UNAT Held or UNDT Pronouncements
The UNAT found that there was clear and convincing evidence that Mr. Hunt, in coordination with colleagues, was covertly communicating with a news media reporter on the Investment Fund transaction, the approval process, and the former Representative of the Secretary-General (RSG)’s role and had thereby leaked information to the reporter.
The UNAT held that Mr. Hunt failed to prove that his action of reporting possible misconduct within UNJSPF to outside sources was a protected activity under the Secretary-General’s Bulletin on protection against retaliation. The UNAT agreed with the UNDT’s finding that Mr. Hunt failed to show why he believed that mismanagement within UNJSPF was a threat that would cause substantive damage to the Organization’s operations. There was also no proof on the record that he would have been subjected to retaliation, had he reported these concerns through the established internal mechanisms, e.g. to OIOS or the Assistant Secretary-General for Human Resources Management.
The UNAT found that Mr. Hunt’s multiple statements about the lack of experience and qualifications of the Complainant were a means of disparagement and his claims that the Complainant did not have the required competencies and qualifications were without merit, and defamatory both to her professionalism and her integrity.
The UNAT held that the UNDT did not err when it found that Mr. Hunt’s comments about the Complainant were not work-related disagreements but amounted to acts of harassment and abuse of authority. He was expected while discharging his duty of reporting possible misconduct to uphold the highest standards of efficiency, competence, and integrity in his dealings with the Complainant, especially given his senior position.
UNAT observed that Mr. Hunt engaged in outside activities without prior authorization and should have sought the Secretary-General’s approval to exercise, even on a non-remunerated basis, the top management administrative, financial, and representative roles he had assumed for a for-profit entity.
The UNAT held that the seriousness and the compounded nature of the forms of Mr. Hunt’s misconduct justified the imposition of the sanction of separation from service. The mitigating factor that Mr. Hunt considered that he was fulfilling his fiduciary duty to protect the assets of the Pension Fund did not outweigh the multiple aggravating factors. The disciplinary measure was imposed within accepted limits with due regard to the applicable norms and the purpose of discipline.
Lastly, the UNAT was troubled that the Secretary-General expressly refused to comply with a UNDT order. The UNAT observed that if there is such blatant disregard by the Secretary-General of a UNDT order in the future, it was open to the UNDT to refer for possible action to enforce accountability, even if it is a senior official who has made the decision not to comply.
The UNAT dismissed the appeal and affirmed the UNDT Judgment.
Decision Contested or Judgment/Order Appealed
A former staff member of the United Nations Joint Staff Pension Fund contested the decision to impose on him the disciplinary measure of separation from service with compensation in lieu of notice and with termination indemnity for (1) engaging in conduct which amounted to harassment and abuse of authority towards the Complainant; (2) disclosing confidential and commercially sensitive information to the media and (3) engaging in unauthorized outside activities.
The UNDT in Judgment No. UNDT/2024/056 dismissed the application in its entirety for lack of merit.
The former staff member appealed.
Legal Principle(s)
The abuse of power is an independent event or set of events that can be investigated on its own. Proof of negative consequences on the career prospects of an individual following an abuse of power is not a condition sina qua non for assigning responsibility to the abuser. The abuse of power is in and of itself prohibited conduct.
It is the engagement in a protected activity that leads to the grant of the status of a whistleblower though not every subsequent activity undertaken by a whistleblower is necessarily a protected activity. The subsequent activity must materially be a protected activity, and be made through the established mechanisms of reporting, or outside these mechanisms when the legal conditions are met.
Although legitimate motives can constitute a mitigating factor in some cases, such motives may not be enough to exclude the mere existence of harassment and abuse of power, and a staff member’s good intentions to stop what he/she believes is wrong and to do what they believe is right does not give them blanket permission to engage in all sorts of harassment and abuse of power toward other staff. The staff member’s conduct must be reasonable and proportionate in the circumstances and made on objective grounds.
When an entity is established as a for-profit, the aspects of generation of revenues, profitability, and distribution of dividends become crucial for the entity, regardless of the initial raison d’être of its founders, and the legal nature of the entity is an important criterion to determine whether the activities undertaken thereunder were for social or charitable purposes.
Non-remunerability is a core feature of activities for social and charitable services, and the absence of remuneration is not sufficient to establish that the activity itself is for social or charitable purpose.
It is not an option for a party to simply not comply with an order of one of the Tribunals. The internal justice system cannot operate effectively if parties decide not to comply with either Tribunal’s orders and face no consequences.