Judgment No. 4637
Decision
The complaint is dismissed.
Summary
The complainant challenges his staff report for 2014.
Judgment keywords
Keywords
performance report; rating; complaint dismissed
Consideration 4
Extract:
The complainant requests that oral proceedings be held. However, the Tribunal considers that the parties have presented sufficiently extensive and detailed submissions and documents to allow the Tribunal to be properly informed of their arguments and the relevant evidence. That application is therefore dismissed.
Keywords
oral proceedings
Consideration 5
Extract:
The complainant also seeks an order setting aside the Appraisals Committee’s opinion dated 9 May 2016. However, in itself, that opinion was merely a preparatory step in the process of reaching the final decision, impugned by the complainant, which did not itself cause injury. As the Tribunal noted in Judgment 4392, consideration 5, in respect of the EPO’s Appeals Committee, “[a] request to declare the opinion of the Appeals Committee null and void is irreceivable as the Appeals Committee has authority to make only recommendations, not decisions”. This is equally true of an opinion of the Appraisals Committee. Established precedent has it that such an advisory opinion does not in itself constitute a decision causing injury which may be impugned before the Tribunal (see, for example, Judgment 3171, consideration 13).
It follows that this claim is irreceivable.
Reference(s)
ILOAT Judgment(s): 3171, 4392
Keywords
receivability of the complaint; impugned decision; step in the procedure; report of the internal appeals body
Consideration 6
Extract:
The complainant’s claims for declaratory orders in which he seeks, first, recognition of the presumption (which does not exist in law) of bias and the disqualification of the reporting officers (referred to in point 6 of consideration 1 [...]) and, second, a declaration that any threats and blackmail by superiors in a reporting exercise are unacceptable (point 9 of consideration 1 [...]), are also irreceivable. It is settled case law that it is not for the Tribunal to issue such general declarations or declarations of law (see, for example, Judgments 4492, consideration 8, 4246, consideration 11, 4244, consideration 8, 4243, consideration 27, and 3876, consideration 2).
Reference(s)
ILOAT Judgment(s): 3876, 4243, 4244, 4246, 4492
Keywords
declaration of law
Consideration 7
Extract:
With regard to all the complainant’s other claims, the EPO submits that the complaint is irreceivable since the complainant no longer has a cause of action. According to it, while the complainant had, to a limited extent, a cause of action to challenge his 2014 staff report at the time when he filed his complaint, that cause of action lapsed when he retired on the last day of the month in which he reached the age of 65 years, as provided for in Article 54(1)(a) of the Service Regulations. In the EPO’s view, since the complainant is retired and has stopped work permanently, with no chance of being reinstated or resuming his career, he is no longer eligible for any career progression, whether this be through step advancements, bonuses or promotions as provided for in Chapter 2 of Title III of the Service Regulations, which deals with professional development. The EPO therefore considers that he has no cause of action to request that the report in question be set aside.
However, the Tribunal observes that a staff member has, at the very least, a moral interest in challenging a report appraising her or his performance. Thus, contrary to the EPO’s submissions, the fact that the complainant has retired since the report was drawn up does not, in itself, deprive him of a cause of action. The EPO’s objection to receivability must therefore be dismissed.
Keywords
cause of action; performance report; rating; former official
Consideration 12
Extract:
The complainant [...] submits that the objection procedure before the Appraisals Committee set out in Circular No. 366 does not include the same safeguards as the internal appeal procedure before the Appeals Committee. However, the complainant does not put forward any arguments showing the objection procedure to be flawed. That the procedure before the Appraisals Committee is a written procedure, unless otherwise decided, does not breach his right to be heard. The Tribunal points out that respect for the adversarial principle and the right to be heard requires that the official concerned be afforded the opportunity to comment on all relevant issues relating to the contested decision (see Judgments 4408, consideration 4, and 2598, consideration 6), but there is no general principle requiring her or him to be given an opportunity to present oral submissions (see Judgment 4398, consideration 4). Furthermore, the complainant had the opportunity to submit his observations at several points during the conciliation procedure and in the objections he submitted to the Appraisals Committee.
Reference(s)
ILOAT Judgment(s): 2598, 4398, 4408
Keywords
adversarial proceedings; rating; right to be heard
Consideration 17
Extract:
As regards the complainant’s suspicions of bias and prejudice on the part of the reporting officers and the chairwoman of the Appraisals Committee, under the Tribunal’s settled case law, the complainant bears the burden of proving such allegations. They must be supported by evidence of sufficient quality and weight to persuade the Tribunal; mere suspicion is clearly not enough (see, for example, Judgments 4543, consideration 8, 4382, consideration 11, and 3380, consideration 9).
Reference(s)
ILOAT Judgment(s): 3380, 4382, 4543
Keywords
burden of proof; bias
Consideration 19
Extract:
[T]he complainant’s claim for compensation for the serious moral injury he allegedly suffered will not be granted. The Tribunal recalls that, with regard to damages, the complainant bears the burden of proof and she or he must provide evidence of the injury suffered, of the alleged unlawful act adversely affecting her or him, and of the causal link between the unlawful act and the injury (for example, Judgments 4158, consideration 7, 4157, consideration 9, and 4156, considerations 5 and 6). In no event has evidence been provided of an unlawful act in the present case.
Reference(s)
ILOAT Judgment(s): 4156, 4157, 4158
Keywords
injury; moral injury
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