EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

03.25.16

“The Decision of the President [Battistelli] to Overstep the Recommendation of the Disciplinary Committee is Arbitrary and Shows Bad Faith.”

Posted in Europe, Patents at 12:24 pm by Dr. Roy Schestowitz

It also highlights the fact that EPO management lied to all staff about its union-busting activities

Els Hardon

Summary: A letter sent from Elizabeth Hardon to Benoît Battistelli shortly after her unjust dismissal, which is part of a wider-spread campaign across EPO branches to crush the unions and replace them with pseudo (management-leaning) unions

THIS morning we mentioned that the EPO ‘generously’ gave back to a staff representative her pension for which she worked and she’s totally entitled/eligible for (as per the rules). She did not get her job back (she ought to), but here is what happened behind the scenes in order to make Battistelli relent a little and then attempt to recover. There’s no generosity at all from Battistelli, just an effort (however minuscule) to salvage a morsel of credibility after making a mockery of justice itself. What do scientists and lawyers (people who work for the EPO) think of this business school graduate and his epic (mis)handling of science and law?

Here is the letter sent to Battistelli:

TO Benoît Battistelli, President of the EPO
FROM Elizabeth Hardon, Staff Representative (SUEPO, MSC)
RE Dismissal with 20% reduction of pension
DATE 28 January 2016

1. With a letter dated 15.01.2016 I was informed of the decision to dismiss me with immediate effect and to reduce my pension by 20% (ANNEX 1).

2. The above letter indicated that the legal means of redress against the decision is a request for review in accordance with Article 109 ServRegs.

3. Therefore I herewith file a request for a review of the above decision pursuant to Art. 109 ServRegs. The request is filed within 3 months of the decision and hence is receivable.

4. I file this request under protest for the following reasons.

5. According to Article 10(1) ServRegs “A request for review shall be compulsory prior to lodging an internal appeal …” Decisions following a disciplinary procedure are not subject to review by an internal appeal (Art. 110(2)(a) ServRegs) and should therefore logically not be subject to the review procedure.

6. Moreover, the review procedure is a pre-litigation dispute resolution mechanism whose claimed purpose is to come to an early, informal resolution of conflicts. This may be possible before a disciplinary procedure, but is highly unlikely after a disciplinary procedure.

7. I note in the passing that even at the best of times, the review procedure seems ineffective. The external auditors of the EPO reported that only about 4% of the requests reviewed by them were successful (CA/21/15)

8. The investigations against me were initiated by Ms Bergot, PD HR and right hand of the President. The decision after the disciplinary procedure has been taken by the President himself. Under the circumstances it seems highly unlikely that anything that I can submit will make any difference.

9. The requirement to go through a review procedure is thus procedurally incorrect and merely serves to delay my access to the Tribunal.

10. Given that there seems no chance of an impartial and objective review of the disputed issues, I will not expand on the many other formal errors made in my procedure. I merely refer to the letter of my lawyer dated 02.12.2015 (ANNEX 2).


11. The accusations against me were set out in a document sent to me on 17.11.2015, signed (on every page) by Ms Bergot, and are as follows:

(a) Acting as an accomplice in a campaign to disseminate information and opinions detrimental to the EPO, its proper functioning and its reputation as well as the reputation of its employees (based on investigation C-61b),

(b) threatening colleagues at a meeting on 10.12.2104, and at a subsequent meeting, asserting in threatening terns that those volunteering for the posts of members of the Internal Appeals Committee (IAC) would suffer serious harm (based on investigation C- 071/2015), and

(c) disregarding (i) the express instruction of my employer and (ii) my concurrent obligation under Art. 4 of Circulars No. 341 and No. 342 to keep the investigation C-011/2015 confidential.

12. Concerning the first allegation (acting as accomplice to the suspended DG3 member) it is surprising that the alleged conspiracy was only “discovered” almost a year after the investigations that led to the suspension of the DG3 member had been closed and at a moment when the initial accusations in my case (a purported harassment campaign against a staff representation colleague in The Hague) were not being confirmed by the external investigators of Control Risks.

13. The allegations in the investigation C-61b were sent to me on 09.11.2015 (at 17.44h). The summary of the findings relating to the investigation was sent to me for comment on 16.11.2015. The deadline for comments was 23.11.2015. A disciplinary procedure based on those findings was initiated on 17.11.2015, i.e. the day after I received the “preliminary” findings and well before the deadline set for my comments. Ms Bergot apparently received the “summary of findings” even earlier because the copy in my disciplinary file is dated 13.11.2015. In other words: Ms Bergot was informed of the findings barely four (!) days after I was informed of the accusations and well before I was able to comment.

