Judgment No. 3965
1. The decision of 13 October 2009 and the impugned decision of 14 February 2012 are set aside.
2. The EPO shall pay the complainant 20,000 euros in moral damages.
3. The EPO shall pay the complainant 8,000 euros in costs.
4. All other claims are dismissed.
The complainant contends that the EPO did not properly address or investigate his claim of harassment.
The present complaint, like the underlying internal appeal, challenges the Ombudsmanís procedure in a discrete case arising from its own particular factual circumstances and raises issues which are not central to the complainantís second and third complaints. The Tribunal therefore dismisses the application for joinder.
The EPO admits that the Ombudsman has never prepared the report required by Article 11 of the Circular. In fact, the Tribunal notes that the Ombudsman has never properly executed his mandate, either by providing reasons for not complying with the deadlines set forth in the Circular, or by preparing a report and recommendations for the President. The Ombudsmanís comments, prepared upon the insistence of the Administration more than three years following the assignment of the case to him by the President, do not correspond either in form or in substance to what is required under Circular No. 286 for a report. The EPOís assumption that it was for the complainant to be proactive in pursuing the procedure with the Ombudsman, and to have contacted him again or made the Organisation aware that the procedure was not running smoothly, is incorrect. Although the complainant had a duty to collaborate in good faith with the Ombudsman, it is primarily the latterís duty to discharge the mandate assigned to him under Article 11 of the Circular. In turn, it was the duty of the President, who assigned the mandate to the Ombudsman, to monitor its execution. There was failure on both counts.
The Presidentís decision, communicated by the letter of 13 October 2009, was based on the Ombudsmanís comments, which did not comply with Article 11 of Circular No. 286, and the decision itself did not correspond to what Article 12 of the Circular required. Most importantly, the decision of 13 October 2009 did not clearly reject the complainantís harassment complaint or determine any other course of action on it. The complainant was therefore not only deprived of his right to have his complaint dealt with in accordance with the applicable rules, but was also misled as to the possibilities of challenging a decision. Accordingly, the decision of 13 October 2009 must be set aside. As this decision was ambiguous and misleading, the filing of the internal appeal on 19 April 2010 comes within the scope of the exceptions that the Tribunal has established for accepting a late internal appeal (see, for example, Judgments 1466, consideration 5, 2722, consideration 3, and 3406, consideration 13). To the extent that the IACís majority opinion and the impugned decision of the President were based on the argument that the appeal was irreceivable, they are tainted with an error of law and the impugned decision of 14 February 2012 will therefore be set aside.
ILOAT Judgment(s): 1466, 2722, 3406
internal appeal; time limit; exception; time bar