Made in accordance with Article 3(5) of the Statute of the European Ombudsman

The background to the complaint

1. On 1 June 2009, the complainant joined EASA as a temporary agent on a five-year contract. His probationary period ended on 30 November 2009. The complainant considered his probationary period as uneventful. However, the draft probationary period report he was shown in October 2009 recommended that he be dismissed at the end of the probationary period.

2. The final probationary period report, dated 23 October 2009, contained the following statements: The complainant had achieved the objectives for the probationary period; however, his work often had to be corrected "in order to better reflect the position of the Agency […] as opposed to his personal standpoint". He had repeatedly asked to be allowed to carry out external activities which were not in the interest of the service "or even potentially conflicting with it". This had been discussed repeatedly, but the complainant had shown "reluctance in accepting the basic concept that external activities are subject to specific authorisation by the Agency". His technical knowledge was above average. His conduct and behavioural competencies, however, were not satisfactory. He was found to lack team working and "general diplomatic skills", was "rather stubborn and unaccommodating", had an "insufficient ability to listen to other's arguments" and had "shown an extreme difficulty to in accepting suggestions or advice". He was thus "not suitable for the position".

3. In his comments on the report, the complainant called the report unfair and unjust, and the comments made about him unfounded. He argued that his supervisor had never complained or asked him to improve his efficiency or conduct. He rejected the view that he lacked the ability to work in a team and to accept suggestions from others, referring to his prior roles.

4. The complainant explained that he was "well established as an expert and lecturer". He had therefore asked, already at the interview stage, whether he could continue lecturing, in particular, to give certain courses which were already fixed for June and December 2009. He had also mentioned taking part in a trainer seminar in August 2009, and in other international congresses. At that time, he had been assured that "this would be no problem, especially the [June] course". This assurance was repeated by his future supervisor who, having checked with the department manager, stated that he could not give the complainant any written confirmation but that "everything would be OK". When the complainant started his job, he asked "at least three times" whether he would be able to give the June course and was told that he could. However, two days before the course, he was told that there was a particular procedure for authorising activities outside the Agency.

5. When the countersigning officer approved the probationary period report, he added some handwritten comments, noting in particular that the complainant had "a megalomaniac approach and would not fit into a [...] team".

6. On 18 November 2009, the complainant made a complaint under Article 90(2) of the Staff Regulations. He maintained that the comments on his character and conduct were unfounded. Had it been otherwise, his supervisors ought to have warned him and given him the opportunity to improve his performance rather than dismiss him. This had not happened. The official who had diagnosed him to be a "megalomaniac" had only met him two or three times. The complainant also argued that the decision to dismiss him was based on "personal animosity" that might have been caused by his insistence on the teaching engagements he was promised he could continue when he joined. He thus asked EASA's Executive Director to review the report and remove the unfounded statements about his performance and conduct so as to allow him and EASA to "separate from each other in mutual consent".

7. In his reply of 23 March 2010, the Executive Director noted that the comments made by the reporting officer were endorsed and confirmed by the countersigning officer and the responsible director. He considered that the report presented a "balanced, albeit overall negative, assessment of [the complainant's] efficiency, ability and conduct during the probationary period" and it "hence constitute[d] neither an insult nor a defamation". There was thus no reason to modify the report. However, he offered to issue a neutral confirmation that the complainant worked for EASA, without the comments the complainant had challenged. On 26 March 2010, the complainant stated that, while he was not satisfied with this decision and could not accept the wrongful statements made in the report, he would very much like to receive such a confirmation.

8. On 21 April 2010, he made a second Article 90(2) complaint "because of unjustified, false allegations in [the] probationary period report". He stated that he had to defend himself against the unjustified personal attacks and restore his professional reputation, which had been "tarnished by servants of the agency" in what he considered was "character assassination". He also considered that the decision by EASA to confirm another candidate who he felt was not as competent as him was due to a clear discrimination against him based on grounds of nationality. The complainant claimed that the Executive Director had told him that he was aware of the "favouritism and preferential treatment of colleagues [from a southern country] and the problems this creates". On 12 November 2010, he again complained to the Executive Director about his dismissal, and that he had not received a reply to his letter of April 2010.

