Judgment No. 4893
Decision
The complaint is dismissed.
Summary
The complainant challenges his staff report for 2008-2009.
Judgment keywords
Keywords
performance report; rating; complaint dismissed
Consideration 3
Extract:
One of the arguments advanced by the EPO is that this complaint is irreceivable as it is moot particularly given that the complainant has long since ceased being a member of its staff. It might also be thought that, when he ceased being a member of staff, he no longer had a cause of action. There is, in the Tribunal’s case law, some support for the view that a former staff member, who has retired since a contested staff report was drawn up, has “a moral interest in challenging a report appraising her or his performance” and has a cause of action which endures beyond retirement (see Judgment 4637, consideration 7).”
Reference(s)
ILOAT Judgment(s): 4637
Keywords
cause of action; performance report; rating; former official
Considerations 4-5
Extract:
It is convenient to focus on the relief the complainant seeks. [...] His primary relief, as articulated in the rejoinder, is that the Tribunal “take a final decision on the merits”. The Tribunal takes this to include a reference to a claim made in the complaint form under the heading “[r]elief claimed”, that “the text [under] productivity in [the complainant’s] staff report [for] 2008-2009 should be amended by replacing the words [‘very good’] by [‘outstanding’], and the box marking should be amended correspondingly”. […]
However, it has long been acknowledged that a request such as this would involve an impermissible determination by the Tribunal of what the appraisal should be (see, recently, Judgment 4786, consideration 1). The Tribunal noted in Judgment 4786 that it can, if the report was the product of one of the legal flaws listed in Judgment 4564, consideration 3, set aside the contested staff report at the same time as the impugned decision and remit the matter to the Organisation for review. However, the complainant now eschews any desire to have the matter remitted. Accordingly, what remains is the impermissible request to the Tribunal to undertake the evaluation itself. This claim must be rejected.
Reference(s)
ILOAT Judgment(s): 4564, 4786
Keywords
performance report; rating; judicial review; performance evaluation; role of the tribunal
Consideration 8
Extract:
More recent case law of the Tribunal makes it clear that moral damages are not awarded when not substantiated. Moral damages arise from moral injury. It is necessary for a complainant to establish 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 (see Judgments 4637, consideration 19, 4158, consideration 7, 4157, consideration 9, and 4156, considerations 5 and 6). In the present case, the complainant does not demonstrate with persuasive evidence that any of the events for which he expressly or impliedly seeks moral damages caused him moral injury, let alone demonstrates a causal link between the alleged unlawful act adversely affecting him and the damage suffered. Accordingly, his various claims for moral damages must be rejected.
Reference(s)
ILOAT Judgment(s): 4156, 4157, 4158, 4637
Keywords
moral injury; burden of proof
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