ATUMA & former employees v. Unilever

Date filed

12 April 2018

Keywords

Countries of harm

Congo, The Democratic Republic of the

Current status

No resolution

Sector

Agriculture & Food

NCP

NCP The Netherlands

Allegations

On 12 April 2018, a group of former workers of Unilever-Marsavco in the Democratic Republic of the Congo (DRC) filed a complaint with the Dutch NCP and UK NCP. On 26 April 2016, the Dutch NCP accepted the complaint for further consideration. The Dutch NCP will lead review of the case, working in coordination with the UK NCP.

The complaint by ATUMA (Association des Ex-Travailleurs Unilever Marsavco/PHC au Congo) alleges that in 2001, Unilever-Marsavco unjustifiably dismissed 802 employees and then failed to provide them a complete legal severance package, including full final salary and bonus as well as allowances for housing, transportation, food, and dependents, and other benefits. In 2002, 686 of the workers raised a complaint with the Congolese General Inspector for Labour to recover their unpaid severance packages. The complaint was brought to the attention of Congolese authorities at various levels (Judiciary, ministries, and the Office of the President of the Republic). Since the early 2000s, ATUMA asserts that several judicial and administrative rulings have supported the workers’ claim for compensation.

According to ATUMA, in order to settle the dispute, Unilever PLC has made several final transfers of tens of millions of dollars to Unilever-Marsavco over the past decade for the compensation of the group of former workers. ATUMA asserts that Unilever has failed to monitor the financial transactions to ensure the monies are actually paid to workers. As a result, none have been, possibly due to misappropriation through corruption related to the Rawji family. The money owed to workers is estimated by the DRC Labour Inspectorate and courts to total more than $45 million USD.

ATUMA’s complaint asserts that Unilever has violated several provisions of the OECD Guidelines, local laws in the DRC, and its own labour agreement and social charter, in connection with this situation. ATUMA calls for Unilever to investigate the situation and pay compensation to workers again, this time ensuring payments actually reach those to whom they are due. ATUMA calls for the CEO of Unilever to directly engage in the NCP negotiation, as ATUMA asserts he has done so in other disputes with former employees in other countries, to help the parties achieve a fair outcome.

Relevant OECD Guidelines

Outcome

After receiving the complaint, the Dutch NCP engaged in dialogue with both parties. On 26 April 2020, more than a year after the complaint’s filing, the NCP accepted the complaint for good offices. According to its initial assessment, the NCP will assess if and to what extent Unilever has responsibility regarding the dismissal process and possible unsatisfactory outcomes for workers concerned when Marsavco was still fully owned by Unilever. The NCP will also assess whether Unilever retains since the transfer in 2002 a supply chain responsibility that requires Unilever to encourage Marsavco to act with due diligence and corporate responsibility over the dispute. The assessment noted that, to date, Marsavco and Unilever have a business relationship.

On 7 May 2024, the Dutch NCP published its final statement. The NCP recounted that the good offices stage started in April 2020 and ended in September 2023. The parties had drafted a terms of reference (ToR) for the dialogue and there was an agreement in principle on the ToR in April 2021; however, the ToR was never signed due to several complications during the good offices phase. Among other things, it was agreed that a neutral evaluation of legal documents about the dispute and legal procedures in the DRC would be carried out by an independent expert in Congolese labour law, as the parties had differing views on the interpretation of these documents and proceedings. Mediation took place, but was suspended because the assignment for the legal expert needed to be agreed upon first. The costs of the legal expert exceeded the NCP’s budget, and neither party could substantially contribute to these costs. Ultimately, the parties were unable to come to an agreement on the issues.

In its final statement, the NCP made several determinations on the basis of the 2011 OECD Guidelines:

-The legalistic approach by Unilever of the NCP specific instance process is contrary to the spirit of the OECD Guidelines, which specifically ask from companies that they look beyond what the law requires;
– Good faith engagement in the NCP procedure means: … “genuinely engaging in the procedures with a view to finding a solution to the issues raised in accordance with the Guidelines.”;
– Looking back on the entire NCP process, the NCP sees a pattern of hurdles created by Unilever which cannot be considered as engaging in good faith in the NCP procedure as described in the Guidelines 2011.

The NCP also concluded on the basis of the 2000 Guidelines:

“it cannot establish if and to what extent there may have been a breach of the Guidelines 2000 by Marsavco as the fully owned daughter company of Unilever at the time of the dismissals. This also means that the NCP cannot establish if and to what extent there may have been by extension a breach of the Guidelines 2000 by Unilever at the time of the dismissals;
it cannot establish if and to which extent there may have been a breach of the Guidelines 2000 by Unilever in its responsibility to encourage Marsavco as a business partner to apply, where practicable, principles of corporate conduct compatible with the Guidelines after the transfer in 2002.”

The NCP recommended that Unilever:

– evaluates and where necessary updates its policies and practices on responsible disengagement to reflect the strengthened expectations of the Guidelines 2023 as well as related documents of the OECD Multi-Stakeholder Initiatives and Responsible Business Conduct (oecd.org);
– evaluates and where necessary updates its policies and practices on good faith engagement in the NCP procedure to reflect the strengthened expectations of the Guidelines 2023.

The NCP will publicly follow-up on its statement in one year.