THE EPO's management has been ignoring the recommendations of the disciplinary committees when it fired two representatives and downgraded another. This is widely known by now and even European politicians have spoken against this injustice. Last week the following open letter was circulated and now is a good time to show it publicly to everyone. We highlight some bits of interest (in yellow) for those who want to read through the text quickly.
OPEN LETTER TO ALL STAFF
Dysfunctions in the EPO’s disciplinary procedures
Dear Colleagues,
The independence of the Disciplinary Committee (DC) and its members is an essential prerequisite for a just and fair trial, not only for the individuals facing grave accusations, but also for confidence in the EPO as a whole. It is neither the CSC’s role nor its intention to interfere with this independence, let alone issue instructions to the DC. However it is the CSC’s duty to comment on and if necessary propose actions that favour the smooth running of statutory bodies, all in the best interests of staff. It is in this context and taking into consideration that six disciplinary sanctions have been taken against staff representatives consecutively over a very short period of time, the CSC believes it is urgent to “Pause, Reflect, (Re)connect”, that is to learn from past events.
As highlighted in a letter dated 12 November 2014, the EPO no longer has a properly functioning disciplinary procedure, a claim that was reiterated in an open letter to the AC Chairman, dated 4 March 2015.
I - Nominations to the DC: loyalty vs. independence
A DC is a statutory body comprising two members appointed by the President and two by the CSC, drawn at random from a pool of possible candidates.
The President appoints the chairpersons of the DC. Until 2013 all DC chairs were chosen from the DG3 Boards of Appeal, whose independence from the President is guaranteed by the EPC. He stopped this long-standing tradition in 20141.
Following the introduction of the new career system, the EPO President decided that the CSC may no longer nominate members of DG3 to DC procedures involving staff in job groups 2 and 3. Since it remains a requirement under Article 98(4) ServRegs that DC members shall not be of a lower job group than that of the accused, this does not leave the CSC any other option than to select their nominees from the few willing managers and directors employed in those groups2. _______ 1 CSC members have legally challenged this change. Internal appeals are pending. 2 The President has also repeatedly interfered with CSC nominations: for example, the nominations of the CSC for 2015 and 2016 were disregarded (see the nominations retained by the President versus the CSC 2015 nomination letter).
In stark contrast, the President almost exclusively nominates Directors and Principal Directors as members for all job groups whereas he should in principle nominate non-managers for procedures in job groups 4 to 6 to more faithfully reflect the staff demography. As a result, the members appointed by the President drawn from the list of potential nominees for a particular case will always be managers, except if the defendant is in job group 6.
Besides being an explicit requirement written in the job description of all EPO staff members, loyalty (obedience) is to be expected of today’s management. The present Administration has demonstrated on several occasions that this obligation applies in particular for managers and those taking actions that are perceived to be disloyal should expect to be punished severely.
Further, since senior managers nominated by the President are often employed under some form of renewable contract (where continuation may depend on Presidential approval), staff may doubt that they can act fully independently in performing their function as DC members.
The Office has endorsed a structure that the European Court of Human Rights found objectionable3: the convening officer (President) appoints the court (is their superior officer) and acts also as the confirming officer (President). Such a DC framework no longer meets the requirements that the ECHR consider necessary for a fair procedure4.
II - DC recommendations systematically ignored
After Aurélien Pétiaud, Michael Lund and Els Hardon (1), now it is the turn for Malika Weaver, Ion Brumme and again Els Hardon (2) to be severely sanctioned for activities carried out in their capacity as staff representatives, union officials and/or CSC appointees.
In his Communiqué No.2, the President insists that the DC recommendations were all “unanimous”, “justifying high sanctions, including dismissal”, which in our opinion (mis)leads the uninformed reader to believe that he is merely following the DC recommendations. This is not the reality - in most cases the DC concluded that many of the serious allegations could not be founded in facts.
The harsh reality is that in all six (!) cases, the President has effectively disregarded the unanimous DC recommendation and decided upon sanctions (up to immediate dismissal with reduction of pension) that are far more severe than the recommendations of the DC. Indeed, in cases where the DC rejected as unsupported allegations made against staff representatives, the President _______ 3 see case Findlay vs United Kingdom or a summary why such a model is unfair 4 http://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf
nevertheless seems to have ignored this and based his judgement and decision on such allegations being proven.
The CSC is well aware that the DC is not responsible for the President’s final decision itself. We assume the DC will have attempted to weigh diligently all the available facts and then assess the consequences of their recommendation. In some cases they may even have sought to find prudent compromises to reduce sanctions in case of doubt. Unfortunately, not only has the President chosen to cherry-pick the harshest of the recommendations, he has in fact gone much further than any of them, applying blatantly disproportionate sanctions with dramatic consequences for the individuals themselves.
III - Six Staff Representatives sanctioned in short lapse of time
Because of the quite extraordinary aggressive attitude presently shown by senior management and in fear of further reprisals, the concerned individuals do not wish to publish more specific, personal information related to their disciplinary procedures. We can, however, provide you with the following insights into their individual predicaments:
Not only is Mr Brumme fired from the EPO with immediate effect, but the normal daily life of his newly established family will be disrupted and put under enormous strain in the future.
