Judgment No. 3962
1. The impugned decision of 15 May 2015 is set aside.
2. The matter is remitted to the EPO to undertake the evaluation provided for in Article 52 of the Service Regulations, as explained in considerations 14 and 15 of the judgment.
3. The EPO shall pay the complainant 30,000 euros as moral damages.
4. The EPO shall pay the complainant 8,000 euros as costs.
5. All other claims are dismissed.
The complainant challenges the decisions to downgrade her, reassign her to another position and place her on an additional period of probation.
downgrading; reassignment; disciplinary procedure
[T]he provisions of Article 13 [of the Service Regulations] were clear. A probationary period occurs in the three circumstances specified in the Article. None were the position the complainant was in at the time of, and as a result of, the decision of 7 January 2015 as implemented in early 2015 nor at the time of the impugned decision. Accordingly, the EPO was not entitled to place the complainant on probation and quite plainly was not entitled to say she could be dismissed under Article 13(4)(b). The decision to place the complainant on probation was unlawful.
The provision does not transmogrify incompetence into conduct in respect of which disciplinary action might be taken and a disciplinary measure imposed (see Judgment 918, consideration 11).
Organization rules reference: Article 13 of the Service Regulations
ILOAT Judgment(s): 918
patere legem; probation; unsatisfactory service
The legal question was whether an appropriate lower grade could be identified into which the complainant would be classified and ultimately the assignment of the complainant to a post corresponding to this new grade. That process plainly involved the identification of an appropriate post. Obviously the identification of the grade, the reclassification and the identification of a post and assignment to it would depend on a number of factors. They would include the skills and qualifications of the complainant notwithstanding that they did not then render the complainant competent to perform the work of an examiner at grade A3. Also relevant would be an assessment of the level of competency of the complainant which would inform the decision about the grade in which the complainant should be classified. The level of the competency would influence or even determine the extent to which the complainant was reduced in grade. Similar considerations would bear upon the identification of a post in the new grade to which the complainant could be assigned. The President did not undertake an exercise with this legal framework in focus even if, as a practical matter, some or perhaps even all these considerations were in play. This is a legal flaw in the impugned decision.
downgrading; disciplinary measure
Considerations 11 and 15
Article 52 of the Service Regulations dealt with incompetence. It provided: “(1) Subject to Article 23 of the Convention, a permanent employee who proves incompetent in the performance of his duties may be dismissed.
The appointing authority may, however, offer to classify the employee concerned in a lower grade and to assign him to a post corresponding to this new grade. [...]"
A third and related issue arising from the language of Article 52(1) is that once this assessment is undertaken by or on behalf of the President, an offer should have been made to the complainant identifying the new lower grade and the post to which she might be assigned. It was not. Reasonably clearly this step of making an offer is intended to ensure that a permanent employee proven to be incompetent in the position she or he then held, has the opportunity of discussing with the EPO what work she or he might do within the EPO into the future. In the ordinary course, one would expect that a decision to offer to classify the permanent employee in a lower grade and assign her or him to a new post would be significantly more attractive to the staff member concerned, found to be incompetent, than a decision to dismiss. Nonetheless important considerations may arise for the affected staff member including alterations to remuneration and likely career paths within the EPO. Indeed it is not possible to entirely discount, once an offer was made, negotiations or at least discussions taking place between the affected staff member and the EPO about what the EPO proposed. In a case such as the present where mental health issues were involved, some form of agreed medical assessment might also be appropriate to gauge competency given that the underlying aim of this process is to place the affected permanent employee in a position where she or he is competent and contributing to the overall work of the EPO.
Organization rules reference: Article 52 of the Service Regulations
downgrading; medical opinion; disciplinary measure
The Tribunal is not satisfied that material damages should be awarded. A basis for awarding them has not been established by the complainant. It is quite possible that a decision properly made would have had the same result, at least financially, for the complainant. It would simply be speculation to conclude that the result, financially, would have been different.