Last week, the World Bank Administrative Tribunal released its latest decisions. GAP found decision No. 437 (AI No. 2) to be particularly significant, given its implications for whistleblowers and for those who raise racial discrimination issues at the Bank. In this case, the Tribunal ruled that the Applicant’s performance evaluation and termination were “an abuse of discretion,” and “arbitrary,” and awarded the Applicant three years’ salary and costs. While GAP applauds the Tribunal for awarding certain financial relief to this long-suffering whistleblower, we were disturbed to see that the judges dismissed the Applicant’s retaliation claims in one sentence, without exploring the merits of those claims in-depth. Similarly, the Tribunal dismissed the Applicant’s racial discrimination claims, in a decision that maintains the pattern of racial discrimination that GAP first reported in Racial Discrimination at the World Bank. Although the Applicant in this case (whom GAP represented on an informal, advocacy basis) wished to return to the Bank, the Tribunal ruled against his reinstatement:
Neither the Tribunal’s Statute nor its Rules require that the Tribunal must order reinstatement when it finds a termination decision to be arbitrary. The Applicant demonstrated certain unprofessional behavior when he was not appointed as the ICP Global Manager. Over the years, he has criticized his managers and engaged in communications that failed to meet the standard expected of a Bank staff member (see AI, Decision No. 402 [2010]). He has made no secret of his contempt for the institution where he now seeks reinstatement. In these circumstances, the Tribunal does not consider reinstatement to be an appropriate remedy. Instead, the Bank must pay compensation to the Applicant.
Ironically, the Tribunal directly contradicted this statement in its own ruling by categorically dismissing the Bank’s unsubstantiated claims that the Applicant had engaged in “critical workplace behaviors” and “unprofessional communication.” The Tribunal observed that before the Applicant filed a complaint his performance was “praised” by his director. The Applicant was recognized as a dedicated and hard working “high performer,” who brought “much value to the [department’s] work,” and possessed “excellent technical and interpersonal and client skills.” Clearly, the Applicant’s adverse performance evaluation after he disclosed wrongdoing and filed racial discrimination charges stands in stark contrast to his performance evaluations before he filed. Nevertheless, the Tribunal refused to reinstate this wrongfully terminated whistleblower as he had “criticized his managers.” But whistleblowers are, by definition, “critical” of corruption and often question the failure of managers to address wrongdoing, as this Applicant did.
The judgment shows that even when whistleblowers win before the Tribunal, they still lose, as the consequences of the retaliation to which they’re subjected are usually not fully addressed. Because whistleblowers are not guaranteed reinstatement at the Bank, their employment record can remain tarnished even when they “win.” Vindicated whistleblowers may consequently lose their visas and be obliged to return, jobless, to their home countries. Meanwhile, those who retaliated against them are rarely held accountable by the Tribunal.
In 2008, when the World Bank passed a new whistleblower protection policy, GAP warned that the policy had fatal flaws: one of these is the lack of guaranteed reinstatement for whistleblowers who successfully contest retaliatory dismissal. At the time, the Bank’s Office of General Counsel asserted that a right to reinstatement is unnecessary because it is only denied in “extraordinary” cases. GAP contested this statement after finding that of the complainants who challenged termination successfully on due process or substantive grounds between 2000 and March 30, 2008, less than 15 percent were actually re-instated. The remaining 85 percent were dismissed from institutional employment despite prevailing. The prevailing Applicant in decision 437 joins the growing ranks of Bank employees who were dismissed despite prevailing.
Regarding the Applicant’s racial discrimination charges, he argued
“that the termination of his employment provides not only a classic example of how the Bank mistreats African staff members who bring racial discrimination charges against their managers, but also shows how far the Bank would go to stifle racial discrimination charges. The Applicant alleges ‘blatant racism in the Bank in general and in DECDG in particular’ and points out the virtual absence of black professionals in DEC Vice Presidency.”
Once again, the Bank has failed to substantiate a case of racial discrimination. In 2009, the GAP reportfound that not a single complaint of racial discrimination brought before the Bank’s internal justice system in the previous 12 years had been validated by the Tribunal.
Shelley Walden is International Officer for the Government Accountability Project, the nation’s leading whistleblower advocacy organization.