Judgment No. 4427
1. The impugned decision dated 11 July 2013 and the initial decision of 10 October 2008 to transfer the complainant are set aside.
2. The EPO shall pay the complainant 50,000 Swiss francs in moral damages.
3. The EPO shall also pay the complainant costs in the amount of 8,000 Swiss francs.
4. All other claims are dismissed.
The complainant challenges the decision to maintain his transfer to a patent examiner post.
complaint allowed; decision quashed; transfer
The complainant signifies in the complaint form that he wants a hearing under Article 12, paragraph 1, of the Tribunal’s Rules. The request is rejected as the Tribunal is sufficiently informed of all aspects of the case to consider it fully on the material which the parties provide.
[C]onsistent precedent has it that an executive head of an international organization has wide discretionary powers to manage the affairs of the organization pursuant to the policy directives and its rules and that such decisions are consequently subject to only limited review. The Tribunal will ascertain whether a transfer decision is taken in accordance with the relevant rules on competence, form or procedure; rests upon a mistake of fact or law or whether it amounts to abuse of authority. The Tribunal will not rule on the appropriateness of the decision as it will not substitute the organization’s view with its own (see, for example, Judgment 4084, under 8).
Jugement(s) TAOIT: 4084
transfer; judicial review; discretion
The rationale for fully and adequately motivating the final decision on an internal appeal was relevantly stated as follows, in consideration 9 of Judgment 3727:
“It is not sufficient to explain why, in the opinion of the executive head of the organisation, the internal appeal body approached an issue in a way that was flawed. It is also necessary to explain the basis on which the conclusion actually reached by the executive head of the organisation was arrived at if it was different to the conclusion of the internal appeal body [...] In the present case, it was necessary for the Secretary General not simply to identify perceived flaws in the reasoning or procedures of the Commission said to undermine its conclusion that the post had evolved but, in addition, to explain his reasons for the conclusion that the post had been “cut”. This leads to consideration of whether, in all the circumstances, the impugned decision sufficiently explained this latter conclusion.”
Jugement(s) TAOIT: 3727
duty to substantiate decision; final decision; motivation; report of the internal appeals body
The complainant’s contention that the decision to transfer him to the examiner’s position violated the EPO’s duty of care and his dignity is well founded given the indignity and humiliation he suffered by virtue of his transfer from the administrative post that he held for some 16 years to what was, in effect, an entry level examiner’s position. The Tribunal has consistently stated, in Judgment 4240, consideration 16, for example, that an organization must carefully take into account the interests and dignity of staff members when effecting a transfer to which the staff member concerned is opposed. It should have been obvious to the EPO that the complainant’s responsibilities in the new post were significantly different from those responsibilities which were attached to his previous post and were not objectively comparable with his previous responsibilities. Moreover, there is no evidence to show that the complainant’s legitimate objections to the proposed transfer were properly addressed by the Administration before he was transferred.
Jugement(s) TAOIT: 4240
respect for dignity; transfer; duty of care
[T]he complainant’s contention that the transfer decision was tainted by misuse of authority is unfounded. In consideration 10 of Judgment 4146, for example, the Tribunal recalled that the principle of good faith and the concomitant duty of care require international organisations to treat their staff with due consideration in order to avoid causing them undue injury. It also observed that in order for there to be misuse of authority, it must be established that the decision rested on considerations extraneous to the organisation’s interests and that the staff member alleging abuse of authority bears the burden of establishing the improper purpose for which the authority was exercised. Misuse of authority cannot be presumed. The complainant has not provided evidence, against conjecture, that shows that his transfer was based on improper purpose.
Jugement(s) TAOIT: 4146
evidence; burden of proof; organisation's duties; misuse of authority; duty of care; abuse of power
Given the unlawfulness of the decision to transfer the complainant to the examiner’s post in October 2008 and his evidence of the injury (the humiliation and loss of status) which the transfer decision caused him, he is entitled to moral damages for which he will be awarded 50,000 Swiss francs.
moral injury; transfer