Judgment No. 3692
Decision
1. The decision of 30 January 2013 is set aside insofar as it dismissed the appeals against the complainant’s staff reports for the periods 2004-2005, 2006-2007 and 2008-2009. These reports are also cancelled.
2. The EPO shall proceed as indicated under 11 and 16.
3. The EPO shall pay the complainant 5,000 euros in moral damages.
4. All other claims are dismissed.
Summary
The complainant who, at the material time, was working as a patent examiner, objects to three of his staff reports, submits that he was subjected to harassment and challenges the rejection of his request for an independent examination of several of his dissenting opinions on patent applications.
Judgment keywords
Keywords
complaint allowed; decision quashed; performance report; harassment
Consideration 4
Extract:
The Tribunal [...] recalls that, according to Article 6(1)(b) of its Rules, a complainant’s arguments of fact and law must appear in the complaint itself. They may not consist of a mere reference to other documents, as is the case here. This manner of proceeding is contrary to the Rules and makes it impossible for the Tribunal and the other party clearly to understand the complainant’s pleas (see Judgment 3434, under 5).
Reference(s)
ILOAT reference: Article 6, paragraph 1(b), of the Rules
ILOAT Judgment(s): 3434
Keywords
submissions
Consideration 8
Extract:
[A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene in this area only if the decision was taken without authority, if it was based on an error of law or fact, a material fact was overlooked, or a plainly wrong conclusion was drawn from the facts, or if it was taken in breach of a rule of form or procedure, or if there was abuse of authority (see, for example, Judgment 3006, under 7). This limitation on the Tribunal’s power of review naturally applies to both the rating given in a staff report and the comments accompanying that rating.
Reference(s)
ILOAT Judgment(s): 3006
Keywords
performance report
Consideration 9
Extract:
[T]he Tribunal can only find that, although ultimately the complainant obtained the rating “good” for his productivity, the comment accompanying that rating detracted from it. In this respect the disputed staff report is open to the same criticism as the report censured by the Tribunal in Judgment 3268, concerning an almost identical case brought by another official of the EPO. This report is therefore unlawful [...].
Reference(s)
ILOAT Judgment(s): 3268
Keywords
performance report
Consideration 14
Extract:
[I]t is well settled by the Tribunal’s case law that if the rules of an international organisation require that an appraisal form must be signed not only by the direct supervisor of the staff member concerned but also by her or his second-level supervisor, this is designed to guarantee oversight, at least prima facie, of the objectivity of the report. The purpose of such a rule is to ensure that responsibilities are shared between these two authorities and that the staff member who is being appraised is shielded from a biased assessment by a supervisor, who should not be the only person issuing an opinion on the staff member’s skills and performance. It is therefore of the utmost importance that the competent second-level supervisor should take care to ascertain that the assessment submitted for her or his approval does not require modification (see Judgment 320, under 12, 13 and 17, or more recently Judgments 3171, under 22, and 3239, under 15). Of course, this check must be carried out with particular vigilance when the assessment occurs in a context where it is especially to be feared that the supervisor making it might lack objectivity and, a fortiori, when it takes place, as it did in the instant case, in a situation of overt antagonism (see Judgment 3171, under 23).
Reference(s)
ILOAT Judgment(s): 320, 3171, 3239
Keywords
organisation's duties; performance report; supervisor; performance evaluation
Consideration 18
Extract:
In Judgment 2552, under 3, the Tribunal stated that when an accusation of harassment is made, an international organisation must investigate the matter thoroughly and accord full due process and protection to the person accused. The organisation’s duty to a person who makes a claim of harassment requires that the claim be investigated both promptly and thoroughly, that the facts be determined objectively and in their overall context (see Judgment 2524), that the law be applied correctly, that due process be observed and that the person claiming, in good faith, to have been harassed not be stigmatised or victimised on that account (see Judgments 1376, under 19, 2642, under 8, and 3085, under 26).
Furthermore, the question as to whether harassment has occurred must be determined in the light of a thorough examination of all the objective circumstances surrounding the events complained of. An allegation of harassment must be borne out by specific acts, the burden of proof being on the person who pleads it, but there is no need to prove that the accused person acted with intent (see Judgments 2100, under 13, 2524, under 25, and 3233, under 6, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 1376, 2524, 2552, 2642, 3085
Keywords
burden of proof; harassment
Consideration 22
Extract:
[T]he unlawful nature of the disputed staff reports in question caused the complainant moral injury.
Keywords
moral injury
Consideration 19
Extract:
The complainant has not provided any substantive, cogent evidence proving that his line manager’s actions or statements belittled or humiliated him and that he therefore suffered harassment. The investigation conducted by the mediator did reveal the existence of considerable tension between the complainant and his line manager, which had impaired their professional relations and had ultimately created a strained working atmosphere. However, the facts established by the mediator, viewed in isolation or as a whole, do not lead the Tribunal to arrive at a different conclusion than that reached by him, as summarised in consideration 17 [...].
Keywords
evidence; harassment; performance evaluation
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