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On the nature of the decision taken by the Ethics Office in these cases and Wasserstrom 2014-UNAT-457It is difficult to reconcile the finding of the Appeals Tribunal in Wasserstrom 2014-UNAT-457 that the Ethics Office is limited to making recommendations to the Administration with the nature of the independent assessment and conclusion reached by the Ethics Office in these cases, the decision-making powers accorded under secs. 5.2(2) and 5.8 of ST/SGB/2005/21, and the Organization’s own reference to the Ethics Office making “final determination[s]” on the website of the Ethics Office. It is clear that under secs. 6.1 and 6.2 of ST/SGB/2005/21, the Ethics Office is limited to making recommendations once retaliation had been established. It cannot order or oblige the Administration to take any specific actions. However, it seems apparent that the Ethics Office also has a decision-making role in that it makes the determination as to whether retaliation has in fact been established. In the present cases, the “independent analysis” of the Ethics Office resulted in a final determination that retaliation had not been established. The Ethics Office determined that the Applicants did not have the right to be protected under sec. 1.2 of ST/SGB/2005/21 because no retaliation had occurred. In this sense, the Ethics Office was making a final administrative decision, which affected the rights of the Applicants under their terms of appointment and contract of employment, and which was binding on the Administration in that it was the Organization’s final decision on the matterOn whether acts or omissions of the Ethics Office can be reviewed by the Dispute TribunalHaving considered the role and functions of the Ethics Office in relation to retaliation complaints, the Tribunal is not persuaded by the Respondent’s submission that, because the Ethics Office is independent, the acts or omissions of the Ethics Office “cannot be attributed to the Organization”, and therefore cannot be reviewed by the Dispute Tribunal.The Director of the Ethics Office is appointed by Secretary-General and makes determinations on the rights of staff members under a bulletin—ST/SGB/2005/21—promulgated by the Secretary-General. Regardless of whether the Ethics Office has operational independence, the Tribunal cannot see how a final decision on the rights of staff members under a United Nations policy, taken by a staff member of the United Nations Secretariat, cannot be attributable to the Organization.ConclusionWith respect, this Tribunal agrees with the conclusion of Judge Faherty, set out in her dissenting opinion in Wasserstrom. Despite this view, as a first instance tribunal, the Dispute Tribunal is bound by the precedent of the Appeals Tribunal. The Tribunal has not been convinced by the submissions of the Applicants that their cases are distinguishable from Wasserstrom. The Tribunal finds that, given the current state of the jurisprudence, it has no option but to accept that in accordance with the Appeals Tribunal judgments in Wasserstrom 2014-UNAT-457 and Nartey 2015-UNAT-544, the matters contested in these applications are not administrative decisions subject to judicial review. ObservationUltimately, the questions raised in this judgment are ones of policy that should be decided by the Secretary-General, as the chief administrative officer of the Organization (art. 97 of the United Nations Charter), in consultation with Member States.The stated purpose of the Organization’s policy on retaliation is to ensure that the Organization functions in an open, transparent and fair manner, and to protect individuals who report misconduct. The Tribunal considers that this policy is too important to the integrity of the Organization to have the important issues raised in this Judgment remain unclear.If final decisions by the Ethics Office determining that retaliation has not occurred in a particular case are to remain immune from judicial review and scrutiny, the United Nations’ policy on retaliation should clearly state this. The Tribunal invites Member States and the Secretary-General to make their intentions clear in this regard in any amendments to ST/SGB/2005/21.