 2010
The United Nations Dispute Tribunal, inaugurated last July to replace a process so deteriorated that employees challenging employment decisions sometimes waited years for answers, has succeeded in shrinking a backlog of about 300 cases.
But some of the decisions issued by the tribunal contend that Mr. Ban and the highest levels of management are determined to preserve a system in which their personnel decisions remain absolute. One judge even characterized their lack of cooperation as “an attack on the rule of law.”
Diplomats, lawyers and others tracking the cases describe the United Nations’ stance on the tribunal as contradictory, if not hypocritical, given the organization’s role in promoting the rule of law globally. “The organization has to decide from the S.G. on down whether this is an organization that respects the rule of law or not,” said George Irving, a former president of the staff union and a lawyer who has worked on administrative cases at the United Nations for more than 30 years. “What you are witnessing essentially is a power struggle. It is all about control, who is going to control the system.”
In several instances, the United Nations has ignored a judge’s orders to produce documents or have officials testify about how decisions were reached. In one case, the judge ordered the organization to pay $20,000 in compensation for the mistreatment of a translator who questioned why he was not promoted.
“Sometimes there may be some cases of decisions which are not totally in line with what the Secretariat has been doing,” Mr. Ban said at a news conference last month. “But we will try to respect all the decisions.”
Mr. Ban and his advisers believe they have the prerogative to make decisions in some administrative matters, which has become an issue with the court, he acknowledged. He declined to discuss specific cases.
Critics suggest that the secretary general is violating at least the spirit and possibly the letter of the rules approved by the General Assembly.
The old system was completely internal. There were no hearings, and the secretary general essentially served as his own judge and jury. It was deemed too slow and too haphazard to cover the needs of about 60,000 United Nations employees globally.
The new system, which the internal literature describes as “independent, professionalized, expedient, transparent and decentralized,” is run by independent judges whose decisions are binding. United Nations employees cannot sue the organization in national courts, so the tribunal is their sole route to address grievances. New York, Geneva and Nairobi, Kenya, each have a judge, with some extras appointed to deal with the case backlog. A three-judge appeal panel will begin hearing appeals in New York on Monday.
Without the power to declare someone in contempt of court, the tribunal judges rely on the Secretariat to engage with them in good faith. But some judges believe accountability goes only so high. Part of the problem stems from the rigid hierarchy of the United Nations, lawyers and other experts say. The judges were assigned an administrative rank that puts them below an assistant secretary general, so those who rank higher often feel that answering the tribunal is beneath them, they said.
Noting that an employee was fired despite a pending tribunal hearing, a May order from the Nairobi tribunal said that the decision “is significant for the contempt it shows of these proceedings.” It said that the United Nations’ response “does not bode well” for a system supposedly based on international law and due process.
“You have to look at the culture here,” Judge Michael F. Adams, an Australian judge, said at the end of his stint on the dispute panel in New York. “Someone in the position of under secretary general is never confronted with the requirement that particular questions be answered.”
Judge Adams has been notably scathing in his written decisions about the lack of due process in the tribunals. “The United Nations legal system may be an island, but it does not inhabit its own planet,” he wrote in one.
The outcomes of three appeals of Judge Adams’s rulings are being watched with particular interest to see what power the higher panel grants the tribunal.
In one case of an employee passed over for a promotion, Susan Maddox, the lawyer representing the secretary general, refused to produce any of the crucial documents requested or even identify the person who made the decision to refuse to cooperate. The secretary general, like a head of state, had to be allowed to make some decisions in private, the United Nations maintained.
Judge Adams dismissed the idea that the secretary general is akin to a head of state, calling him the chief administrative officer. The tribunal is not examining whether the decision was right, he said, but whether it was arrived at in the right way.
In another case, James Wasserstrom, who now serves as the anticorruption officer at the American Embassy in Kabul, is seeking $1 million in lost wages, compensation for defamation and mental distress, plus legal expenses. He contends that he was fired from his job with the United Nations peacekeeping mission in Kosovo after reporting his suspicions of corruption. He said his mistreatment included being arrested at the border, having his house searched and having posters bearing his picture hung around the headquarters to bar his admittance.
