Tribunal Protects Confidentiality of Asian Development Bank Ombuds

The external administrative tribunal that reviews personnel decisions for the regional development bank ruled that the Ombudsperson cannot be compelled to testify.  The tribunal issued the decision in response to a grievance filed by a terminated employee who wanted to call the ADB Ombuds (at the time Nick Diehl) as a percipient witness.  The decision explicitly rejected the request because of the Ombuds' inherent confidentiality.

The findings state, in relevant part:

27. As set out in the facts, the Applicant requested an oral hearing so that, amongst other things, her statement to the Ombudsperson in relation to the allegations of harassment could be made available. Under Article VIII of the Statute of the Tribunal it is for the Tribunal to take a decision in each case whether oral proceedings, including presentation and examination of witnesses, are warranted or not. It is not appropriate to call the Ombudsperson as a witness in light of the confidential function and AO 2.14 para. 3.9 which states that “the Ombudsperson cannot be compelled to provide information or be a witness in hearings … about concerns brought to the Ombudsperson’s attention in his/her capacity as Ombudsperson”. The Tribunal notes as well a similar provision AO 2.11 para. 5.5 on Prevention of Harassment. As the submissions by the parties provide a sufficient basis for consideration of the issues, the Tribunal considers that oral proceedings are not warranted. 

The decision is significant because so many employment grievances are resolved confidentially. The ADB tribunal's decision, however, is public. (Drilon, Asian Devt. Bank Trib. Decision 110 (May 6, 2017).)

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