9. Not having received a reply, the complainant turned to the Ombudsman.

The inquiry

10. The Ombudsman opened an inquiry into the following allegations and claims identified in the complaint.

Allegations

1. The decision to dismiss the complainant after his probationary period was unjustified.

2. EASA wrongly included statements in the complainant's probationary report that were insulting and defamatory and attacked his personality.

3. EASA acted unfairly in dismissing the complainant after his probationary period.

4. EASA discriminated against the complainant.

Claims

1. EASA should revise the unjustified probationary period report.

2. EASA should apologise for its wrongdoing.

11. The complainant also claimed that EASA should financially compensate him. However, since the complainant had not brought this claim to the attention of EASA beforehand, the Ombudsman informed him that that claim was inadmissible.

12. In the course of the inquiry, the Ombudsman received the opinion of EASA on the complaint and, subsequently, the comments of the complainant in response to this opinion. The Ombudsman's friendly solution proposal takes into account the arguments and opinions put forward by the parties.

Preliminary remark

13. EASA noted in its opinion that the complainant did not bring the matters he raised in his complaint before the Civil Service Tribunal. It concluded from this that the complainant had not made use of his right of appeal. In this respect, the Ombudsman recalls that the fact that the complainant chose not to bring an action before the Civil Service Tribunal, but to submit a complaint to the Ombudsman does not have any bearing on the Ombudsman's competence to open an inquiry into this case.

A. Allegation that the decision to dismiss the complainant was not justified, and related claims

Arguments presented to the Ombudsman

14. The complainant argued that his performance and his conduct were beyond criticism. The allegations contained in the report were unfounded. The real reason for his dismissal was that he had insisted on continuing his teaching engagements.

15. In its opinion, EASA said that it had correctly applied the Conditions of Employment for other Servants of the European Union (the 'CEOS'), in particular Article 14, which dealt with the probationary report, and its Executive Director's Decision 2009/050/E Establishing the Policy and Procedure for the Probationary Period of Temporary and Contract Staff.

16. The purpose of the probationary period report is to provide a "complete assessment of the probationer" and to evaluate his or her skills and progress, to determine which assignments were appropriate, and to assess how an employee interacted with colleagues, supervisors and stakeholders. The resulting assessment was positive as regards the complainant's technical knowledge and the achievement of his "technical objectives", but more critical in relation to his ability to work in a team and his efficiency.

17. The reporting officer had considered that the complainant's "continuous requests" for authorisation to "perform external activities", which affected his efficiency at work, were worth mentioning in that report. The complainant had not accepted the rules governing the exercise of external activities by EASA staff. EASA had been "quite accommodating": while it had to point out the possible conflict between the activities which the complainant wished to pursue and his tasks at EASA, it granted him permission to pursue such activities in two instances, since an agreement had been made in this regard before the complainant joined EASA. However, the complainant's inability to understand the legal framework and working environment at EASA, and his continuous discussions in relation to his proposed external activities, had an adverse impact on his efficiency at work.

18. In his observations, the complainant explained that his teaching engagements were important to him because he was the only one in Europe, and possibly worldwide, who could give some of the courses he taught. These courses played an important role for flight safety in Europe. Moreover, he could not count on his five year contract with EASA being renewed, and thus had to continue these courses lest other providers fill the void. Had he known that this would have posed such problems, he would have asked to start on 1 July 2009 (after the June course) instead of 1 June 2009.

19. In an e-mail of 21 July 2009 which summarised an agreement reached during a previous meeting, his supervisor stated that under EASA's policy, its employees could not have a "private professional relationship for training"; they could only provide training on behalf of EASA, and only if they were authorised. Attending conferences and similar events should be kept at a minimum, and also be authorised. The complainant replied the same day, expressing his disappointment that this information was different to "previous statements". He confirmed that he understood that he should not contract for any new training engagements, but that he could honour those he had already agreed to, subject to informing his manager.