Because he had been identified by internal investigators as a whistle-blower, he should have been protected from losing his job, he contends. But an Ethics Office investigation found no link between his allegations of corruption and his dismissal. Judge Adams ruled that the United Nations turn over that report and the evidence behind it, but Ms. Maddox refused.
In a third case, Samer Abboud, a senior translator, said he was passed over for promotion, the victim of discrimination by Egyptian officials who dole out plum jobs to their inner circle.
Shaaban M. Shaaban, an under secretary general and the most senior Egyptian official at the United Nations, initially testified to the tribunal, but then refused any further dealings pending the appeal. Judge Adams found that Mr. Shaaban’s testimony lacked credibility, calling him “an unreliable witness in respect of every important issue of fact.” The judge also found that Mr. Abboud was “subjected to insult, patronizing comments and retaliatory threats,” and ordered the United Nations to pay him $20,000 in compensation. The decision is under appeal.
Tuesday, 8 June 2010
The United Nations Staff Union has stood alone since 2006 in defense of the staff's conditions of service and welfare. The Forty-second Staff Council, which is arguably the best Council in the annals of our Union, rallied and supported the President of the Staff Union in withstanding unprecedented onslaughts by the administration to create divisions within the Union's ranks. By contrast, the current Forty-third Staff Council has made a U-turn to not only make unlawful decisions but also to invite the Administration officials to interfere in the internal affairs of the Staff Union.
The most egregious decision is the attempt to overturn the resolutions of the Extraordinary General Meetings, adopted on 16 April 2003 and 28 June 2005, which barred the Staff Union to participate in the Staff-Management Coordination Committee (SMCC) and the Central Review Bodies until specified actions have been effected, and the SMCC mechanism is viable and has the confidence of all parties. To date, the Administration has not effected those actions, which include the amendment of the staff selection system to allow the Central Review Bodies to fully and effectively discharge their proper roles.
The Chairperson of the Staff Council, Mr. Fred Doulton, should have ruled out of order a recent draft resolution, bizarrely sponsored by a former First Vice-President, Mr. Candusso, to resume participation in the Staff-Management Coordination Committee (SMCC). The ensuing decision, like the previous decision to send Ms. Barbara Tavora- Jainchill as an observer to the informal gathering of the SMCC in Vienna in January 2010, is unlawful.
According to the Statute and Regulations of the United Nations Staff Union, the General Meeting is the highest ranking body of the Union. The Staff Council is the legislative body which determines operational policy, except where such policy is determined by the General Meeting. The Staff Council cannot overturn the decisions of a General Meeting. Only lawful decisions taken by theCouncil are binding on the Executive Board. The leadership, which constitutes half of the Executive Board, is accountable to the staff-at-large. The President is the executive officer of the Staff Union who “shall lead, manage and represent the Union; plan and oversee, either personally or through delegation of authority to other individuals or committees, the implementation of the policies and decisions of the Union; be responsible for all correspondence elaborating policy matters; act as certifying official of the Union, including endorsing and guaranteeing that certain required standards have been met” (see Regulation 10.1).
The President has not delegated his authority to any individual, including the function of representing the Staff Union at SMCC-XXXI. Nonetheless, Mr. Fred Doulton, the Chairperson of the Staff
Council and Ms. Barbara Tavora-Jainchill have directly corresponded with the Under-Secretary- General, Department of Management (USG/DM) and the Assistant Secretary-General, Office of Human Resources Management (ASG/OHRM) to complot the implementation of the unlawful decisions. On every such occasion that has become known to him, the President has advised the ASG/OHRM against interfering in the internal matters of the Staff Union. The President has pointedly expressed to the ASG/OHRM the illegality of the Staff Council's decisions.
