Tuesday, 12 October 2010

Bertucci v. Secretary-General of the United Nations

ILIB - International Law in Brief

Click here for decision (approximately 16 pages)

The United Nations Dispute Tribunal, established by the UN General Assembly and operational since July 1, 2009, has issued a decision in Bertucci v. Secretary-General, criticizing the disciplinary proceedings against a former staff member and awarding him compensation for violation of his due process rights. This decision is important because it sheds some light on the administrative procedures within the UN and the inefficient manner in which some disputes are handled internally.

As the decision in Bertucci highlights, the judges appointed by the General Assembly to hear complaints by the UN staff have openly disapproved of the UN’s continued violation of the Tribunal’s orders, including orders to allow staff members access to information necessary for their cases. In Bertucci, the applicant, a former UN employee, was informed shortly before his retirement from the UN that almost $14,000 would be withheld from him due to “pending disciplinary proceedings concerning allegations of mismanagement that had resulted in financial loss.” The applicant complained that he was unable to answer the charges against him because important background information in the form of an internal report was withheld by the UN. He also asked that his contract with the UN be extended until the matter was completely resolved. The organization, however, continued to withhold the requested report and rejected the applicant’s request for extension of his employment contract.

Judge Adams, who was hearing the case and whose decision is final and binding, pointed out that mandatory disciplinary measures and procedures were not followed in Bertucci, leading to an “extremely unfortunate” situation for both the UN and the applicant. Furthermore, the continued uncertainty surrounding the applicant’s case only worsened his position: “The applicant here is in an impossible position, entirely resulting from the Administration’s own making, although it is impossible to deduce whether its delay is caused by indecision about whether to proceed at all or, perhaps, what is the appropriate process for doing so.”

In the end, Judge Adams found that the applicant’s procedural rights were violated but that the funds were appropriately withheld:

[T]he preponderance of evidence establishes that the applicant’s entitlements were lawfully withheld, in that the report disclosed matters which were objectively capable of justifying the conclusion that there was reason to believe he had been guilty of gross negligence resulting in financial loss, even though he may, on fuller examination of the relevant facts, have been found to be entirely innocent.
Judge Adams awarded the applicant $500 as compensation.