Internal Dispute Resolution at International Organizations

1. Informal Procedure

The Office of the Ombudsperson serves as the primary program available to staff for informal resolution of employment disputes. Use of the Office is voluntary, and recourse to the Ombudsperson is not a prerequisite for using formal procedures.

The Ombudsperson counsels staff and assists the resolution of work-related disputes through mediation and other means, including outreach to managers, with the staff member’s consent.^[xiii] The Ombudsperson exercises strict confidentiality.^[xiv] The Ombudsperson also presents annual reports regarding the Office’s caseload to the Fund’s Managing Director and staff.^[xv]

In 2012, the IMF created a new Mediation Office.^[xvi] The Fund’s part-time Mediator will operate independently of the IMF’s management and departments.^[xvii] In addition to mediating employment-related conflicts, the Mediator will reach out to staff about the Office’s services.^[xviii]

2. Formal Procedure

The Fund has three formal processes for resolving staff member conflicts: Administrative Review, a Grievance Committee, and the IMF Administrative Tribunal.

Administrative Review. Administrative Review enables staff to obtain review of a contested decision first by a department head and then, if necessary, by the Human Resources Department (HRD). A request for review should detail the nature of the decision at issue, the reasons for the staff member’s grievance, any alleged inconsistencies with IMF policy, and the relief sought.^[xix]

Staff must seek Administrative Review before requesting consideration by the Grievance Committee, unless the disputed decision was made by Human Resources or the Managing Director, in which case staff may proceed first to the Grievance Committee.^[xx]

The Grievance Committee.  The Grievance Committee is an advisory body to the Managing Director of the IMF. The Committee serves as a neutral three-person panel, including a chairperson, a staff member appointed by the Staff Association Committee (SAC), and a staff member appointed by management.^[xxi]

The Committee chair, an independent professional with relevant experience and legal expertise, is selected by the Managing Director following consultation with the SAC.^[xxii]  The Committee’s proceedings and recommendations to management are strictly confidential.^[xxiii]

 The Grievance Committee reviews complaints brought by staff alleging inconsistencies between management decisions and IMF regulations governing conditions of employment.^[xxiv] Typically, the Grievance Committee holds oral hearings, but with the parties’ consent, may consider a grievance on the written record alone.^[xxv]

In cases in which the grievant elects to be represented by legal counsel, a representative from the Legal Department traditionally will represent the Fund.^[xxvi] The SAC maintains a library of cases and has a Legal Advisor available for consultation by staff. If the Grievance Committee deems a grievance “well-founded in whole or in part” it can recommend reimbursement of the grievant’s legal fees and other costs.^[xxvii]

At a hearing on the merits, both parties may present evidence, and examine and cross-examine witnesses under oath.^[xxviii] Following the hearing, the parties generally submit written briefs.^[xxix] After consideration, the Grievance Committee issues its report and recommendations to the IMF’s Managing Director, who issues a decision.^[xxx]

IMF Administrative Tribunal. The IMF Administrative Tribunal (IMFAT) is the final and highest level of review of administrative decisions.^[xxxi]

It functions as an independent body with jurisdiction over “any application [] by a member of the staff challenging the legality of an administrative act,” which includes “any individual or regulatory decision taken in the administration of the staff of the Fund.”^[xxxii]  The IMFAT is further empowered to both review and issue judgments regarding decisions of the Managing Director and Executive Board.^[xxxiii] A claim within the Grievance Committee’s jurisdiction must exhaust the Committee’s procedures before being heard by the IMFAT.^[xxxiv]

Members of the IMFAT, consisting of the President and four other judges, are typically prominent jurists with experience in international administrative law.^[xxxv] They are appointed by the Managing Director, following consultation with the SAC and Executive Board.^[xxxvi] Although the IMFAT usually decides cases based on the written record, it may hold oral hearings.^[xxxvii]

Ethics Office. In 2000, the IMF recruited its first Ethics Advisor, who “promotes awareness of ethics issues, provides training and education on ethics, and carries out impartial inquiries and investigations concerning alleged violations of the [Fund’s] rules and regulations . . . .”^[xxxviii]

The Ethics Advisor thus plays dual roles: counseling staff members on ethics issues and investigating potential violations of Fund policies. The Ethics Office also hosts a confidential Integrity Hotline through which staff and outside parties can report allegations of misconduct.^[xxxix]

