Judgment No. 4047
1. The impugned decision of 21 March 2016 is set aside.
2. The matter is remitted to the EPO to enable the charges against the complainant to be considered afresh by a differently constituted Disciplinary Committee and the President of the Office to make a new decision.
3. The EPO shall pay the complainant moral damages in the sum of 20,000 euros.
4. The EPO shall pay the complainant costs in the sum of 7,000 euros.
The complainant challenges the decision to impose on her with immediate effect the disciplinary measure of dismissal for serious misconduct.
complaint allowed; decision quashed; case sent back to organisation; termination of employment; serious misconduct
Overall, the case law of the Tribunal is clear and consistent. It was recently referred to in Judgment 3863, consideration 8 (see, also, Judgment 3882, consideration 14, as another recent example), in which the Tribunal said:
“[A]ccording to the well-settled case law of the Tribunal, the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14). It is equally well settled that the ‘Tribunal will not engage in a determination as to whether the burden of proof has been met, instead, the Tribunal will review the evidence to determine whether a finding of guilt beyond a reasonable doubt could properly have been made by the primary trier of fact’ (see Judgment 2699, consideration 9).”
It is legally irrelevant, for the purposes of the Tribunal’s judicial determination of the complaint, that, as the EPO points out in the reply, the same formulation is used in the English common law to establish the standard of proof in criminal proceedings.
The test [in question] is to be applied by the decision-maker who has to decide whether there has been misconduct and the appropriate sanction. Usually that is the executive head of an organisation or her or his delegate. However it is also a test to be applied by bodies such as a disciplinary committee, though whether it does in any given case will ultimately depend on the role such a body has under the organisation’s rules. Under Article 102 of the Service Regulations for permanent employees of the Office, the Disciplinary Committee is obliged to deliver a reasoned opinion on thedisciplinary measure appropriate to the facts complained of and transmit the opinion to, in this case, the President. This could only be done if the Disciplinary Committee concluded that the staff member had, on the facts, engaged in misconduct warranting a disciplinary measure. Plainly enough, the Disciplinary Committee must be satisfied that the evidence establishes beyond reasonable doubt that the misconduct occurred. There would be no utility in the Disciplinary Committee applying some other standard before reporting to the President.[...]
In some circumstances, it may be that if one of a number of sets of charges was assessed applying the appropriate standard of proof and a conclusion of guilt reached, the imposition of a particular disciplinary sanction might be justified by reference to the proof of that set of charges beyond a reasonable doubt notwithstanding the failure to apply the appropriate standard in relation to the other sets of charges. [...]
ILOAT Judgment(s): 2699, 3649, 3863, 3882
burden of proof; disciplinary procedure; standard of proof
No order for reinstatement should be made because if the charges are proved beyond reasonable doubt, a new decision may be made to dismiss the complainant. Depending on what findings are made about the complainant’s conduct by applying the appropriate standard of proof, dismissal might remain a proportionate response, and if it is, no issue of material damages would arise.
reinstatement; material damages
The complainant sought an oral hearing. The Tribunal is satisfied the complaint can be resolved fairly and reasonably on the written material provided by the parties.
In the President’s impugned decision [...], no reference is made to the application of the appropriate standard of proof. In all the circumstances, it cannot be assumed that it was applied. In the result, the impugned decision to dismiss the complainant should be set aside because in assessing the complainant’s guilt it is not demonstrated that the appropriate standard of proof was applied, namely proof beyond reasonable doubt. The matter should be remitted to the EPO to enable a Disciplinary Committee, differently constituted, to consider the matter under Article 102 of the Service Regulations and for the President to make a fresh decision.
case sent back to organisation