20. When his manager refused his approval for an engagement which had been expressly allowed during the meeting, the complainant asked for another meeting, this time with the head of HR. According to the minutes of that meeting, external activities which might conflict with the interest of the service were always subject to approval by a manager and the Executive Director of EASA, even if they took place outside working hours. The income resulting from such activities could not exceed EUR 4500 per year. Professional activities (such as practicing as a doctor) were prohibited. In the complainant's case, it was decided that (i) exceptionally, he could do what was strictly required under German law to allow him to keep his qualifications; (ii) decisions on his requests for external training sessions would be taken by his managers on a case-by-case basis; (iii) his teaching activities could be authorised as long as they did not relate to EASA's remit.

21. The complainant stated that he had hoped that this agreement would settle the matter. Instead, he realised that his insistence later on, that the agreement be honoured, provided the EASA with the pretext to dismiss him.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

22. The complainant considers that his dismissal at the end of his probationary period had nothing to do with his performance at work. Rather, he was asked to leave because he insisted on a promise he was given before he joined, that is to say, that he could continue to offer external training sessions. He therefore claimed that EASA should revise the probationary period report.

23. Article 14 of the CEOS, to which EASA referred, gives the appointing authority the power to dismiss a "member of the temporary staff whose work has not proved adequate to justify retention in his post". EASA has a large margin of discretion when deciding whether this is the case. To unduly limit this discretion would mean undermining the very purpose of the probationary period, which is to ensure that only candidates who show themselves capable of performing on the post are retained.

24. However, in the present case, there are clear indications that the dispute between EASA and the complainant about his "external activities" unduly influenced EASA's assessment of his performance. The report on the complainant's probationary period mentioned this conflict in the section on the complainant's efficiency, noting that the complainant was reluctant to accept "the basic concept that external activities are subject to specific authorisation". In its opinion, EASA submitted that the complainant's inability to understand the legal framework and the continuous discussions regarding external activities adversely impacted on his efficiency.

25. The Ombudsman notes that the fact that "external activities" must be authorised is not only in accordance with the Staff Regulations of the EU, but also provides a useful opportunity to check that the activities do not conflict with the interest of the service. Even though the probationary period report is silent on this issue, EASA admitted in its opinion that "an agreement was previously made in this regard prior the complainant's contract with EASA started". It is clear also from the minutes of the meetings which the complainant had with his managers on this matter that such assurances were indeed given to the complainant. Thus, it appears that the complainant was indeed promised that his teaching activities "should not be a problem" and that he could continue to teach certain defined courses, the importance of which he had underlined during the interviews.

26. In this context, the Ombudsman finds it reasonable that the complainant, once these promises were not honoured by his immediate supervisors, would bring the matter to the attention of EASA's Head of human resources. While the meetings that followed certainly took time, and in all likelihood made the relations between the complainant and his managers more difficult, it would be wrong to blame the complainant for insisting on a promise he had been given.

27. The Ombudsman therefore makes the preliminary finding that, when assessing the complainant's efficiency at work, EASA unduly took into account, to the detriment of the complainant, his insistence that EASA abide by its earlier promises to allow him to continue with his teaching activities. This could amount to an instance of maladministration. The Ombudsman therefore makes a corresponding proposal for a friendly solution below, in accordance with Article 3(5) of the Statute of the European Ombudsman.

B. Allegation that the decision to dismiss the complainant was unfair, and related claims

Arguments presented to the Ombudsman

28. In support of this allegation, the complainant argued that the decision not to prolong his contract, which was based on the comments made in his probationary report, was unfair because he learned about these comments only when he read the report. His supervisor had never asked him to improve his efficiency or conduct. The complainant added that he was not aware that his work ever had to be corrected.  

