Judgment No. 4114
The complaint is dismissed.
The complainant challenges the decision to downgrade him for serious misconduct.
downgrading; serious misconduct; complaint dismissed
The EPO seeks the joinder of this and the ninth complaint in order that one judgment could be rendered. The complainant opposes joinder. The EPO argues, correctly, that the fifth complaint is irreceivable. The Tribunal will explain why this is so shortly. The two complaints do not involve the same or similar questions of fact or law, ordinarily the touchstone for joinder. That is because the factual issues actually raised in this complaint are extremely narrow in compass (and concern receivability only) and, as it turns out, so are the legal issues extremely narrow in compass (whether the complaint is receivable). Joinder and the rendering of one judgment facilitates consistent fact-finding and legal analysis in cases where there are the same or similar facts and the same or similar legal issues. As will be seen in due course, no such commonality of fact-finding and legal analysis arises in this case.
The fifth complaint is irreceivable because the complainant had not, at the time of its filing, exhausted internal means of redress. The complainant argues that he had, because Article 110(2)(c) of the Service Regulations says, in relation to certain specified decisions, they are excluded from the internal appeal procedure, including “decisions taken after consultation of the Disciplinary Committee”. However the Tribunal has held in Judgment 3888, consideration 9, that Article 110 of the Service Regulations does not absolve a complainant from the need to seek a review to satisfy the Tribunal’s jurisdictional threshold that a complainant must have exhausted internal means of redress. The complaint must be dismissed as irreceivable.
Jugement(s) TAOIT: 3888
receivability of the complaint; internal remedies exhausted
It is unnecessary to hold an oral hearing as requested by the complainant. The written material provided by the parties has been sufficient to enable the Tribunal to resolve this complaint without such a hearing.