The ASG/OHRM has ignored the advice of the President and abetted the insurrection being led by Ms. Barbara Tavora-Jainchill and Messrs Fred Doulton and Guy Candusso, a staff representative supervised by the ASG/OHRM. The ASG/OHRM has arrogated herself the role of arbiter of the Staff Union with the power to ordain who the representatives of the Staff Union are on the Joint Negotiation Committee and the Staff-Management Coordination Committee. The ASG/OHRM has further arrogated herself the authority over the SMCC “to accept UNSU’s participation in this year’s SMCC,” which is a contravention of ST/SGB/2002/15. She is abusing her authority by picking and choosing the Staff Union’s representatives, an unprecedented action with graveconsequential harm to the Staff Union and to staff representation in the United Nations Secretariat. Her actions bring into question her probity and constitute disrespect for the Statute and Regulations of the United Nations Staff Union and the functions and responsibilities of its officers.
The ASG/OHRM recently chaired a meeting of the Joint Negotiation Committee in disregard of the President's expressed concern that it was premature to hold such a meeting on the matter of the proposed electronic sign in/sign out, for all staff, without any draft policy. The ASG/OHRM proceeded anyway, without the participation of the President and First Vice-President.
The 2010 Annual Insurance Enrollment Campaign is scheduled to take place in June 2010. Even as salaries have remained static, we have learned that the Health and Life Insurance Committee has recommended an increase in premiums by 10.7 per cent for Empire/Blue Cross; 5.1 per cent for Aetna; and 6.3 per cent for CIGNA. The President and First-Vice President have advised the staff representatives on the Health and Life Insurance Committee (HLIC) to propose to the HLIC that the consideration of all premium increases should await the receipt of results of the audit of claims from Price-Waterhouse. The matter is now due for consideration at the Joint Negotiation Committee. If the recent actions by the ASG/OHRM are any guide, it is expected that the Administration will pick and choose participants who are amenable to the Administration's chicanery. The staff should therefore expect a hefty increase in their health insurance premiums, which we shall rally against even if it requires seeking a court injunction.
The usurpation of the authority of the Staff Union President shows just how far the Administration is willing to go to claim before Member States that the Staff Union is back on board in SMCC. Some of you seem to be of the opinion that the Staff Union should participate in order to influence policy but the sad fact is that, in its current form, the SMCC is not a negotiating body where both parties have equal resources and power to influence the outcome, let alone to enforce the implementation of agreements. The historical record attests to this fact and it is the main reason why all staff representativebodies boycotted the SMCC from 2003 through 2006. Conversely, the United Nations Staff Union's absence from the SMCC farce has allowed it to present the unfettered views of the staff directly to Member States, pursuant to General Assembly resolution 35/213, whereby the General Assembly reiterated its readiness to receive and consider fully the views of the staff. The absence from the SMCC has allowed the Staff Union to influence beneficial outcomes for staff; it is why the Administration is desperate to place the Staff Union back in its control through the medium of SMCC.
It should be recalled that the Secretary-General created the SMCC in June 1980 after the Headquarters Staff Council in New York had successfully lobbied, in 1979, for direct access by the staff representatives to the Fifth Committee on personnel questions (see resolution 34/220). The Secretary-General devised the SMCC mechanism to weaken the ability of the Staff Council in New York to challenge the Administration (see A/C.5/35/16, paragraph 10). The presentation of the views of the staff to the General Assembly has since been muffled and substituted with the report of the SMCC.
Any reversal of our stand regarding our non- participation in the SMCC in any capacity will be a betrayal of the trust and sacrifice of many colleagues, past and present. The insurrection led by Ms. Tavora-Jainchill, and abetted by the ASG/OHRM, makes a mockery of such sacrifices. It is reprehensible and demonstrates a complete lack of integrity by the two parties.
The President intends to explore the option of filing an application before the United Nations Disputes Tribunal (UNDT) against the Secretary-General regarding the interference of the Administration officials in the internal affairs of the Staff Union, a grave violation of not only staff representational rights but also the relevant international conventions on labour relations.
President, United Nations Staff Union