Judgment No. 3964
Decision
1. The EPO shall pay the complainant 4,000 euros as moral damages.
2. The EPO shall pay the complainant 1,500 euros as costs.
3. All other claims are dismissed.
Summary
The complainant contests the decision to impose on him the disciplinary measure of dismissal for serious misconduct.
Judgment keywords
Keywords
complaint allowed; termination of employment; disciplinary measure; disciplinary procedure; fraud
Consideration 9
Extract:
The overarching legal principles in a case such as the present have recently been discussed by the Tribunal in Judgment 3862, consideration 20. The Tribunal observed: “the executive head of an international organisation is not bound to follow the recommendation of any internal appeal body nor bound to adopt the reasoning of that body. However an executive head who departs from a recommendation of such a body must state the reasons for disregarding it and must motivate the decision actually reached. In addition, according 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).
Reference(s)
Jugement(s) TAOIT: 3649, 3862
Keywords
duty to substantiate decision; burden of proof; misconduct; disciplinary measure; final decision; standard of proof; standard of proof in disciplinary procedure
Consideration 9
Extract:
It is [...] 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 reasonable doubt could properly have been made by the primary trier of fact’ (see Judgment 2699, consideration 9).
Reference(s)
Jugement(s) TAOIT: 2699
Keywords
misconduct; disciplinary procedure; standard of proof
Consideration 10
Extract:
In cases of found misconduct based on allegations of fraud resulting in dismissal, the Tribunal has adopted the approach, in order to determine whether a finding of guilt beyond a reasonable doubt could have been made, that it “will not require absolute proof, which is almost impossible to provide on such a matter [involving allegations of fraud or similar conduct]. It will dismiss the complaint if there is a set of precise and concurring presumptions of the complainant’s guilt” (Judgment 3297, consideration 8, and, also more recently, Judgment 3757, consideration 6).
Reference(s)
Jugement(s) TAOIT: 3297, 3757
Keywords
termination of employment; misconduct; fraud; standard of proof
Consideration 13
Extract:
[I]t is not for the Tribunal to assume the role of fact finder and determine, itself, whether the case is made out that the complainant was guilty of the misconduct alleged. Rather 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”, in this case the President.
Keywords
evidence; misconduct; disciplinary procedure; judicial review; standard of proof; investigation
Consideration 18
Extract:
The complainant’s argument is that the decision of the President was based on evidence “not available to the complainant”. However this plea conflates evidence with the record of evidence. It is not suggested by the complainant in his pleas that he or his legal representatives did not attend the oral hearing. Accordingly, he was aware of the evidence and it was thus available to him even if, as a matter of fact, he had not been furnished with a transcript. This plea is unfounded and is rejected.
Keywords
evidence; due process
Consideration 20
Extract:
Prior to the oral hearing before the Disciplinary Committee, it was revealed that potential witnesses from the IU had been provided with a copy of the complainant’s rejoinder to the Disciplinary Committee. [...] [The EPO] does not seek to explain how the information came into the hands of the potential IU witnesses. It can reasonably be inferred that it happened as a result of the conduct of a member of staff of the EPO and for which the Organisation is responsible. But as noted by the Tribunal in Judgment 3284, consideration 28, how it happened is not of any great significance. What is significant is that the complainant’s confidentiality was not preserved. The complainant is entitled to moral damages assessed in the sum of 4,000 euros as the breach does not appear to be so egregious as the individuals to whom the material was sent were themselves bound to keep it confidential.
Reference(s)
Jugement(s) TAOIT: 3284
Keywords
moral injury; confidential evidence
| 