29. EASA explained that there had been "several conversations" between the complainant and his reporting officer about the former's "performance problems" throughout the probationary period. Two of those related to the complainant's missions to two other countries, while other meetings took place between the end of July and October 2009. The complainant's manager encouraged him to "improve certain aspects of his behaviour" and expressed concern as regards the complainant's relationship with his colleagues and "external parties". He had also raised concerns about the complainant's "closed behaviour" especially in regard to some colleagues who had come to complain to him directly about how the complainant had treated them. Despite these conversations, the complainant did not change his behaviour. Moreover, two meetings had been held to explain the rules governing "external activities". The complainant could thus not claim that he was not informed about the criticism made in the report.

30. In his observations, the complainant maintained that he had never been warned that his behaviour was inappropriate and added that during the two missions, it was not him, but his colleagues and supervisors who had been criticised. He had in fact been praised for the mission. Moreover, in the two meetings mentioned by the EASA, his manager never raised any issues relating to communication problems with his colleagues or asked him to change his behaviour. The complainant doubted whether such matters had ever been raised during his time at EASA.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

31. It is established case law that, where an institution takes a decision which can adversely affect a person, it has to observe the rights of defence. The Civil Service Tribunal has stated that the need to respect the rights of defence "does not place the administration under an obligation to warn a member of the temporary staff during the probationary period that his performance is unsatisfactory", given that the report is sent to the staff members for comments precisely in order to allow them to defend themselves.[1]

32. However, the issue to be resolved in the present case is not whether EASA respected the complainant's rights of defence but whether it acted fairly. The Ombudsman considers that newly recruited members of staff can expect to be treated fairly during their probationary period. This includes being given the opportunity to show that they can perform the tasks of the post they were recruited to, which is clearly in the interest of the appointing authority. However, this also means that that authority should alert the probationer in good time where it is not satisfied with the latter's performance. Such warnings are in the interest of both parties since they give the member of staff the opportunity to improve performance before a final assessment is made.

33. In the present case, the complainant claims that it was only through the probationary period report that he learned of the fact that EASA had serious doubts about his performance. This report was brought to his attention in October 2009, that is to say, after more than two thirds of this probationary period had already passed. It is true that EASA claimed that it had alerted the complainant to the problems it considered to exist as early as July 2009. However, EASA has not put forward any evidence to establish that the complainant's supervisors did in fact make it clear to the complainant that he had to improve his performance and conduct at work quite considerably in order to be confirmed in his position.

34. In the absence of such evidence, the Ombudsman makes the preliminary finding that that EASA dismissed the complainant without having given him fair warning in good time. This could be a further instance of maladministration. She will therefore make a corresponding proposal for a friendly solution below.

C. Allegation that EASA made insulting statements about the complainant and related claim

Arguments presented to the Ombudsman

35. The complainant considered some of the statements contained in the probationary period report insulting. In particular, he objected to being described as having "a megalomaniac approach" and being stubborn.

36. In its opinion, EASA stated that it was required to evaluate not only the complainant's performance but also his capacity for teamwork and other such "soft factors". The comments in the probationary period report were such an evaluation of the complainant's performance at work and not a general assessment of his personality. The statements that he was "stubborn and unaccommodating" and that he had "a megalomaniac approach" should be read in this context. The complainant had shown that he was not open to accepting other peoples' opinions and that he lacked the required diplomatic skills. EASA added that, if it were the case that the statements were found to be offensive, it should be taken into account that it had sent the complainant a "neutral statement" which listed the tasks he completed during his time at the EASA in an objective manner. Thus, his allegation should be rejected.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

37. The Ombudsman notes that megalomania can be defined as meaning either a "mania for great or grandiose performance" or "a delusional mental disorder that is marked by feelings of personal omnipotence and grandeur"[2]. In these circumstances, it is difficult to see how labelling someone as megalomaniac can be considered as anything other than insulting. The Ombudsman cannot accept that an institution or body of the EU uses such-like expressions in staff reports.  

