Judgment No. 4051
Decision
1. The impugned decision dated 15 November 2016 is set aside, as is the original decision of 23 June 2016 to dismiss the complainant.
2. The EPO shall reinstate the complainant in accordance with consideration 14 of this judgment.
3. The EPO shall pay the complainant moral damages in the amount of 10,000 euros.
4. The EPO shall also pay him 7,000 euros in costs.
5. All other claims in the fourth complaint are dismissed, as is the third complaint.
Summary
The complainant challenges the decision to dismiss him for misconduct.
Judgment keywords
Keywords
complaint allowed; decision quashed; termination of employment; misconduct
Consideration 2
Extract:
As the two complaints are based on the same facts and address the same substantial issues stemming from the [...] decision to dismiss the complainant from service, the Tribunal finds it convenient to join them.
Keywords
joinder
Consideration 2
Extract:
The complainant has requested oral hearings. The Tribunal is satisfied that the complaints can be fairly and appropriately determined by reference to the written material filed by the parties. Accordingly, no order is made for an oral hearing.
Keywords
oral proceedings
Consideration 3
Extract:
The Tribunal repeats its case law that arguments of fact and law must appear in the complaint itself, supplemented in the rejoinder, if necessary and “that those arguments may not consist of a mere reference to other documents, as that would be contrary to the [Tribunal’s] Rules and would render it difficult for the other party to clearly understand the complainant’s pleas [and that] such references are acceptable only as illustrations” (see, for example, Judgment 3434, under 5).
Reference(s)
ILOAT Judgment(s): 3434
Keywords
complaint; formal requirements
Consideration 4
Extract:
The third complaint is [...] irreceivable as it does not challenge a final decision, within the meaning of Article VII, paragraph 1, of the Tribunal’s Statute, which requires that all internal means of redress be exhausted prior to filing a complaint in the Tribunal.
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
Keywords
failure to exhaust internal remedies
Consideration 5
Extract:
Consistent precedent has it that disciplinary decisions are within the discretionary authority of the executive head of an international organization and are subject to only limited review. In Judgment 3297, consideration 8, the Tribunal stated that it will interfere only if the decision is tainted by a procedural or substantive flaw. Additionally, the Tribunal will not interfere with the fact findings of an investigative body unless there is manifest error (see, for example, Judgment 3872, consideration 3). In disciplinary matters, the burden of proof lies with the employer, which must demonstrate that the complainant did indeed engage in the conduct of which he was accused (see, for example, Judgments 3297, consideration 8, and 3875, consideration 8).
Reference(s)
ILOAT Judgment(s): 3297, 3872, 3875
Keywords
burden of proof; proportionality; disciplinary measure; judicial review; discretion
Consideration 11
Extract:
The President’s decision to request the complainant to undergo a further medical examination to determine whether his medical condition may have guided his behaviour and affected his accountability for his actions accorded with the exercise of the EPO’s duty of care towards the complainant, as was recently explained by the Tribunal in Judgment 3972.
Reference(s)
ILOAT Judgment(s): 3972
Keywords
illness; disciplinary measure; duty of care
Considerations 9-10
Extract:
The complainant’s evidence is that although he was represented by a lawyer at the time, the Chairman’s letter of 23 February 2015 was sent directly to him and he received it around 5:45 pm. He did not open it because of his health condition, but passed it on to his lawyer the same afternoon. His lawyer was not at his office and only took notice of the contents of the letter the following day. On 2 March his lawyer requested that all documents should be served on him (the lawyer), referring to medical certificates stating that the Office should refrain from contacting the complainant directly to avoid worsening his medical condition. [...]
The Tribunal accepts the EPO’s submission that in the absence of a specific power of attorney from the complainant the Disciplinary Committee cannot be faulted for having notified the complainant directly in that first communication to him. [...]
Keywords
power of attorney
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