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Judgment No. 4491

Decision

1. The impugned decision dated 29 January 2018 is set aside, as is the original decision of 7 September 2017 to dismiss the complainant.
2. The EPO shall reinstate the complainant from the date of delivery of this judgment in public.
3. The EPO shall pay the complainant moral damages in the amount of 30,000 euros.
4. The EPO shall also pay the complainant 8,000 euros in costs.
5. All other claims are dismissed.

Summary

The complainant challenges the decision to dismiss her with immediate effect for serious misconduct.

Judgment keywords

Keywords

complaint allowed; reinstatement; family allowance; misconduct; summary dismissal

Consideration 10

Extract:

The majority [of the Disciplinary Committee] expressed its finding about the conduct of the complainant. It recommended the sanction of downgrading. It observed that it was the duty of an EPO employee to disclose all facts that could possibly be relevant “for taking a correct decision about benefits allocated to [an] employee” and a failure to do so was misconduct. But this was not the misconduct charged. What was alleged against the complainant was that she had misrepresented her true status and had engaged in fraud. Fraud entails an intention to obtain financial advantage by deception (see, for example, Judgments 4238, consideration 5, and 3402, consideration 9).

Reference(s)

Jugement(s) TAOIT: 3402, 4238

Keywords

misconduct; disciplinary procedure; fraud; disciplinary charges

Consideration 19

Extract:

The case law of the Tribunal in a situation such as the present is clear. A staff member accused of wrongdoing is presumed to be innocent and is to be given the benefit of the doubt (see, for example, Judgment 2913, consideration 9). The burden of proof of allegations of misconduct falls on the organisation and it must be proved beyond reasonable doubt (see, for example, Judgment 4364, consideration 10). In reviewing a decision to sanction a staff member for misconduct, the Tribunal will not ordinarily engage in the determination of whether the burden of proof has been met but rather will assess whether a finding of guilt beyond reasonable doubt could properly have been made (see, for example, Judgment 4362, considerations 7 to 10).

Reference(s)

Jugement(s) TAOIT: 2913, 4362, 4364

Keywords

presumption of innocence; benefit of doubt; disciplinary measure; standard of proof; beyond reasonable doubt; role of the tribunal

Consideration 20

Extract:

[T]here has been a clear reluctance, or indeed refusal, to accept what the complainant said was true. Obviously, a person who is guilty of fraud may well often lie and contrive false facts to avoid the consequences of their fraudulent conduct. Equally obviously, an organisation must be alive to this possibility when investigating and dealing with conduct of a member of staff believed or suspected of being fraudulent. But in the present case, proof of the hypothesis that the complainant’s narrative and explanation were false and she acted fraudulently involved an unfair and distorted analysis of the facts. The Tribunal is satisfied a finding of guilt beyond reasonable doubt of the charge alleged could not properly have been made.

Keywords

evidence; disciplinary procedure; fraud; beyond reasonable doubt

Consideration 22

Extract:

The principal relief sought by the complainant is an order for reinstatement. No specific submission is made by the EPO in its pleas that, in the event that the complainant demonstrates her dismissal was unlawful, she nonetheless should not be reinstated. It is, in the circumstances, the appropriate relief (see Judgment 4043, consideration 25). The original decision to dismiss her and the impugned decision should be set aside. The complainant will be reinstated as from the date of public delivery of this judgment. The Tribunal has approached the determination of the date of reinstatement, in the unusual circumstances of this case, having regard to the point made by the Disciplinary Committee, namely that the complainant should have been more forthcoming about her personal situation.

Reference(s)

Jugement(s) TAOIT: 4043

Keywords

effective date; reinstatement

Consideration 23

Extract:

[There was] manifest moral damage, involving considerable personal distress, occasioned to the complainant by her being investigated, charged with fraudulent misconduct, found to have engaged in that misconduct and ultimately dismissed. Those moral damages are assessed in the sum of 30,000 euros.

Keywords

moral injury; misconduct; disciplinary procedure

Consideration 24

Extract:

The complainant sought costs for the disciplinary proceedings and the proceedings before the President, that is, the request for review. Even if it is open to the Tribunal to make such orders, there would be no rational basis for treating such a request differently to a request for costs in the internal appeal. Such orders are only made in extraordinary circumstances (see Judgments 4392, consideration 13, and 4399, consideration 13) which do not exist in the present case.

Reference(s)

Jugement(s) TAOIT: 4392, 4399

Keywords

costs for internal appeal procedure

Consideration 24

Extract:

[The complainant] seeks an order lifting the ban concerning access to EPO’s premises. Access will be a necessary consequence of the order of reinstatement.

Keywords

reinstatement; house ban



 
Dernière mise à jour: 05.05.2022 ^ haut