2025-UNAT-1559, Emma Reilly
UNAT Held or UNDT Pronouncements
The UNAT held that the Secretary-General had not implicitly withdrawn delegated authority to the Under-Secretary-General for Management Strategy, Policy and Compliance (USG/DMSPC) when the Chef de Cabinet sought advice from the USG/DMSPC.
The UNAT held that the UNDT did not err in concluding that the USG/DMSPC reasonably rejected the report of the March 2020 Alternate Chair. The UNAT affirmed that the Administration was empowered impliedly to decline to act on a report that it considered as having exceeded its authorized parameters. Moreover, the UNAT concluded that the USG/DMSPC had the delegated authority under Section 8.8 of ST/SGB/2017/2/Rev.1, to decide on a recommendation from the Ethics Office when the response from the head of office, in this case OHCHR, is not satisfactory. The lack of response from OHCHR in this instance was deemed an indication of dissatisfaction.
The Appeals Tribunal concluded that the UNDT did not conduct a judicial review of the report and the recommendations of the March 2020 Alternate Chair. The UNDT appropriately reviewed whether the Administration acted reasonably and in a non-arbitrary manner to reject his recommendations as a nullity.
The UNAT found that the UNDT did not err in determining that the USG/DMSPC’s decision to refer the matter to OIOS for investigation, rather than to an Alternative Investigation Mechanism (AIM), was lawful as it is only when both parties hold roles higher than D-2 that the USG/DMSPC would not have such delegated authority.
The UNAT held that the UNDT did not err in determining that no conflict of interest prevented OIOS from investigating the former staff member’s protection against retaliation request. In addition, the former staff member’s assertions of bias were too vague and tenuous to support a reasonable assertion of apparent bias by OIOS.
The UANT dismissed the appeal and affirmed the UNDT Judgment.
Decision Contested or Judgment/Order Appealed
A former staff member of the Office of the United Nations High Commissioner for Human Rights (OHCHR) contested the decision not to implement the March 2020 recommendations of the Alternate Chair of the Ethics Panel of the United Nations (EPUN), not to provide her with interim protection measures, and not to refer her retaliation case for investigation by the Office of Internal Oversight Services (OIOS). She also claimed compensation for the wrongs allegedly committed against her.
In Judgment No. UNDT/2023/121, the UNDT dismissed the application. The former staff member appealed.
Legal Principle(s)
While it can on occasion be appropriate to infer evidentially that something is consequential on some earlier event, there must be a sufficient evidential foundation for drawing such an inference. Speculation alone is insufficient. Cases are more usually decided by the acceptance of facts established directly through witnesses or by reliable documents.
A conflict of interest that a decision-maker may have, or appear to have, is one possible element of the wider legal notion of bias.
Grounds for an assertion of conflict of interest or bias must be established and assessed objectively. The existence and significance of a conflict of interest or bias is a matter of fact and degree in each case. Administrative decisions must be made, and challenges to their makers’ entitlement in law to do so on grounds of bias must be robustly scrutinized.
The function of the Appeals Tribunal is not to conduct a general appeal but rather one of review and, if established, correction of errors of the tribunal at first instance. The onus of identifying UNDT error lies on the appellant.
In an appeal from a judicial body such as the UNDT, an appropriate degree of deference must be given to the advantages enjoyed by the first instance Judge, especially on questions of fact-finding.
The Appeals Tribunal will intervene where errors of law, significant and consequential errors of fact, errors of procedure affecting decisions of cases, or absences or excesses of jurisdiction are established by an appellant, but those appeals are not an opportunity to re-run or patch up an unsuccessful case.