 3. Additional Dispute Resolution Resources

The IMF maintains additional human resources divisions and staff to facilitate dispute prevention and resolution, including management coaches, a Special Advisor on Staff Diversity, and Advisors against Harassment.^[xl]  

1. Informal Procedure

The Bank’s informal process seeks to resolve conflicts through non-adversarial means, including ombuds services, mediation, and peer assistance and review.^[xlv]

Ombuds Services. The Ombuds Services operate independently of the Bank’s formal structure, and offer impartial and confidential assistance to staff with employment-related concerns.^[xlvi]

The Ombudsman does not issue decisions, create policy, or conduct investigations. However, the Ombudsman may provide recommendations, and with staff’s consent, may speak with Bank staff at any level to assist dispute resolution.^[xlvii] The Ombudsman may also reach out to management regarding systemic issues facing the organization.^[xlviii]

Respectful Workplace Advisors (RWA). RWAs are volunteer peers who offer confidential assistance to staff experiencing employment-related conflicts and concerns.^[xlix]

RWAs do not formally participate in dispute resolution, but rather, provide advice to empower fellow employees to resolve problems or engage the Bank’s other conflict resolution services.^[l] The Ombuds Services Office supervises the RWA program.^[li]

Office of Mediation Services. The Office of Mediation Services (MEF)^[lii]

provides mediation, group facilitation, and training services.^[liii] Mediation assists parties in communicating their concerns with the ultimate goal of resolving conflicts through voluntary agreement.^[liv] When mediation is successful, the parties’ agreement becomes the basis of a Memorandum of Understanding that binds the parties, but does not declare either party at fault.^[lv] To invite participation, such services are both confidential and non-adversarial.^[lvi]

In addition, MEF provides group facilitation, “an informal, confidential process in which an impartial third party, a facilitator, can improve the quality of communication, problem-solving and decision-making processes in groups.”^[lvii] The facilitator first meets with a group about the assistance desired and then provides a proposal detailing the process ahead.^[lviii] If the proposal is accepted, the facilitator will assist in subsequent meetings and discussions.^[lix]

Peer Review Services. Peer Review Services (PRS) invites employees to seek review of an employment-related matter before an impartial panel of their peers.^[lx]

Peer Review Members, who are volunteer staff, determine whether a Bank decision accords with relevant organizational rules and conditions of employment.^[lxi]  Peer Review Members serve in panels of three, and include both managers and non-managers. “Where feasible, the Peer Review Secretariat will designate to serve on the panel at least one Peer Review Member who is either at the same grade level or shares similar work experience [as the grievant] . . . [and] at least one Peer Review Member from the same Bank Group institution . . . .”^[lxii]

 Following a request for PRS review, management will typically issue a response.^[lxiii] The Panel will then review the parties’ submissions and may hold a hearing, if requested.^[lxiv] The Panel submits its findings to the Vice President of the manager responding in the case.^[lxv] The Vice President, after consulting with the Vice President of Human Resources (HRSVP), will determine any relief to be provided.^[lxvi]

Office of Ethics and Business Conduct (EBC).  The Office of Ethics and Business Conduct (EBC) informs staff about and oversees compliance with ethical obligations set forth in the Bank’s Code of Professional Ethics, among other sources.^[lxvii]

EBC’s services are available to employees and their families, as well as clients and vendors.^[lxviii] The Office also maintains a confidential Ethics HelpLine for reporting misconduct.^[lxix]

2. Formal Procedure

Administrative Tribunal (WBAT). Generally, the WBAT consider cases only after staff have sought assistance through available dispute resolution remedies, although for disciplinary and termination cases, staff may proceed directly to the WBAT.^[lxx]

The WBAT consists of seven independent judges from different states among the Bank’s membership.^[lxxi] Tribunal decisions are final.^[lxxii]

An employee submits a case to the WBAT through an application to the Tribunal’s Executive Secretary.^[lxxiii] The Executive Secretary then forwards the application to the Bank, inviting its written response.^[lxxiv] An employee may reply to the written answer received by the Executive Secretary, and the Bank may conclude with a rejoinder.^[lxxv] The WBAT decides most cases on this written record, although it can hold oral proceedings on its own accord or at a party’s request.^[lxxvi]

