What does your job involve?

To put it simply, as a UNDT judge I deal with applications from staff members contesting administrative decisions and/or disciplinary sanctions held against them by the organization, acting in its capacity as an employer. My main role is to analyze those applications and the respondent’s reply, as well as the evidence provided by the parties, to determine the adequate procedural steps of the case and adjudicate it within a reasonable and efficient timeline.

However, there is more to it since these functions also involve an in-depth knowledge of the internal legal framework and international administrative law jurisprudence, as well as of the working and the managerial culture of the UN.

This is quite a challenge, which takes time and demands an open mind so that the judge can build a bridge between his/her domestic experience and the challenges of adjudicating in an international and multicultural context. Unfortunately, not all the judges are ready to build this bridge.

Above all (and beyond possessing the necessary technical skills) in the UN, the judge must have “emotional intelligence” in order to be able to understand and accept a variety of views different from his or hers, and to be able to live with it.

What did you do before and how is the UN in comparison?

Before coming to the UN, I was a professional judge in the Portuguese judiciary (since 2000) and a labor court judge, in Lisbon (since 2009). Our judicial system, similar to what happens in Spain, France, Poland and Italy, has a highly selective Judiciary School that chooses its candidates based on open competitions and anonymous exams. Our training is very specific and entails a long period of work in courts under the supervision of senior judges, prior to our definitive appointment as judges. In order to apply to a labor court I had to undergo specialized training in that area of law.

In my work as a judge, in Portugal, I also had the opportunity to attend several conferences and specialized courses in my area of expertise because this is something in which the European Union and its member states invest a lot. The EU is committed to having a highly qualified judiciary throughout its member states because this results in better application of European Union law.

Access to training and greater involvement of UN judges in conferences and outreach activities is something that is lacking in the UN’s DNA, at least for us, judges of the UNDT.

I was also the President of the Lisbon Labour Court during the 2013-2014 financial crisis (which led to a significant increase in the number of cases that our court had to deal with) and this was quite demanding, from a managerial point of view as President at the time.

The UN, however, is a totally different reality as it is a hybrid jurisdiction (between administrative and labor law), operating within the specific setting of norms and jurisprudence that the judge needs to learn and assimilate. Nonetheless, the UNDT has a more restrictive jurisdictional scope than a municipal labor court. For example, in most of European labor law, jurisdictions staff unions have legal standing before labor courts to represent and defend the legal interests and collective rights of their associates, which is not the case in the UN setting, since it only deals with individual administrative decisions.

Another difference relates to the fact that labor courts in national jurisdictions can order reinstatement when a dismissal is found to be illegal, whereas in the UN a staff member who was wrongly terminated or dismissed cannot expect to be reinstated, as the organization has the option to pay compensation in lieu.

Another example relates to the fact that the UNDT Statute and the Rules of Procedure do not clearly establish sanctions to deal with parties and/or witnesses who do not cooperate with the Tribunal, for instance, by refusing to testify, to provide documents, or simply by failing to comply with judicial orders. We barely have contempt of court powers.

Indeed, the only available tool is “referral for accountability” before the Secretary General, and even this mechanism needs to be handled with care since it only applies to staff members and may lead to a disciplinary procedure, and referral for accountability cannot be seen as sanctioning mechanism.

How does it feel, knowing your judgements can have such an impact on a staff member’s livelihood or career?

I take my work very seriously and one of my major concerns relates to procedural timelines. It is essential to ensure that staff members get a judicial decision within a reasonable time. Even though this is not always possible, the UNDT has made huge progress since 2019, by implementing a backlog elimination plan and a duty judge system which allow for urgent motions to be filed by the parties to be decided almost immediately. We are now at our lowest number in terms of caseload.

However, as I have mentioned, due to the restrictive nature of our jurisdiction, sometimes justice is not totally achieved. Since we have limited jurisdictional powers (as defined by the UNDT Statute) it is not always possible to repair the unfairness created by a wrongful decision that deeply affects a staff member’s right, and I am specifically referring to the lack of reinstatement and the cap put on compensation for damages (two years). I would also like to highlight the need to incorporate into the UNDT’s jurisprudence more principles of international labor law, since the system tends to rely too much on the administrative perspective.

What would you advise staff who are considering going to the Tribunal?

I would advise staff to seek legal advice (either from OSLA or from an outside lawyer) and to consider mediation as a preliminary step, as it is a useful tool that establishes an immediate dialogue with the organization and can prevent further escalation of the conflict. Preventing further conflicts is important to preserve the employment relationship and trust between staff members and the organization.

Once in the formal system, the staff member needs to be patient and be ready to disclose pertinent information, personal data and/or documents that may be essential for the proper adjudication of the case. Some measure of resilience and good faith is an essential key for a successful litigation.

Are you concerned with the number of judgements that were appealed against?

A high appeal rate means the system is working, and this fact needs to be seen as part of the normal course of litigation. More important than the number of appeals is the quality of the jurisprudence produced, particularly at the UNAT level. Indeed, one way of assessing the quality of a justice system is to check the case law of the Appeals Tribunal and see if and how legal gaps are filled, how complex legal questions are addressed, if the jurisprudence is congruent, and whether there are good precedents on which the lower court can rely.

An erratic jurisprudence, or one that is too formalistic and leaves important questions unanswered, does not serve the interests of justice.