14. The timing of events gives the strong impression that the additional accusations were patched together with haste in order to make up for the failure of Control Risks to confirm the earlier accusations.

15. Concerning the accusations themselves, the Enlarged Board of Appeal found in the reasoning for its decision of 17.09.2015 the allegations against the DG3 member unsubstantiated to the extent that neither the accused nor the Board could understand what exactly he was accused of (points 7.10-7.12 of the reasoning; ANNEX 3). If the “evidence” provided in the case of the DG3 member was identical or similar to mine, I understand the position of the Enlarged Board of Appeal.

16. I furthermore strongly deny “having acted as an accomplice in a campaign to disseminate information and opinions detrimental to the EPO, its proper functioning and its reputation as well as the reputation of its employees”.

17. Concerning the second allegation (threatening colleagues at a meeting on 10.12.2104) I first note that the complaint was not lodged by any of the persons allegedly affected but by Ms Bergot (PD HR), in a wider investigation targeting the staff representation and


accusing its members of harassment. The investigations were started at a time when the administration, represented by Ms Bergot, and the staff representation found themselves increasingly in conflict. This in itself raises questions about the credibility and good faith of the accusations pursued by Ms Bergot.

18. The meeting of 10.12.2014 was a meeting of the Munich Staff Committee. Policy discussions within the Committee are confidential. The investigation launched by Ms Bergot obliged the members of the Staff Committee to breach that confidentiality. This is inappropriate and in my opinion constitutes misconduct.

19. ILO-AT judgment 3106 states that the principle of freedom of association “ … precludes interference by an organisation in the affairs of its staff union or the organs of its staff union (see Judgment 2100, under 15). A staff union must be free to conduct its own affairs, to regulate its own activities and, also, to regulate the conduct of its members in relation to those affairs and activities. The same principle obviously applies to other staff associations, like the Staff Committee.

20. In other words: the investigation into the activities of the Staff Committee and my subsequent punishment on the basis of my alleged behaviour in a meeting of the Staff Committee are in breach of fundamental principles of freedom of association.

21. The relevant discussion within the Staff Committee was triggered by a letter of the President inviting individual members to “volunteer” as a staff representative in the Internal Appeals Committee (IAC). At the relevant time two of the previous members had been suspended and/or were facing disciplinary proceedings. With that invitation the President was trying reconstitute the IAC while avoiding any discussion with the Staff Committee concerning the problems in the functioning of the IAC. The invitation was in breach of the Service Regulations that do not foresee “volunteers” selected by the President but only nominations by the Staff Committee (Art. 36(2)(a) ServRegs).

22. The invitation of the President was controversially discussed within the Munich Staff Committee. However, the tone and contents of the discussions never went beyond what could fairly be expected from a lively policy discussion in an international environment. I emphatically deny having threatened or intimidated anybody.

23. The external investigators held that the exact wording of my allegedly threatening statement could not be determined. The wording relied on by the disciplinary committee is based on the assertions of only one (!) of the seven witnesses. The selective presentation of “facts” and the many procedural short-cuts taken by the disciplinary committee raise serious doubts about its impartiality and objectivity.

24. In that context I note that in an earlier video-conference discussing Patent Administration matter, a Principal Director who was subsequently a member of my disciplinary committee in the present case shouted at me “SUEPO is a cancer, a CANCER!” thereby making it impossible for me to speak. I left the room in distress.

25. Art. 5 ServRegs, interpreted by the administration as requiring from employees of the EPO “the highest standard … of integrity” throughout their employment in the Office, should apply a fortiori for members of the disciplinary committee who are called to judge upon their colleagues. The above mentioned aggression was not considered to disqualify the Principal Director concerned from participating in my disciplinary


committee and acting as rapporteur. In contrast, my alleged “threat”, that did not have any visible impact on the person(s) concerned, is considered to merit a severe disciplinary measure. The lack of consistency and double standard being applied here is obvious.

26. Concerning the third allegation (breach of confidentiality) I maintain that in a well-run public service organisation transparency would be the norm, and confidentiality only requested in circumstances that justify such a request. The desire of the administration c.q. Ms Bergot to cover up its wrongdoing in the form of unjustified and spurious investigations and disciplinary actions against the elected staff representation is not a valid reason for demanding confidentiality. Moreover, staff has a legitimate interest in being informed about such attacks, in particular when the administration simultaneously makes public claims to the effect that it is seeking a social dialogue.