3. Additional Associated Services

The World Bank offers additional resources to assist staff and managers, including a Personal and Work Stress Counseling Unit,^[lxxvii] an Office of Diversity Programs,^[lxxviii] and a Staff Association that maintains a full-time attorney who represents staff in their disputes.^[lxxix]

1. Informal Procedure

The Office of the Ombudsman, comprised of the Mediation Division and the Ombudsman, serves as the UN’s informal system of justice. The office acts as an independent, neutral, and confi­dential resource for employees seeking resolution of workplace matters, including conflicts with fellow staff.^[lxxxvi]  The office received 1,764 cases in 2010—a 35 percent increase from the 1,287 cases it received the year before.^[lxxxvii]

Ombudsman. The Ombudsman division includes the UN ombudsmen, UN fund and programme ombudsmen, and regional ombudsmen located in seven regional branch offices.^[lxxxviii]

Upon receipt of a complaint from an employee, the Office will assign an Ombudsman to the matter, typically within five working days.^[lxxxix] The Ombudsman will meet with the employee to learn more about the employee’s concerns and will assist in evaluating available means for addressing the situation.^[xc] While the Ombudsman cannot personally issue formal decisions, he or she may help an employee to access more formal avenues of conflict resolution.^[xci] 

Mediation Division. The Mediation Division assists parties in arriving at their own solutions to workplace problems.^[xcii]

The Division offers services through staff mediators and a network of on-call mediators at headquarters and the regional branches.^[xciii] Cases arrive at the Mediation Division either at an employee’s request or by referral from another UN unit.^[xciv]

2. Formal Procedure

The formal procedures at the UN underwent more significant reform than the informal procedures, largely to address egregious failures in rendering binding decisions, timely addressing cases, and maintaining neutrality and independence. 

Internal Justice Council. Established as part of the UN’s redesigned administrative justice model, the Internal Justice Council advances the integrity of the institution’s internal judicial bodies and system of justice generally.^[xcv]

Specifically, the Council reviews candidates for judicial appointments to internal UN tribunals, drafts a judicial code of conduct, and evaluates progress in implementing the redesigned justice system.^[xcvi] The Council consists of five members, including two representatives from staff and management, and two independent jurists, one proposed by staff and the other by management.^[xcvii] These four members select by consensus an additional jurist to serve as Council Chair.^[xcviii]

 UN Dispute Tribunal (UNDT). The UNDT is the first judicial level of the UN’s formal dispute resolution system.^[xcix] The UNDT replaces the former Joint Appeals Boards (JABs) and Joint Disciplinary Committees (JDCs), which had functioned through volunteer staff, experienced immense delays, and demonstrated insufficient knowledge of staff rules.^[c] At the urging of the Redesign Panel, the Secretary-General thus recommended “replacing the advisory bodies with a professional and decentralized first-instance tribunal that issues bindings decisions that either party can appeal to an appeals tribunal.”^[ci] The UNDT presently operates through three full-time judges, located in New York, Geneva, and Nairobi, along with two part-time judges in other offices.^[cii]

UN Appeals Tribunal (UNAT). The UNAT is the court to which appeals from the UNDT are taken.^[ciii]

The UNAT is composed of seven members, who sit primarily in panels of three in New York.^[civ] From July 2009 through December 2011, the UNAT reviewed 284 cases and delivered 190 decisions.^[cv] In the period from July through December 2011, the Tribunal considered 39 cases from staff members appealing UNDT decisions.^[cvi] Of these, “34 were rejected, two were entertained in full or in part, and three cases were remanded to the UNDT.”^[cvii]

Office of Staff Legal Assistance. Under the prior system of justice, the UN provided pro bono legal assistance to staff through the Panel of Counsel.^[cviii]

While staff members had the right to select outside counsel, they could also seek assistance from the Panel, which included volunteer members.^[cix] Importantly, however, the “overwhelming majority of individuals serving as counsel . . . lack[ed] legal qualifications.”^[cx] The UN replaced the Panel with OSLA, a professionalized office that provides free counsel through legal staff at UN headquarters and individual legal officers in other offices.^[cxi] OSLA also enlists the support of pro bono attorneys and members of the UN community with legal backgrounds.^[cxii] The Office evaluates the merits of individual claims and may decline representation where, for example, it determines that an “application has little chance of success.”^[cxiii]