38. The Ombudsman considers that describing an employee as "stubborn and unaccommodating" may not as such be considered as insulting. In fact, there can clearly be cases in which it would be appropriate for an institution to use such words to describe the attitude of one of its employees. It is obviously for the institution concerned, in the exercise of its discretion, to decide whether this is the case and, if necessary, to justify its choice of words. The Ombudsman cannot help thinking, though, that the use of the above wording in the present case is, at least to a considerable extent, due to the complainant's insistence to carry out his teaching activities on the basis of the promises he had been given by EASA. In that case, the above remarks would have to be considered inappropriate. Although the complainant only referred to insulting (rather than inappropriate) language, the Ombudsman considers it justified to include this aspect of the case in her proposal for a friendly solution

39. The "neutral statement" which EASA provided to the complainant is certainly to be welcomed, and was in fact welcomed by the complainant. However, it does not address the fact that the statements described above were not rectified but remained in his probationary period report.

40. In light of the above, the Ombudsman makes the preliminary finding that, by including the abovementioned inappropriate or insulting statements about the complainant in his probationary period report, EASA committed a further instance of maladministration. She therefore makes a corresponding proposal for a friendly solution below, in accordance with Article 3(5) of the Statute of the European Ombudsman.

D. Allegation of discrimination against the complainant and related claim

Arguments presented to the Ombudsman

41. The complainant argued that he was discriminated against. Another employee from a southern country, who he thought had performed less well during the probationary period, was offered a contract whereas he was not. That other employee was of the same nationality as the supervisor who took this decision. More generally, the complainant felt that he was a victim of prejudices against his nationality which were widespread within the EASA.

42. In its opinion, EASA provided statistics to show that there was no overrepresentation or favouritism of any particular nationality. The current Director was of a different nationality than the four heads of departments, three of whom were of the same nationality as the complainant's and the fourth was of a southern country. Moreover, there were eleven section managers, only one of whom was from the same southern country. The team in which the complainant worked was composed of ten members all of different nationalities. Moreover, the Executive Director strongly denied ever having made a statement of the kind the complainant alleged he had. He added that, since the figures showed that no nationality was unduly favoured, there would not have been any basis for him having made such a statement.

43. Also, EASA stated that, contrary to what the complainant had argued, the probationary period report of his other colleague showed that his performance was satisfactory. The complainant's personal view, that this colleague had not performed well, was not supported by any evidence.

44. In his observations, the complainant argued that the reason why he was discriminated against could be related to his former workplace.

The Ombudsman's assessment

45. The Ombudsman notes that the only fact on which both parties agree is that the complainant's contract was terminated after the probationary period and that a colleague of another nationality was confirmed after the end of his probationary period, at around the same time as the complainant was not.

46. The complainant has not furnished any reliable evidence of him being the victim of discrimination based on grounds of nationality. What is more, EASA has furnished statistics to show that there is no discernible preference for employees of a specific nationality, as the complainant had alleged. The figures also did not show the complainant's nationality was underrepresented.

47. The Ombudsman therefore concludes that the complainant's allegation of discrimination cannot succeed. She finds no maladministration in this regard.

E. The proposal for a friendly solution

Taking into account the Ombudsman's findings, EASA should consider (i) removing the inappropriate and insulting statements from the probationary period report and (ii) apologising for having (a) included these remarks in the probationary period report, (b) taken into account negatively the complainant's insistence to be allowed to proceed with his teaching engagements on the basis of the relevant promises he had been given by EASA and (c) failed to warn the complainant in good time of its doubts concerning his performance and conduct.

 

 

Emily O'Reilly

Done in Strasbourg on 01/06/2014

 

[1] Case F-61/06 Cathy Sapara v Eurojust [2008] ECR I-A-1 p.247, paragraph 149.

[2] Definition given in the Merriam-Webster dictionary.