Bonum Certa Men Certa

Better Late Than Never: ILO Subjects the EPO's Management to Some Belated Justice (Sans the Removal of Immunity, so Nobody is Being Held Accountable)

Video download link | md5sum 2df8a649d4e4f273063b25e62fde9ca7 ILO Smackdown Creative Commons Attribution-No Derivative Works 4.0



Summary: There's some good news from Geneva; the EPO is being served many rulings that reaffirm its negative stigma in spite of António Campinos wasting millions of Euros on lawyers who fight his own staff [1, 2]

TODAY is a pretty "crazy" day for us, so we cannot cover EPO affairs as much as we'd like*.



We've decided it's best to focus on Git and IRC, but meanwhile a lot is happening at the EPO. As noted by the staff union this morning, there's belated coverage here about "industrial action at the EPO" and some decent early comments like: "Well, according to Management, Quality is Quantity." Another person has said: "It is amazing that the tenant of the 10th floor has not yet attempted to restaure the preceding situation. The EPO is held hostage by a clique of people who behave like the worth employers of the 19th century. The tenant want to extend his contract! He was called in to restaure social peace but has not done one thing in this respect! A shame on the AC!"

The staff union has meanwhile translated the article into German [PDF] and French [PDF].

Similarly, the staff union produced German [PDF] and French [PDF] versions of the document discussed in the video above. As promised in the video (recorded about 2 hours earlier than this post), for the PDF-lazy we're producing an HTML equivalent:

24 February 2022 su22012cp – 0.2.1/5.1/5.2

EPO cases of the 133rd Session of the ILOAT: The most salient judgments



In its 133rd Session, the Tribunal ruled on 51 cases among which 12 EPO cases. For the second time after the judgments on the unlawful strike regulations, the Tribunal ruled in Judgment 4482 that an EPO reform, “Social Democracy“, breached the fundamental right to freedom of association. Judgments 4488, 4489 and 4490 sanctioned the EPO’s institutional harassment of a former Principal Director and awarded above 250.000€ of damages in total. Judgment 4491 ordered the reinstatement of a single mother with babies (at the material time) unlawfully charged with fraud by the Investigative Unit which made an unfair and distorted analysis of the facts. This paper provides more details.

GENERAL DECISION AND RIGHT TO FREEDOM OF ASSOCIATION

Judgment No. 4482

The right to freedom of association implies the right for staff associations to regulate their own affairs, including the election of staff representatives. The Tribunal quashed Article 6 of CA/D 2/14 introducing Article 35(5) ServRegs and Circular No.355.

At the outset, the Tribunal recalled that, if in principle, a general decision cannot be challenged by a staff member unless and until an individual decision is taken adversely affecting the staff member, an implementing decision is not required in cases where the general decision has an immediate and adverse effects on individual rights.

The Tribunal developed a two-part test for the receivability of a direct challenge against a general decision: (1) the existence of an individual right, (2) whether the decision has an immediate and adverse effect on this individual right.

On the existence of an individual right, the Tribunal recalled that the right to associate freely, which encompasses the right to strike has long been recognized by it for officials of international organizations and is protected under Article 30 ServRegs as a term of appointment for EPO staff, thus acknowledging it as an individual right. Of importance, the Tribunal equally based this recognition on various international instruments, including the 1998 ILO Declaration on Fundamental Principles and Rights at Work, the 1966 ICCPR and the 1966 ICESC.

On the immediate and adverse effect on the right to associate freely, the Tribunal recalled that international organizations must refrain from interfering in the affairs of staff




associations or unions, which have the right to manage their own affairs, including the right to freely elect their representatives, irrespective of whether or not the associations/unions are established or operate under the organization's staff regulations.

Consequently, the Tribunal ruled that the new regime was in violation of the right of staff to freely associate. The Tribunal quashed Article 6 of CA/D 2/14 which introduced Article 35(5) ServRegs and Circular No.355 without retroactive effect - an intrusion into the powers of the Administrative Council justified by the fundamental nature of the right protected. The Tribunal ordered that former Article 35(6) ServRegs applies mutatis mutandis to the future elections of staff representatives for the Staff Committees.

UNLAWFUL DECISION OF TRANSFER AND OPINION OF INTERNAL APPEAL BODY

Judgment No. 4488

Deference given to the decision of an internal appeal body on an unlawful transfer decision that did not respect the dignity of the staff member being assigned to a post that did not correspond to the same level of duties. The Tribunal set aside the impugned decision and awarded 35,000€ in moral damages.

In this case, the Complainant challenged the decision to transfer her to another post. Insofar as the favorable opinion from the Internal Appeals Committee (“IAC”) was not followed by the President in the final decision, the Complainant requested the Tribunal to set aside the said decision and to award her material damages for loss of income as well as moral damages.