1. Informal Procedure

Ethics Officer. The Ethics Officer provides information and training about relevant ethics rules, counsels staff and management regarding ethics inquiries, and conducts initial reviews of retaliation complaints.^[cxvii]

Consultation of the Ethics Officer about matters of retaliation does not foreclose staff’s use of the ILO’s other dispute resolution procedures.^[cxviii] The Ethics Officer’s review may, however, result in submission of the case to the Human Resources Department, which will determine whether to commence related disciplinary proceedings.^[cxix] Between May 2007 and December 2009, the Ethics Officer received only one complaint of retaliation.^[cxx]

The Ethics Officer position was previously performed by the Deputy Legal Adviser.^[cxxi] Acknowledging the potential conflicts of interest that might arise between these positions, the former Ethics Officer agreed that if consulted by staff in his capacity as Ethics Officer, he would not later handle the same matter in the Office of the Legal Adviser.^[cxxii] The current Ethics Officer also serves in another position at the ILO, although not in the Office of the Legal Adviser.^[cxxiii]

Office of the Mediator. The Office of the Mediator provides facilitation, coaching, and mediation services in an independent and informal environment.^[cxxiv]

Mediators safeguard the confidentiality of all parties, materials, and sessions.^[cxxv] The Office also offers the services of trained peer facilitators, including more than 60 volunteer facilitators at headquarters and in regional offices.^[cxxvi]

2. Formal Procedure

ILO Administrative Tribunal. The ILO Administrative Tribunal (ILOAT) serves as the ILO’s formal administrative body for review of employment-related claims. Interestingly, other international organizations may consent to ILOAT’s jurisdiction over cases arising within their institutions.^[cxxvii]

This broad jurisdiction derives in part from the history of the League of Nations. The League, which was founded in 1927, maintained an Administrative Tribunal that also serviced the ILO, which was created eight years earlier. In 1946, the League ceased operations and conveyed its functions and property to its successor, the United Nations.^[cxxviii] The ILO—the first of the UN’s specialized agencies and a natural fit, given its oversight of labor rights—assumed management of the Administrative Tribunal.^[cxxix] Three years later, the ILO modified the Tribunal’s founding statute to enable, through formal declarations, its jurisdiction over matters arising in other international organizations.^[cxxx]

The Tribunal decides nearly 100 cases annually, convening twice yearly in Geneva for sessions of three weeks each.^[cxxxi] Decisions are rendered by seven judges, who sit in panels of three and rule by a majority vote.^[cxxxii] The Tribunal’s rulings are final.^[cxxxiii]

If the ILOAT decides that a complaint should be fully examined, it will request written pleadings from the parties as well as any relevant supporting evidence and transcripts from earlier proceedings.^[cxxxiv] The ILOAT may also, by its own initiative or at a party’s request, order additional investigation, “including the appearance of the parties before it, the hearing of expert and other witnesses, the consultation of any competent international authority, and expert inquiry.”^[cxxxv] The ILOAT determines on a case-by-case basis whether oral proceedings are warranted and whether the public may attend any such hearings.^[cxxxvi] Judgments of the Tribunal must articulate the basis for the decision and be submitted to both the ILO’s Director-General and the staff member.^[cxxxvii] For cases that originate outside the ILO, judgments are also delivered to the Director-General of the defendant organization.^[cxxxviii]

1. Informal v. Formal Procedures

While international organizations must provide formal administrative procedures for resolving disputes or risk intrusion by domestic courts, informal procedures are not strictly required, and thus, have evolved organically to reflect the composition and purpose of each organization. Although seemingly formalistic, the balance of informal and formal procedures bears real and far-reaching consequences for international organizations and their staffs.