27. The Disciplinary Committee found me guilty of the majority of the charges. It recommended the penalty of dismissal. The Disciplinary Committee explicitly stated that in view of my many years of positive contribution to the EPO there would, however, be no justification for a reduction of my pensionable rights and that the standard conditions of dismissal should be applied. The President nevertheless decided on a 20% reduction of my pension. The decision of the President to overstep the recommendation of the Disciplinary Committee is arbitrary and shows bad faith.

28. The recent investigations and the disciplinary procedure against me are not my first. I have already been investigated and downgraded for alleged harassment despite a unanimous recommendation of the disciplinary committee in my favour. At the time the alleged offense was a single sentence expressing a common opinion (belief) within the Munich staff representation that was contained in a confidential e-mail sent to a small group of people (17 persons, including myself) via a suepo.org address.

29. The repeated investigations against me (now 3 in total), the fabricated accusations and the total disproportionality of the sanctions are indicative of a process of institutional harassment against me. The permanent, unexplained and seemingly unjustified, house-ban1 further illustrates the apparent desire of the administration to inflict maximum damage upon me and to isolate me from staff.

REQUESTS

30. I request the above indicated decision as well as the earlier decision to down-grade me to be quashed. I also request full reimbursement of my legal costs as well as moral and/or exemplary damages for the prejudice suffered.

______________
1 «I remind you that you remain excluded from entering the Office premises at any time », Yann Chabod, letter dated 25.01.16

The part about “a process of institutional harassment against me” is reminiscent of older letters.

How can justice be expected to happen in secret when the EPO management shamelessly lies to the staff about the process?

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

A Single Comment

  1. katkatkat said,

    March 26, 2016 at 1:26 am

    Gravatar

    In order to save himself and his squalid team for the future glory of the Unitary Patent, Mr Battistelli now steps back on the excess punishment which in a sadistic move he imposed upon the staff representatives: Els gets back her 20% of pension (please remember that no long ago, against the unanimous opinion of the disciplinary commmittee, she was downgraded, so her pension is less any way); Jon will probably be reinstated “in an act of grace” because he has a 5 children. Do not make yourself any illusions: this is not justice but a move to save his a…
    The squalid representatives at the AC will believe they have regained control of the situation and tamed the President. He will continue as before exerting his mad authority and destroying the good working atmosphere and the reputation of what used to be a model International Organisation. The best employees will retire earlier or look for another job elsewhere. What remains is a bunch of servants at the management level and a mass of humiliated examiners fighting against each other for step advancements and bonuses. Attorneys and their associations have been silenced, bloggers neutralised, press has been bought. In a few week nobody will care any more about the EPO.

What Else is New


  1. The Fall of the UPC - Part IX: Campinos Opens His Mouth One Week Later (and It's That Hilarious Delusion Again)

    Team Campinos said nothing whatsoever about the decision of the FCC until one week later, whereupon Campinos leveraged some words from Christine Lambrecht to mislead everybody in the EPO's official "news" section



  2. Pretending EPO Corruption Stopped Under António Campinos When It is in Fact a Lot Worse in Several Respects/Aspects (Than It Was Under Benoît Battistelli)

    Germany's eagerness to keep Europe's central patent office in Munich (and to a lesser degree in Berlin) means that politicians in the capital and in Bavaria turn a blind eye to abuses, corruption and even serious crimes; this won't help Germany's image in the long run



  3. IRC Proceedings: Saturday, March 28, 2020

    IRC logs for Saturday, March 28, 2020



  4. Links 28/3/2020: Wine 5.5 Released, EasyPup 2.2.14, WordPress 5.4 RC5 and End of Truthdig

    Links for the day



  5. IRC Proceedings: Friday, March 27, 2020

    IRC logs for Friday, March 27, 2020



  6. The Fall of the UPC - Part VIII: Team UPC Celebrates Death, Not Life

    Team UPC plays psychological games now; it is trying to twist or spin its defeat as good news and something to be almost celebrated; it is really as illogical (and pathetic) as that sounds



  7. Links 27/3/2020: GNU/Linux Versus COVID-19 and Release of GNU Guile 3.0.2

    Links for the day



  8. When Your 'Business' is Just 'Patent Portfolio'

    Hoarding loads of patents may seem impressive, but eating them to survive is impossible if not impermissible