The IAC applied the test under Judgment No. 2819, comparing the assigned duties in the newly created post with the general duties of an A6 post, and found that the level of duties assigned to the post where the Complainant was transferred did not correspond to the requirements for an A6 grade post. The IAC thus unanimously concluded that the transfer was unlawful and did not respect the Complainant’s dignity.

On the EPO’s decision not to follow the unanimous recommendation of the IAC, the Tribunal found the arguments contained in the impugned decision unconvincing as the EPO is bound by its own rules. In particular, the Tribunal recalled that the report by an internal body warrants considerable deference where (1) the report involves a balanced and thoughtful analysis of the issues raised in the internal appeal, and (2) its conclusions and recommendations are justified and rational.

For those reasons, the Tribunal ordered that the impugned decision be set aside, 35,000€ in moral damages and 1,000€ in costs.

ARBITRARINESS AND PERFORMANCE EVALUATION

Judgment No. 4489

Arbitrariness in the completion of the performance management report leading to moral injury. The Tribunal awarded moral damages to the Complainant.




In the present case, the Complainant challenged the amount of moral damages paid to her by the EPO for the decision not to finalize her two performance management reports for 2011 and part of 2012.

The Tribunal examined the approach of the Appeals Committee (“ApC”) in the present case. Notably, the Tribunal agreed with the ApC that the statutory requirements concerning management reports had not been met and that it existed a direct relationship between the Complainant’s performance management reports and the end of her contract. However, it diverged from the ApC’s reasoning, finding that the President’s refusal to sign the 2011 and 2012 reports was arbitrary.

On the relief sought, the Tribunal held that the Complainant was entitled to 10,000€ in moral damages for the failure to complete the performance reports and in addition to moral damages already paid by the EPO for the President’s arbitrary decision. Moreover, the Tribunal found that the 300€ recommended by the ApC for the length of the internal proceedings failed to compensate the moral injury suffered by the Complainant, recognizing that the delay of five years “would plainly have had a deleterious effect on the Complainant” and decided to award 3,000€ in moral damages.

However, regarding the claim for material damages, the Tribunal found it to be inadmissible as it had not been introduced during the internal proceedings.

ABOLITION OF POST AND CONSTRUCTIVE DISMISSAL

Judgment No. 4490

Assessment of material damages in the case of an unlawful decision not to renew a contract after the abolition of a post and constructive dismissal. The Tribunal assessed the loss of future income and awarded 200,000€ in material damages and 20,000€ in moral damages.

In this case, the Complainant challenged the amount of damages awarded for the unlawful decision not to renew her contract and to reinstate her in a lower-level post instead.

The Tribunal found that the material damages in cases of unlawful dismissal, where reinstatement is not ordered, are “the lost future income in the position with the organisation adjusted by an assessment of whether the staff member would have remained in that position and, if not, also adjusted by future income from other employment (see Judgment 4234, consideration 10). This assessment can also be approached compendiously by assessing the value of the lost opportunity to remain in employment (see, for example, Judgment 4305, consideration 14) (consideration 12).” The Tribunal further stated that the financial effect on the Complainant of the unlawful decision should be assessed by reference to the circumstances existing at the time the decision was made.

In the present case, the Tribunal considered that the Complainant’s unlawful dismissal occurred on the day of her resignation, which coincided with the date of expiry of her contract and the effective date of the abolition of her post (constructive dismissal). As such, the assessment of her damages for unlawful constructive dismissal is the same in substance as for an unlawful abolition of the post leading to an unlawful non-renewal.




Therefore, the Tribunal assessed the loss of future income. The Tribunal held that there was a real prospect that the Complainant’s contract would have been renewed for the period pending her retirement, had the decision been taken in good faith. The Tribunal also considered that the contract could have been lawfully not renewed and thus decided to award the Complainant 200,000€ in material damages.

With regard to moral damages, the Tribunal found that, contrary to the ApC’s finding, the Complainant’s claim did not depend on proof of harassment. Indeed, as evidenced by her letter of resignation and her recent medical certificates showcasing the deterioration of her health, the unlawful decision to abolish her post and to not renew her contract had a serious and negative effect on the Complainant’s health and well-being, resulting in her resignation. The Tribunal awarded the Complainant 20.000,00€ in moral damages.

STANDARD OF PROOF BEYOND REASONABLE DOUBT AND DISMISSAL FOR SERIOUS MISCONDUCT

Judgment No. 4491

The Tribunal considered that the misconduct has not been established beyond reasonable doubt. It considered that the Complainant never had the benefit of the doubt and awarded her €30,000 in moral damages.

In the present case, the Complainant challenged the decision to dismiss her with immediate effect for serious misconduct and requested her reinstatement with retroactive effect and moral damages.

At the outset, the Complainant being charged with fraud (and misrepresentation), the Tribunal defined it as the intention to obtain financial advantage by deception. The Tribunal therefore recalled the essential principles applicable to disciplinary proceedings:

- A staff member accused of wrongdoing is presumed to be innocent and is to be given the benefit of the doubt. - The burden of proof of allegations of misconduct falls on the organization. - The organization must prove the misconduct beyond reasonable doubt. - 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.

Applying these principles to the present case, the Tribunal found that the Complainant was never given the benefit of the doubt during the investigative process and the disciplinary proceedings, in particular it considered that an unfair and distorted analysis of the facts had been made. The Tribunal was not satisfied that the misconduct was proven beyond reasonable doubt. The impugned decision was set aside, and the Tribunal considered that in view of the circumstances, the reinstatement of the Complainant was appropriate and awarded her 30,000€ in moral damages and 8,000€ in costs.

SUEPO Central


Interesting times ahead. Notice what the 'Stasi' of 'Sun King' did to an innocent mother. That's why such a gestapo-like regime ought not exist in the first place. In just a few years Benoît Battistelli stained the reputation (probably irreversibly!) of an institution almost half a century old. And yet, there's no plan to punish Battistelli himself... _________ * As a matter of priority, we've decided to do 4 videos, focusing on: 1) Red Hat hiring from Microsoft 2) the biggest Diapora* pod shutting down; 3) gemini:// in Daily Links and IRC 'enhancements'; 4) EPO matters, albeit in brief.

Recent Techrights' Posts

Against Outsourcing of Sites and E-mail
Software Freedom is great, but it is not enough if you let someone else do it 'for you'
Drew DeVault: People Talking About My Attack Site (Against the Founder of GNU/Linux) is "Spam"
"Spam on sr.ht mailing lists"
"Oppose the Fascist"
what the founder of GNU/Linux said
Halloween, All Saints Day & Swiss citizenship
Reprinted with permission from Daniel Pocock
 
Saving the Planet With Honesty, Transparency, and Sharing (Not Only of Computer Code)
GAFAM is destroying the only habitat humans and other animals have and it'll only get worse
Disinformation About Election Outcomes Even Before Any Election Outcomes (or Election/Voting!)
seeding doubt about election outcomes
Links 05/11/2024: Bluesky and Enshittification, Pugad Baboy, and Lots of Disinformation Flooding the Web
Links for the day
[Meme] Sweaty Under the Belly
"OK, my critics are 'spam'"
Microsoft Bribing Canonical (to Stop Competing) and Bribing Users to Shun the Competition
Canonical is worth shunning
[Meme] The 2024 'Info Bros'
And prehistoric googling
Computers Getting Worse (for the User) Over Time
This is like Windows-ism coming to "Linux" through the hardware
[Meme] How NOT to Vote
Another form of (mostly-unspoken-of) election interference
An LLM Inside a 'Search' Engine Means That Companies Tell You What They Want, Not What Web Pages to Visit
The future of 'googling' things might be as unreliable as using Social Control Media as a source of information
Google's Debt Has Increased and 'Cash on Hand' Fell by 22.27% This Past Year
These are the numbers that the corporate media intentionally leaves out
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, November 04, 2024
IRC logs for Monday, November 04, 2024
There's a Reason Why Techrights is Turning 18 and Tux Machines Will Turn 20.5 Next Month
I started advocating GNU/Linux when I was a teenager
Techrights Has a Long History of Fighting to Expose 'Team Mono' or Microsofters Inside GNOME
Never downplay the malice of Microsoft and its operatives
Gemini Links 05/11/2024: Halloween Over, Intention and Implementation, Bookmark Syncing
Links for the day
Microsoft Lost Nearly Half of Its 'Cash Reserves' This Past Year
Is Microsoft (MSFT) the next Intel (INTC)?
The Year Isn't Over Yet, There Will be More Waves of Microsoft Layoffs
Nowadays Microsoft just tries to conflate/equate its energy waste with "value"
The Corporate Media Blasted Bitcoin for Destroying the Planet and Must Do the Same to Incite the Public Against the 'Great Rigging of Wall Street' (Under the Guise of "AI", the Latest Gold Rush)
"AI" is the next "metaverse" (trailing by a few months)
[Video] Richard Stallman is Back to Halo and Gown (in Peru) With 2+ Hours of a Public Talk
The globetrotting Richard Stallman gave many talks at the end of last month
Going Strong Against the Wind
the abuse serves to emphasise or affirm the importance of what we do
Links 04/11/2024: Squashing More Software Patents and Taiwan at Risk
Links for the day
Gemini Links 04/11/2024: Typing vs Writing and a Smol (Net) Pub
Links for the day
Links 04/11/2024: LibreOffice Had Adopted PeerTube, "Hey Hi" Hype is a Threat to the Energy Grids (Worse Than Fake-Coins)
Links for the day
[Meme] Social Control Telescreens With Microphone
Nineteen Eighty-Four
Shout-out to Christine From FOSSForce
Who noticed our short story
Not Boycotting Apple (Yet)?
"Apple Forces The Signing Of Applications In MacOS Sequoia 15.1"
statCounter This Month: Android Has Nearly Become Twice as Big as Windows
If it happened, it would be an unprecedented milestone
Why Technical Sites Need Not Make Political Recommendations or Endorsements
Except perhaps when it's for some purely technical role, e.g. FCC chief
[Meme] Apple Freedom
Freedom is... the ability to purchase as many 'i' things as you want
Apple's MacOS Shows Us the Vision of Computing That GAFAM Has for Us (Digital Prisons)
Freedom means "we the people" should be in control, not people being controlled by corporations (contemporary slaveowners)
"Active" as in One URL, One Emoji, and 4 Words in One Week
Diversity community in Fedora
Apple Vision Pro Has Failed, Just Like "Metaverse"
Vision Pro lacks software
Things That Can Improve Election Integrity
the first two relate to "tech"
Rigging Elections is Difficult, Cheating a Little is Not
Avoid social control media, it is the biggest rigger of all
"People who live in glass houses shouldn't throw stones"
On throwing stones in a glass house
Our Stance on Electronic (or Digital) Voting Machines
The simple activity of voting and counting ballots does not require thousands of complex machines with hundreds of millions of transistors and hundreds of millions of lines of code
Microsoft and "Retrospective Re-writing of History..."
in YouTube anyone can make stuff up (as one goes along)
This Coming Week
Go exercise your right to vote
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, November 03, 2024
IRC logs for Sunday, November 03, 2024
Reddit is (Still) Lying and Faking
Don't fall for this phony idea that the above sites are grassroots or edgy; they're not
GNU/Linux Users Are Not Cheaters
The bottom line is, most cheaters use Windows
Links 04/11/2024: FCC, Broadband Industry Spar Over Net Neutrality; Software Patent Squashed
Links for the day
Gemini Links 03/11/2024: Official MyGemini.Space Announcement
Links for the day
Gemini Links 03/11/2024: Election Thoughts, Plagiarism, and LLM Slop
Links for the day
Links 03/11/2024: Deere 'Right to Repair' (RoR) and "Threads Bans Anyone For Mentioning Hitler"
Links for the day
[Video] "El Movimiento del Software Libre y el Sistema Operativo GNU" by Richard M. Stallman
The footage is a bit jittery (taken with a phone apparently, and there's no tripod available), but the sound is OK and the words (in Spanish) are comprehensible
Android at New Highs (47%), Windows at New Lows (24%), Suggests Latest Data From statCounter
So the market share of Android is about double that of Windows
[Video] Richard Stallman's Talk in Spanish (in Peru Last Week)
Alternative URLs too
The Media Focuses on the Wrong Scandal
The real scandal at MIT was Gates
Gemini Links 03/11/2024: Fantasy Life Day and Worship
Links for the day
[Meme] Write Us Drivers and GTFO!
When you realise sanctioning BRICS devs goes against the community
Decommissioning Copper Lines Makes Us Less Safe
We've essentially degraded the robustness or reliability of critical systems
Life of an Addicted Lolicon Who Can Also Code
Personal blog as an open diary
[Meme] Reporting Crime is Not a Crime
Obviously!
Manchester Party for Techrights
If you choose to come, of course we'll cover the cost of the food and treats (but not travel)
Privacy is Not a Crime (in Places Where It is a Crime the Regime is Typically Very Rogue)
Also, criminals lack "privacy rights" to hide their crimes from the public
GNU/Linux "Market Share" in Lebanon More Than Doubled in a Few Months
Maybe it's a reaction to something? Assassination in Haret Hreik was in July.
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, November 02, 2024
IRC logs for Saturday, November 02, 2024
Nearly 40 Years Without Security Incidents
People who use Windows have come to sort of "accept" that security incidents are part of life or "normal"
[Meme] The Streisand Effect
Simon says, don't bother trying to suppress facts
Streisand Effect at IBM?
Trying to silence your workers isn't the best approach. It only makes colleagues even more curious.
Microsoft is a Gift That Keeps Giving (Future Stories to Techrights)
Microsoft has been trying to silence me using dirty tricks for nearly 20 years
Elon Musk Has Trashed Twitter for Ideological Reasons (and Propping Up Trump in Exchange for Financial and Political Favours Once in Public Office)
In case you didn't leave Twitter already, consider the fact that Twitter's (or "X"... whatever!) future is uncertain
Wall Street Has Demoted Intel, Seeing There May be No Future to Intel
Intel's loss isn't a loss to us
Free Software Licence Compliance is About Security Too
Linux as de facto proprietary off-the-shelf platform