Judgment on dismissal of a lecturer

The lecturer concerned worked for over 25 years at an administrative unit of the Federal Department of Defence, Civil Protection and Sport (DDPS). The DDPS unit terminated the lecturer’s employment contract by an order dated 21 March 2024, effective 31 July 2024. It justified the dismissal on grounds of poor performance and conduct appraisals in the periods 2021/2022 and 2023, the permanent cancellation of the lecturer’s teaching assignment at a university, and the fact that he had rejected the offer of an alternative position with the DDPS. He lodged an appeal with the Federal Administrative Court (FAC) on 6 May 2024. The appellant is seeking continued employment on a permanent basis. Alternatively, he requests continued employment until the end of September 2024 and compensation amounting to 24 months’ salary.

Dismissal not abusive and no monopoly profession
A dismissal is abusive if it is issued on grounds that are inadmissible. In its judgment, the FAC found that in the case at hand dismissal could not be deemed abusive. Contrary to the appellant’s claims, there was nothing in the conduct of the administrative unit to indicate a “hidden agenda” or a breach of its duty of diligence; rather, there were service-related reasons for the temporary transfer of the lecturer on 28 February 2024 and the promotion of his assistant at the time. Nor was there any harassment on the part of his hierarchical superior. Since the notified termination was not abusive, there is no entitlement to continued employment. The termination thus ended the employment relationship with the lecturer. As he was not working in a monopoly profession, the employment relationship ended on 31 July 2024, and was extended until 31 January 2025 owing to his incapacity for work.

No objective grounds for dismissal
In public employment law – unlike in private law – employers must have objective grounds for dismissal. Moreover, dismissal must be proportionate. The allegedly poor teaching performance referred to in the case at hand was based on the feedback from six students participating in a university degree course. There were no directives for accessing examination papers or re-examination, nor were the alleged failings deemed sufficiently serious to justify the dismissal. The records do not show that the lecturer was generally unwilling to accept criticism. The Court does not address the inadequacy of the appellant’s research performance in the periods 2021/2022 and 2023. However, it finds that his research performance had been good for many years and that he had achieved some of the targets set for 2021/2022 and 2023. A holiday trip abroad was tolerated by the employer and does therefore not justify a dismissal on grounds of unauthorised leave.

Considering the appellant’s more than 25-year track record in teaching and research, which was mostly positively reviewed, the DDPS administrative unit in question should have given him an opportunity to improve his record. How this could have been achieved once the teaching assignment was cancelled is irrelevant. Therefore, the dismissal is deemed disproportionate, and unjustified in absence of a prior warning. The position of research assistant at the DDPS offered by the lower instance on 18 January 2024 is unreasonable since the position was only temporary. There are thus no objective grounds for dismissal. Consequently, the Court awards the lecturer compensation amounting to eight months’ salary.

When an employee is dismissed without fault, the employer is required to pay additional compensation if the employment relationship was long-lasting or the employee has reached a certain age. Since the lecturer’s dismissal was without fault, and since he worked for the government for over 25 years and had reached a certain age, the Court awards him additional compensation of eight months’ salary.

This judgment may be appealed to the Federal Supreme Court.