Informal procedures offer accessible, private, and non-adversarial avenues for addressing staff concerns–—aspects of critical importance to staff who may be reluctant to confront individuals in positions of authority.^[cxxxix] Such procedures also allow organizations to address and ideally resolve disputes before staff-management relations erode to a perhaps irreparable degree. Resolution of disputes soon after they arise increases not only workplace harmony, but also efficiency, eliminating both the time and cost demanded by more formal procedures.^[cxl]

Absent informal procedures, formal mechanisms may appear too distant, intimidating, or intrusive to enjoy participation by employees. At the same time, absent more formal and professional mechanisms, such as administrative tribunals, staff and organizations alike may suffer incomplete or biased reviews of disputes, or inconsistent application of policies and procedures among similar cases. Although many dispute resolution mechanisms defy precise categorization as either formal or informal, organizations must nevertheless strive to create systems that through an array of such procedures prioritize the fair treatment and consideration of employees, and the objective and consistent review of management decisions.^[cxli]

While all of the international organizations profiled have formal administrative tribunals, their internal dispute resolution procedures differ greatly at the lower level. The UN has the most formal structure below the tribunal, consisting of a formal judicial body, the UNDT. Interestingly, despite the availability of a multi-level series of formal courts, informal mechanisms, such as the Ombudsman and Mediation Services, enjoy far greater usage.

The World Bank has the least formal procedures below the administrative tribunal level. Its Peer Review Services, in addition to ombuds and mediation processes, appear to be extremely effective. Of major concern, however, the World Bank’s informal process fails to produce an administrative record. As such, the WBAT effectively must consider each case de novo.^[cxlii] This reality poses significant costs for both grievants and the organization, as proceedings may prove unnecessarily redundant or time-consuming.  The potential loss of evidence similarly challenges the integrity of tribunal findings.^[cxliii] The World Bank’s emphasis on peer review at earlier stages prioritizes non-adversarial dispute resolution; however, tension mounts between the accessibility of review by staff with knowledge of the World Bank and the need for consistent and accurate application of policies by professionals.

The IMF system constitutes a middle ground of formality. The Fund has a central Grievance Committee—a process that some have criticized as being too formal and ill-suited to provide informal dispute resolution.^[cxliv] The Fund’s new mediation program seeks to address this concern. The IMF maintains an Ethics Advisor, yet the dual advisory and prosecutorial roles of this position act as a strong disincentive to use of the Ethics Office by employees, who may well hesitate to solicit advice if formal investigation and disciplinary actions could result.^[cxlv]

2. The Three-Tiered Process

Although the existence and administration of informal procedures vary by organization, commonalities exist in the structure of more formal mechanisms. Indeed, commentators note a trend toward a three-tiered structure at international organizations, including: administrative review; an internal review stage by a staff-management committee; and judicial review.^[cxlvi] 

1. Needs and Demands of International Civil Service

International civil servants trade allegiance to their countries for service to a collective of nations in support of ambitious missions—from promoting labor rights to preventing war. An international code of conduct highlights the seriousness of this undertaking: such employment requires strict independence from and impartiality in the face of national interests.^[clxii] Unprotected by the employment laws and safety net systems of their countries, these employees rely upon their organizations for compensation and job security, as well as a range of benefits.

The working conditions of many international civil servants echo the gravity of their global responsibility. Field employees of the UN, for example, face harsh conditions, frequently encumbered by danger and despair.^[clxiii] Isolation from family, culture, and colleagues increases stress. Headquarters staff is not immune from pressure, frequently working at a distance from their personal support networks and countries, and “often at the center of world attention, in the world’s largest and most visible fishbowl.”^[clxiv] Devotion to a shared mission and an established hierarchy gives rise to a stoic culture in some organizations, leading field employees in particular to withhold requests for assistance, lest their fitness for service or allegiance be questioned.^[clxv]

2. Staff Associations and Collective Bargaining

Employee organizations assist staff in navigating an organization’s internal dispute resolution procedures. Such organizations generally owe their existence to staff rules and regulations referencing the “freedom of association,” and take the form of staff associations, committees, or unions. In several organizations, including the World Bank and IMF, the staff associations do not formally represent employees as a union would, but rather, assist employees in identifying relevant resources and avenues for filing claims. While these associations may also serve an active role in expressing the views of staff before and be consulted by management, they do not possess collective bargaining power, that is, the authority to negotiate agreements with management regulating work relations, conditions, and other terms of employment.^[clxvi] 

In contrast, other organizations, including the UN and ILO, are served by unions that enjoy more traditional collective bargaining relationships with organizational managers, negotiating binding agreements on a host of employment policies and procedures. Unsurprising, given its mandate to promote workers’ rights, the ILO hosts a staff-management relationship characterized by collective agreements, including an agreement related to conflict resolution.^[clxvii]