  9. LOT Network is a One-Man (Millionaire's) Operation and Why This Should Alarm You

    The ugly story of Open Invention Network (OIN) and LOT; today we take a closer look at LOT and highlight a pattern of 'cross-pollination' (people in both OIN and LOT, even at the same time)



  10. Faking Production With Fake Patents on Software

    The EPO with its illegal guidelines (in violation of the EPC) can carry on churning out millions of fake patents that European courts would only waste time on and small companies be blackmailed with (they cannot afford legal battles)



  11. With the Unified Patent Court (UPC) Out of the Way Focus Will Return to EPO Corruption

    Expect the European Patent Office (EPO) to receive more negative attention now that the ’cause’ of UPC is lost and there’s no point pretending things are rosy



  12. IRC Proceedings: Thursday, March 26, 2020

    IRC logs for Thursday, March 26, 2020



  13. Links 27/3/2020: qBittorrent 4.2.2, Krita 4.2.9, pfSense 2.4, Bodhi Linux 5

    Links for the day



  14. IRC Proceedings: Wednesday, March 25, 2020

    IRC logs for Wednesday, March 25, 2020



  15. Still Work in Progress: Getting Those 2,851 Pages of Police Report About Arrest for Pedophilia in Home of Bill Gates

    It’s extremely difficult to get those police records, which were requested exactly one day before the media started attacking Richard Stallman (associating him with pedophiles based on a deliberate distortion)



  16. Links 26/3/2020: Plasma Bigscreen, New Kubernetes, Fedora's New Identity and Bodhi Linux 5.1.0

    Links for the day



  17. Guest Article: Window Managers, Github and Software Disobedience

    "Walking away from monopolies is the essence of freedom"



  18. Links 25/3/2020: LLVM 10.0.0 and UCS 4.4-4 Released, WordPress 5.4 RC4

    Links for the day



  19. 'Team UPC' Last Week

    The looks on Team UPC's faces 5 days ago (before and after the 9:30AM announcement)



  20. The Fall of the UPC - Part VII: Lies and Revisionism About the Reasons for the UPC's Ultimate Demise (to Leave the Door Open for More Failed Attempts)

    The media was lying in a hurry, in a coordinated effort to distort the meaning of the FCC's decision or belittle the impact of this decision; Techrights will carefully watch and respond to these lies



  21. IRC Proceedings: Tuesday, March 24, 2020

    IRC logs for Tuesday, March 24, 2020



  22. Linux Foundation Became Anti-Linux, Run by Microsoft People to Serve Microsoft's Agenda

    Microsoft is taking over the bodies of healthy projects, infecting the hosts in order for them to become slaves of the proprietary parasite; there's still no (known) cure, but we're familiar with the symptoms



  23. Microsoft Continues to Attack and Steal From the Open Source/Free Software Communities

    Microsoft cannot be trusted and there's no "new Microsoft," as another fairly new story serves to show



  24. Targeted Attack Leveraging FSF Servers

    Targeted by a determined and persist perpetrator, I've received over 20,000 E-mails. And the weapon of choice was the FSF's infrastructure, remotely misused against yours truly.



  25. If We Weren't Silencing Founders, Critics and People We Just Don't Like

    "In the long run, history is rarely very kind to tyrants, especially the ones who did little more than lie to people and demand things that served no real purpose."



  26. The Fall of the UPC - Part VI: Drowning in Material

    We're starting to see few good reports on the subject of UPC being rejected by the constitutional court of Germany; we also have a rapidly-growing 'buffer' of rather blatant examples of disinformation (which we'll tackle as best we can)



  27. FFII: EU Software Patent Court Stopped by Constitutional Court, Patent Industry Will Try Again

    The third attempt to validate software patents in Europe via a central patent court (UPC) has been stopped by the German Constitutional Court. The Unified Patent Court (UPC) would have given the keys of the kingdoms to the patent industry, and the last word over software patentability. FFII predict that the patent industry will continue to push for an UPC v2.0.



  28. Links 24/3/2020: Alpine 3.11.5, MythTV 31.0 and Tails 4.4.1

    Links for the day



  29. IRC Proceedings: Monday, March 23, 2020

    IRC logs for Monday, March 23, 2020



  30. Links 23/3/2020: Linux 5.6 RC7, Audacious 4.0, and Git 2.26 Released

    Links for the day


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts