In a positive precedent for whistleblowers throughout the UN system, a United Nations Dispute Tribunal (UNDT) judge recently ruled that a whistleblower should have access to the investigative report about his retaliation claims (Wasserstrom v. Secretary-General of the United Nations). Judge Michael Adams also critiqued the Office of Internal Oversight Services, Ethics Office and Secretary-General for failing to protect the whistleblower, who “alleged that certain actions, supported by other senior UN officials, concerning the management of public enterprises in Kosovo were unlawful.” (para. 2)
According to the decision:
- “The applicant had a legal right to be protected from retaliation. This right required a sufficient and adequate investigation… The decision of the Director that there was no retaliation on the basis of the investigation report, which must have been seriously flawed, deprived him of these rights, which were part of his contract of employment.” (para. 19)
- “The applicant laboured under the substantial handicap of not having been given a copy of the report and, accordingly, being unable to subject it to any critical analysis … real questions were raised as to the soundness of the judgment of the investigators, both legal … and factual. It would follow, of course, that there was no sufficient basis for any recommendations to the Secretary-General and the decision that the investigation and the report was adequate was wrong and should be reviewed and corrected. ”(para 12)
- “A rational decision-maker would seek a response from someone in the applicant’s position before making a final decision that no retaliation occurred, having regard to the vital importance of a correct decision, not only in the interests of the staff member, but also the manifest interests of the Organization. Even a latent error in the investigation report, for example, one exposed by the applicant’s response may, if it were significant, vitiate the decision which would (on this hypothesis) be based upon a significant error of fact… the right to a decision that is properly founded is a contractual right of the staff member.” (para. 35)
- “Unless staff members subjected to retaliatory action or the threat of it can be confident that their reports will be adequately and competently investigated and considered, it is most unlikely that those reports will be made… The knowledge of the investigators that their work will be examined by an independent and critical eye will encourage thoroughness, fairness and accuracy. It will also give to staff members who fear retaliation or have suffered it, confidence that they will be protected or the situation made good and give malefactors good reason to fear that they will be found out.” (para. 25)
- “It follows that the applicant and his legal adviser should have access to the report and accordingly, I order that a copy of it be made available…” (para. 37)
The judge also states that “there are a number of troubling matters that raise concerns about the adequacy of the investigation and the correctness of the Director’s approach” (para. 36) and that “the decision as to whether retaliation occurred or not must be made by the Ethics Office (or the Director) and it cannot be delegated to OIOS. It follows from this that the investigation report must be carefully examined and an independent decision made as to the occurrence of retaliation or otherwise…” (para. 24) This latter point is critical, given the many concerns that have recently been raised about OIOS’ competence.