At the UN, the right to collective bargaining is frequently supported in practice, but is not explicitly recognized.^[clxviii] While staff and management engage in negotiation on various topics, bargaining on other matters is circumscribed by limits from Member States on management’s authority.^[clxix]  Collective bargaining does not exist, for example, in the realm of compensation.^[clxx] In light of this distinction and to prevent confusion over whether the right exists, even within limits, a recent report by the UN’s Joint Inspection Unit recommended the approval of “a Staff Regulation explicitly recognizing the right to collective bargaining . . . .”^[clxxi]

Collective bargaining assumes an important role in dispute resolution procedures. First, it provides a substantial opportunity to gain employee “buy-in,” as such systems will better reflect employee needs and input. Collective bargaining also enables administrative consistency, particularly when staff-management agreements directly address subjects of grievances. Negotiation further ensures that procedures will be revisited and will evolve in response to experience and feedback. Further, the collective bargaining representative usually represents employees or funds representation, thus alleviating a primary inhibition to bringing claims.

Unfortunately, the role of collective bargaining appears undeveloped or inconsistent at many international organizations. Staff-management relations governed by consultation alone too often lead to a perception that staff input is merely advisory and that the most important aspects of employment rest unilaterally with management. Perceptions such as these are underscored by a unique dichotomy at some institutions: Member States may share membership in the ILO, and thus, be bound by significant labor rights protocols,^[clxxii] and yet fail to insist on all such rights for international employees. Similarly, international financial institutions, such as the IMF and World Bank, may urge loan recipients and financed projects to respect labor rights, including the right to collective bargaining, that are not always afforded to the organizations’ staff.^[clxxiii] These policies send a mixed message to staff, who may monitor external compliance with labor standards that do not appear an internal priority.

The restriction or absence of collective bargaining over remuneration benefits and work rules may be attributed to an interest in administrative efficiency—a significant consideration in colossal organizations such as the UN. Additionally, international organizations may view their missions as so unique and vital that they may be reluctant to diminish this role through collective bargaining. The organizations’ creation and support by nearly 200 countries means that collective bargaining might cede to staff organizations prerogatives of member countries.

 While limits on collective bargaining may be appropriate, they must be balanced against the significant benefits of bargaining, including constructive dialogue between organizations and employees, prevention of conflicts, and enhanced trust between employees and employers.^[clxxiv]

3. Representation by Counsel

Legal counsel play a fluid role in many internal dispute resolution systems. Although organizations may employ legal staff to oversee organizational procedures and defend against employee disputes, the appearance of counsel may be discouraged or banned during some dispute resolution procedures, such as peer review, to avoid lending an adversarial air to such proceedings.^[clxxv] Limitations on the participation of counsel, while intended to promote conflict resolution, may frustrate the ability of employees to prepare and prove their claims.  In any case, where organizations are represented by counsel, fairness dictates that employees should likewise enjoy access to counsel to remove any procedural advantage from imbalanced representation.^[clxxvi] The contours of such access vary significantly among organizations.

Although the IMF Staff Association Committee assists employees, it does not offer full legal assistance, and employees must hire their own attorneys. Grievants face IMF staff attorneys with expertise in the operations, legal system, and procedures of the IMF. This imbalance might be addressed through one of two changes: by awarding attorneys’ fees more generally to grievants who bring claims, or by banning participation of attorneys at the Grievance Committee level, as in World Bank’s Peer Review process. 

The IMF’s payment of litigants’ attorneys would pose a conflict of interest, as the attorneys’ acceptance of IMF funds might imbue their representation with a desire to satisfy management and ensure their continued employment.^[clxxvii]  Additionally, the IMF is too small to accrue sufficient funds through its Staff Association Committee to finance grievants’ attorneys. A similar situation exists at the World Bank, where the “Bank Group agreed to fund the hiring of an attorney who will work in the Staff Association to provide legal assistance to staff members contemplating filing or [having] filed a Request for Review with the PRS.”^[clxxviii]

If attorneys are barred from the Grievance Committee stage, the central benefit of careful elucidation and application of policies in an adversarial setting could be lost, leaving this function to the IMFAT, which is ill-equipped for the development of a fulsome evidentiary record. At the IMF and World Bank, employees can choose to have another employee represent them. However, as this representative usually works for the institution, conflicts of interest remain. Further, as the IMF may still be represented by legal counsel, procedural imbalance likewise endures.