If any staff member had been found guilty of very serious charges in a fair trial, such sanctions and their consequences might be understandable. However, this is certainly not the case here: indeed, it appears that it is not the original charges that Mr Brumme has been accused of that are the basis for the sanction. Rather, it is the fact that he denied them publicly, i.e. defended himself against any wrongdoings, that was apparently considered to severely breach “the confidentiality obligation” of the procedure.
Firstly, it should be remembered that confidentiality is primarily meant to protect the accused staff member - who is presumed innocent until proven guilty – and not to be used to render him guilty for an alleged procedural error. We also note that this charge was only added during the course of the procedure. Last but not least, it should be remembered that as an elected staff representative, Mr Brumme has a mandate from staff to act on their behalf. Hence his informing staff on any issues in relation with his mandate and personal integrity is not only legal, it is a moral and professional obligation for all Staff Representatives towards their constituency.
It is a sad outcome that today, at 41 years of age, Mr Brumme faces being an outcast. How can ruining a staff member’s life be seen as a “justified and proportionate” sanction, particularly for a staff representative simply defending himself in “public” (actually EPO internally) from an attack on both his functions and his integrity?
- Similarly, Ms Hardon sees her pension, a deferred remuneration accumulated after many years of active work in the EPO, arbitrarily reduced by 20%. This is a very rare sanction that is normally reserved for extreme cases where individuals have been convicted of the most serious crimes and felonies like corruption or gross misconduct. How can such a sanction be “justified and proportionate” in her case?
IV - No particular protection for staff and union representatives in the EPO
In most European countries, and certainly in France and Germany, staff and union representatives enjoy particular protection and external instances5 other than their employer are in place to decide what sanctions are appropriate to be applied against them. The employer cannot simply publicly declare that the cases “relate to personal failures of the employees”, impose heavy sanctions and de facto disregard “the fact that the employees involved are staff representatives who should enjoy a higher level of protection and freedom of expression, having in mind their particular duties.”6
V - The work of the DC has changed in the new world of “political trials”
The EPO “culture” has changed to such an extent that the disciplinary procedures seems to have mutated into a fully conscious and demonstrative policy of the President to apply the most ruthless and excessive sanctions, presumably with the intention of having an oppressive, intimidating effect on all staff. In this context, such disciplinary procedures can be seen as “political trials”.
In this sense, the CSC makes the following observations:
_______ 5 Inspection du Travail in France and Betriebsrat / Arbeitsgericht in Germany 6 €«Les salariés investis de fonctions représentatives par voie de désignation ou d’élection bénéficient, en cette qualité, d’un statut protecteur.€», Article 48 in the €«rapport Badinter€» on “THE ESSENTIAL PRINCIPLES OF LABOR LAW”, January 2016
- The President seems to be instrumentalising the DC: the recommendations are represented in a biased manner to give the impression that there is unanimous support for the sanctions taken. At the same time, the statutory confidentiality clause is abused to prevent any third party from knowing the findings of the DC and thereby removing transparency from the procedure.
- Arbitrariness and abuse of power: even though the DC may strive to write a fair, balanced and coherent recommendation reflecting the established facts and taking into consideration any doubts or uncertainties, only parts of a recommendation are being cherry-picked or misrepresented, presumably to arrive at a desired outcome. However, in the absence of any internal review and without any effective recourse to fair and timely legal remedies, the President can take any decision he likes with virtually total impunity.
- The DC is rapidly becoming an integral part of political “show trials”, especially in cases against staff / union representatives: in all (6 out of 6!) cases, the accusations appear to be politically motivated, as were the expected outcome of the procedure. The DC exhibits traits of a reincarnation of the 17th Century Star Chamber7.
The above dysfunctions are equally valid for the Internal Appeal Committee8 where no members are at present appointed by the CSC. Both bodies are equally hazardous for not only their nominated members, but also individual staff members involved and Staff at large.
VI - Lack of judicial review in a reasonable time frame
In view of the flaws in the disciplinary procedures, a genuine independent judicial review is all the more essential. However, the ILO Administrative Tribunal (ILOAT) chokes under a workload mainly caused by the EPO and it does not foresee any accelerated procedure for considering cases with sanctions as heavy as dismissal, let alone issuing any form of injunction. Instead, the cases have to wait their turn, which currently will result in delays of several years before judgement. Should the ILOAT persist in refusing to fast track such cases, then the national courts in the member states should declare themselves exceptionally competent, lift the immunity of the Office and review themselves the decisions of the President.
The Central Staff Committee _______ 7 https://en.wikipedia.org/wiki/Star_Chamber 8 Please note the Board of Auditors’ review of the Internal Appeals procedure in CA/20/15 & CA/21/15: according to these studies, the President does not follow recommendations of his own Appeals Committee and (almost) systematically rules against staff. The ILO-AT is ill-equipped to act as a trial court (Judgment No. 3291). "There is no social peace without access to Justice". (for more details please refer to the CSC report on the EPO justice)