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Disciplinary Procedure

LAURENCE FAUTH
REPRESENTING INTERNATIONAL CIVIL SERVANTS SINCE 2002


JANUARY & FEBRUARY 2012 – TIPS AND INFORMATION NEWSLETTER


An international organization may expect from its staff the highest standard of integrity. Staff Regulations and Staff Rules of international organizations do therefore comprise provisions that require from its staff to regulate their conduct with the interests of the organization only in view, a principle to which the staff traditionally subscribes by oath in a declaration mostly identical in each international organization (the so-called ‘oath of loyalty’). *This principle is nowadays completed by the new Standards of Conduct for the international civil service devised by the International Civil Service Commission (ICSC)in 2001/2002, which replaced the former Standards of 1954.

Beside the explicit obligation to be loyal to the organization – the impartiaility as cornerstone of the independence of international organizations – the staff has to abide to existing rules and regulations within his Organization but also respect the abstract principle of integrity, which embraces all aspects of behaviour of an international civil servant, including such qualities as honesty, truthfulness, incorruptibility, tolerance, respect for diversity and gender equalityormutual respect (which comprises also the relation between management and staff) etc.

Concretely, this means inter alia that staff members have to follow local laws, cannot accept instructions from an external source or any gifts, honours or remunaration without authorization, engage in any form of harassment within the organization or in conflict of interest, disclose any confidential information about the Organization or colleagues, disobey instructions from supervisors or commit funds without proper authorization.

In case of misconduct, a staff member (or a temporary employee) might face disciplinary proceedings. The internal disciplinary mechanismsusually foresee official mandatory reporting and whistle-blower protection plans against retaliation, an investigation phase by the Administrationin case of prima facie evidence of misconduct, a hearing before an internal disciplinary committeeand finally a disciplinary sanction if the misconduct is proven. The sanctions can range from a simple note in the personnel file or the deferment of salary increments to summary dismissal for serious misconduct.

But this procedure can be flawed on many accounts. It starts with the official mandatory reporting which often does, quite understandably, usually not live up to its expectation: colleagues are reluctant to report on any form of misconduct by supervisors for fear of reprisals even if a whistle-blower protection policy exists to protect from retaliation. An Ethics Office will not always follow-up on complaints for lack of evidence or support by other staff members. The internal investigation undertaken by the Organization(usually by the internal oversight service) into alleged misconduct, while it should follow The Uniform Guidelines for Investigations (2ndEdition) as endorsed by the Conference of International Investigators of the United Nations Organizations held on 10-12 June 2009, does not always respect the principle of an independent investigation, which comprises the obligation to take account of inculpatory but also exculpatory evidence or to inform the person under investigation in a timely manner.

Finally, because of various past scandals within the United Nations system (for instance the corruption related to the Oil-for-Food Programme), international organizations seem nowadays to expedite disciplinary procedures by applying a ‘zero tolerance’ policy, which often results in summary dismissal even for what seems to be minor misdemeanours. This raises concerns as disciplinary procedures, whilesupposed to act as a deterrent, are thus mainly used as punishment and do not fulfil their other social function anymore, which is literally to disciplinean individualand to give him a second chance.

The different international Administrative Tribunals regularly have to decide on disciplinary cases. Thus theAdministrative Tribunal of the ILO(ILOAT) has always stated that where the staff member denies misconduct, the onus is on the Administration to prove the misconduct beyond reasonable doubt. The new UN Appeals Tribunal on the other hand has recently rejected this standard of proof: in UNAT Judgment 2011-164 it decided that because disciplinary cases are not criminal and that liberty is not at stake, misconduct must only be established by clear and convincing evidence, which requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt–the truth of the facts asserted has only to behighly probable.

Clearly, notwithstanding the fact that the new standard of proof of UNAT seems also problematic, allowing for abuse of purpose as staff might be summarily dismissed even when doubts exist as to there misconduct, the reform of the internal justice system of the United Nations has so far not succeeded in harmonizing the international civil service law.


* For instance Staff Rules of the United Nations, Regulation 1.1: “I solemnly declare and promise to exercise in all loyalty, discretion and conscience the functions entrustedto me as an international civil servant of the United Nations, to discharge these functions and regulate my conduct with the interests of the United Nations only in view, and not to seek or accept instructions in regard to the performance of my duties from any Government or other source external to the Organization.”; See also for instance UNESCO Staff Regulation 1.9, or IMO Staff Regulation 1.9 with almost identical wording.