The UN Office of Staff Legal Assistance (OSLA) maintains significant funds with which to assist employees, but confronts the same potential conflicts of interest as the World Bank. In addition to UN funds, OSLA has established a Trust Fund to which individuals can donate.^[clxxix] OSLA provides services to staff members free of charge. Importantly, the office is not obligated to take all cases, and it decides to do so after evaluating individual claims. Indeed, between July 2010 and June 2011, OSLA represented staff in only 31 percent of cases before the UNDT.^[clxxx]

1. Reluctance of Employees to Use the System

Reluctance to engage with dispute resolution procedures plays an undeniable role in many international organizations. While international civil servants agree to work on behalf of their organizations’ missions and independently of their countries, they are nevertheless individuals with unique backgrounds that influence how they communicate, and thus, interpret conflict. Cultural considerations may influence an employee’s decision to challenge authority by filing a claim—an action that in some Eastern cultures, for example, may be correlated with shame and failure.^[clxxxi] Further, many employees fear that if they raise complaints they will hurt their career prospects or garner a bad reputation. For international civil servants, personal and professional dependence on their employer serves as a powerful disincentive to pursuing grievances. This is especially true of staff living outside of their home countries with family accompanying them, given that their visa status may be dependent on their employment at the international organization against which they are filing a complaint.^[clxxxii]

Reluctance to bring claims challenges the hearing of legitimate grievances, and in turn, institutional fairness. Absent disputes and challenges, an institution loses a source of valuable criticism that enables it to change and improve. The loss of employee trust and belief in institutional fairness undermines morale, hindering organizational effectiveness and endangering allegiance to and service of an organization’s mission.

Institutions must make affirmative efforts to reassure staff members regarding use of internal dispute procedures and to educate human resources staff about cultural norms that may affect participation in such systems. Critically, the institutional imperative of applying rules equally to employees means that “cultures and nationalities are not formally recognized in delivery of administrative decisions or the application of conflict management systems.”^[clxxxiii] Recognizing the limited capacity of dispute resolution processes to address cultural differences, organizations should look to substantive policies to reflect the diverse needs of staff—from policies concerning leave and travel to protective measures against harassment and retaliation.

Through anti-retaliation policies, organizations can reduce employee anxiety and provide a measure of security for those seeking to use dispute resolution systems. Such provisions could include a sanction of discipline, including termination for supervisors who engage in retaliation, or disincentives, such as triple damages against the institution, or the supervisor and manager individually. Importantly, anti-retaliation policies may exist solely on paper. Protection of employees requires both enactment and enforcement of anti-retaliation policies.

Informal processes of dispute resolution, such as mediation or ombudsmen, may provide additional employee protection in the form of greater privacy. Without published decisions and other formal requirements, an employee might have fewer concerns about other employees, particularly supervisors and managers, learning of a complaint. In reality, this protection comes with significant tradeoffs, including the lack of record-keeping to establish a supervisor or involvement in the dispute resolution process. Notably, even with strong attempts to keep disputes confidential, no organization can guarantee that the facts or circumstances of a dispute will stay private, and so, this deterrent to participation remains

2. Lack of Faith in the System

Effective internal dispute resolution systems rely upon the trust of staff in the systems’ ability to protect them and to impartially investigate claims of wrongdoing. Several incidents suggest that such trust may be abused or understandably lacking.

In May 2011, the Washington Post reported on the widespread problem of sexual harassment at the IMF, after media reports about former IMF Managing Director Dominique Strauss-Kahn’s arrest on sexual assault charges cited a 2008 allegation of an improper sexual relationship with a female IMF employee.^[clxxxiv] The article reported that “[i]n 2007, officials at the fund declined to investigate a complaint by an administrative assistant who had slept with her supervisor, and who charged that he had given her poor performance reviews to pressure her to continue the relationship. Officials told the woman that the supervisor planned to retire soon, and therefore there was no point in investigating the charges . . . .”^[clxxxv] Another employee alleged that, in 2009, she reported a senior manager for sending her explicit emails, yet the Fund did nothing to investigate the claim.^[clxxxvi] The IMF adopted a new code of conduct in May 2011, and Ethics Advisor Virginia R. Canter noted that the Fund had taken a “series of strong steps to protect employees” since she joined in 2010 and that her office would investigate all complaints.^[clxxxvii]

Concerns over the treatment of sexual harassment claims also arose at the UN. According to a May 2009 Wall Street Journal article,^[clxxxviii] “[s]everal women who complained of harassment say their employment contracts weren’t renewed, and the men they accused retired or resigned, putting them out of reach of the [UN] justice system.”^[clxxxix] The internal dispute resolution practices seemed arbitrary and “mired in bureaucracy,” with “accusers having no access to investigative reports.”^[cxc] For example, one employee reported that her complaint of sexual harassment over several years by her supervisor was investigated and cleared by her boss’s colleagues.^[cxci]

The new UN administrative system benefits from centralization and allows for discovery and analysis of organization-wide problems. Despite such changes, the UN has been highly criticized, most notably by a former senior official, for its flawed internal investigations and lacking accountability.^[cxcii] In July 2010, Inga-Britt Ahlenius stepped down as Undersecretary General of the Office of Internal Oversight Services, accusing Secretary General Ban Ki-Moon of systematically “undercut[ting] the independence of her office, initially by trying to set up a competing investigations unit under his control and then by thwarting her efforts to hire her own staff.”^[cxciii] The accusations afford a critical lesson: a formal system of internal dispute resolution has limited effectiveness if staff members do not believe their claims will be fairly investigated.

1. Feedback

Feedback related to internal dispute resolution procedures offers valuable information to organizations that enhances both their effectiveness and responsiveness. This organizational learning process is hindered in many organizations by the practice of providing the result or disposition of employee disputes only to management in the grievants’ department, if even there.

Critically, management may have a propensity to consider validated complaints anomalies and to ignore their clear implications. Indeed, units and individuals subject to criticism are too often ignored, and managers found to have made errors or worse are not held accountable. The “circle the wagons” approach of management, where properly criticized, allows problems to fester and reoccur. An Inspector General could offer an effective feedback mechanism by providing periodic reports of cases and decisions to management throughout the organization.^[cxciv] An IG could also alert management to the need to amend specific policies.

Currently, many of the dispute resolution entities submit reports to their institutions. Some of these reports are disseminated to staff. However, there is generally no systematic effort to modify policies in light of institutional experience. Routine and comprehensive reviews of internal dispute resolution systems by independent third-parties, coupled with follow up by top management, will enable organizations to responsibly prevent problems. While many organizations currently undertake third-party reviews periodically or in response to criticism, a more standardized approach could aid in cultivating a culture of accountability and trust.

2. Lack of Transparency

Lack of transparency is a major source of employee frustration with current internal dispute resolution procedures at international organizations, although some organizations make more information public than others. Unlike domestic courts, in which an employee can read published opinions or see the end result of similarly situated plaintiffs, employees at international organizations generally have little way of knowing if they have been treated differently than previous grievants. Only the administrative tribunals uniformly release their decisions, including to the general public.

In the United States, government agencies are subject to the Freedom of Information Act, and unions routinely make information available to their members. Further, section 8(d) of the Labor Management Relations Act^[cxcv] and section 7114(b)(4) of the Federal Service Labor-Management Relations Act^[cxcvi] guarantee rights to information relevant to pursuing grievances. Employees at international organizations are at a distinct disadvantage.

The international organizations discussed in this article handle the issue of transparency and accountability differently. The UN publishes comprehensive statistics about employee disputes and problems at both the administrative tribunal and lower levels. This information includes not only information about the total number of cases filed at the UNDT, but also information about the nature and outcome of such cases. These detailed accounts serve an important accountability function, allowing employees and the public to review trends within the UNDT. The UN also provides a detailed report of the Ombudsman and Mediation Services.

In contrast, the IMF does not publish any information about its complaints and decisions below the Administrative Tribunal level, and thus, lacks transparency. Naturally, privacy considerations play a part. Publication of a decision may discourage, rather than encourage, the filing of complaints. Even with redaction of names, within an institution, identities may be recognized. Retaliation may result and be difficult to prove, given the subtlety of such cases. The ILO Mediator publishes a publicly available report. While the World Bank does not publish statistics on its website, its CRS compiles yearly information into a comprehensive report.

Each organization produces its own unique problem areas. The more these issues are identified and broken down by type, unit, staff level, and other factors, the greater the opportunity for employees and upper management to spot trends and craft remedies.