Judgment No. 3699
1. The impugned decision is quashed and the contested transfer decision is declared unlawful.
2. The EPO shall pay the complainant 10,000 euros in moral damages.
3. It shall also pay him 2,000 euros in costs.
The complainant challenges the decision to transfer him to a Senior Advisor post.
complaint allowed; decision quashed; transfer
It is to no avail that the EPO attempts to show that the complainant’s duties were of grade A6 level. First, it invites the Tribunal to interpret the job description appended to the Service Regulations liberally as, in the defendant’s view, it would not be possible for the Office to perform its functions properly “if it were obliged to apply the generic post descriptions strictly to the letter, without regard to the particular circumstances of the case in question”. Next, it poses the question, tailored to this particular case, of “whether, in the circumstances of the present case, the complainant’s new role was reasonably commensurate with his grade”, and not that of whether it corresponded exactly to grade A6 duties. Lastly, it asserts that “the strategic responsibilities inherent in the new post of Senior Advisor for planning and preparation of the unitary patent, though involving no management responsibilities, were nevertheless at the same level as those of a grade A6 post”. These inconsistent arguments, submitted by the defendant to convince the Tribunal that the complainant’s new duties were at grade A6 level, poorly disguise the fact that this was not at all the case. The defendant itself acknowledges in its submissions that “the complainant’s new role did not entail all of the characteristics of a grade A6 post according to the generic description provided in the Service Regulations”. The Tribunal concludes that the complainant’s new duties were not commensurate with grade A6. The complainant did not run a prominent organisational unit covering several specialised fields; he was neither a Principal Director nor a Chairman of a Board of Appeal; he could not take decisions in particularly difficult or important cases. Hence, the contested transfer decision must, as the complainant requests, be ruled unlawful.
post classification; reassignment
According to the complainant, his transfer was wrongful and was in fact a hidden sanction. He adds that the post to which he was assigned was “fictitious”. The defendant submits that the complainant was transferred in the EPO’s interests in light of his continuing opposition to the abolition of the Audit Committee.
Although the complainant believes that his transfer was a hidden sanction, he does not bring any evidence in support of this allegation. His submissions merely contain an unsubstantiated assertion that his transfer to the contested post of Senior Advisor was a hidden sanction for his refusal to apply for that post. Furthermore, in his rejoinder he writes that he has “never disputed the right of the President of the Office to order a transfer in the Organisation’s interests, of which he is the judge”. There is no doubt here as to the Organisation’s interests: as the defendant argues persuasively, “it was no longer in the Office’s interest for the complainant to remain as Head of Internal Audit given that his continuing opposition to the abolition of the Audit Committee demonstrated a marked divergence of opinion regarding the conditions in which Internal Audit was to operate and its position”. Moreover, the evidence shows that, contrary to what the complainant asserts, the post to which he was assigned involved duties that were real – irrespective of their level, which will be addressed below – and the post cannot therefore be regarded as “fictitious”.
hidden disciplinary measure