Judgment No. 4391
Decision
1. The impugned decision dated 29 June 2018 is set aside.
2. The EPO shall pay the complainant material damages in the terms stated in consideration 12 of this judgment.
3. The EPO shall also pay the complainant costs in the amount of 1,000 euros.
4. All other claims are dismissed.
Summary
The complainant challenges the decision not to promote him in the 2008 promotion exercise.
Judgment keywords
Keywords
complaint allowed; promotion
Consideration 4
Extract:
The Tribunal’s role in cases which challenge a non-promotion decision is a limited one. Staff members of an international organization do not have an automatic right to promotion. It is established that an organization has a wide discretion in deciding whether to promote a staff member. The Tribunal will only interfere if the decision was taken without authority; if it was based on an error of law or fact, some material fact was overlooked, or a plainly wrong conclusion was drawn from the facts; if it was taken in breach of a rule of form or of procedure; or if there was an abuse of authority. Additionally, the Tribunal has stated that since the selection of candidates for promotion is necessarily based on merit and requires a high degree of judgement on the part of those involved in the process, a person who challenges it must demonstrate a serious defect in the decision. The breach of a procedural rule is a flaw on the basis of which a decision not to promote a staff member may be set aside (see Judgment 4066, under 3).
Reference(s)
Jugement(s) TAOIT: 4066
Keywords
promotion; discretion
Consideration 10
Extract:
Given the inaccuracy in the reasons given for not promoting the complainant, which also means that the discretion was exercised in an arbitrary manner, the […] impugned decision is flawed and will be set aside (see, for example, Judgment 3647, under 14).
Reference(s)
Jugement(s) TAOIT: 3647
Keywords
decision quashed; discretion; mistake of fact; motivation; motivation of final decision
Consideration 11
Extract:
Every permanent employee in the Munich Office whom the Promotion Board recommended in December 2012 for promotion from grade A3 to A4 was promoted, except the complainant. The case law states that in most cases involving allegations of unequal treatment, the critical question is whether there is a relevant difference warranting the different treatment involved and that even where there is a relevant difference, different treatment may breach the principle of equality if the different treatment is not appropriate and adapted to that difference (see, for example, Judgment 4022, under 6). The EPO submits that the relevant difference between the complainant’s situation and that of his colleagues who were promoted was his uncertain return to work. The factual inaccuracy of this statement, and the absence of any other justification, leads the Tribunal to conclude that there was no relevant difference that warranted the different treatment involved, and that the decision not to promote the complainant was taken in breach of the principle of equal treatment or equality.
Reference(s)
Jugement(s) TAOIT: 4022
Keywords
equal treatment; promotion
Consideration 12
Extract:
Inasmuch as no evidence was provided that the Promotion Board had recommended his promotion retroactive to 2008, and keeping in mind that it is not within the Tribunal’s purview to order the promotion of an official (see Judgments 4066, consideration 11, and 4040, consideration 2), the complainant is entitled to material damages for the loss of a valuable opportunity to be promoted. The EPO will be ordered to pay the complainant a lump-sum amount equivalent to the cumulative amount of the additional salaries and all other benefits that he would have been entitled to receive through his monthly payslips, had he been promoted in the 2012 exercise, until the date of his retirement.
Reference(s)
Jugement(s) TAOIT: 4040, 4066
Keywords
competence of tribunal; promotion; loss of opportunity; material damages
Consideration 13
Extract:
The complainant’s contention that the decision not to promote him was a hidden disciplinary sanction against him because he was a staff representative appointed by the Central Staff Committee as a member of the General Advisory Committee, to discourage employees from being staff representatives, is unfounded. The complainant provides no evidence, as against conjecture, to prove a nexus between the non-promotion decision and this allegation or from which it may be inferred that the decision was retaliatory (see, for example, Judgment 2907, under 23) or was actuated by prejudice.
Reference(s)
Jugement(s) TAOIT: 2907
Keywords
promotion; hidden disciplinary measure; staff representative; retaliation
Consideration 14
Extract:
The Tribunal has stated, in Judgment 3966, under 11, for example, that an award of punitive damages can be made only in exceptional circumstances, for instance where an organisation’s conduct has been in gross breach of its obligation to act in good faith.
Reference(s)
Jugement(s) TAOIT: 3966
Keywords
punitive damages
Consideration 14
Extract:
The complainant’s request for moral damages for breach of duty of care will [...] be rejected, as will his request for moral damages for the length of the procedures deliberately delayed by the EPO and the harm caused to his health and dignity. While it is true that this procedure, which spanned almost six years for reasons mostly attributable to the EPO, was unreasonably long, the Tribunal considers that this excessively long period did not in itself cause serious injury to the complainant (see Judgment 4222, under 18).
Reference(s)
Jugement(s) TAOIT: 4222
Keywords
moral injury; delay in internal procedure
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