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The Federal Supreme Court partially approves the complaint of the University of Zurich: the dismissal of Iris Ritzmann was abusive, but not null. A lot happened for everyone involved.
The University of Zurich was partially ruled before the Federal Supreme Court.
Eight years ago, Iris Ritzmann started a legal glove that, after some successes, has now ended in disappointment. Lucerne’s first social law department partially approved the complaint from the University of Zurich on Tuesday and concluded: Ritzmann’s dismissal was abusive, but not void. This compensates Ritzmann, but he does not continue to employ him. This also applies to recent years, which has significant financial consequences, both in terms of wages and pensions.
Ritzmann, an associate professor, former deputy director of the Institute for Medical History at the University of Zurich and currently a professor, is known throughout most of Switzerland as the opponent of the politician and medical historian SVP Christoph Mörgeli.
Unusable evidence
In 2012, the “Tages-Anzeiger” reported on the criticism of the Medical History Museum and, especially, its director at the time, Christoph Mörgeli. The journalist relied on internal information from the Institute of Medical History, such as the still unpublished 2011 annual report. Mörgeli was fired – illegally, as it became known later – and the prosecutor was investigating for violation of official secrecy. In the course of this research, she had landline and mobile phone connections, as well as email accounts of all university employees and students verified across the board. Who was the mole?
Professor Iris Ritzmann was abusively dismissed from the University of Zurich.
Suspicion fell on Ritzmann, even after police searched his home and office. She was charged with multiple breaches of official secrecy and also released. The then rector of the University of Zurich terminated the employment relationship with a letter dated October 29, 2013 at the end of April 2014.
Seven years have passed and Ritzmann was finally acquitted of the charge of breach of official secrecy in March 2017. All instances up to the Federal Court of Lausanne had unanimously concluded that the prosecutor had gone too far.
The collection of contact data by phone and email is only legal if there are already sufficient suspicions. But when the public ministry began, they didn’t have a specific goal in their sights. And finally, the courts also considered the action disproportionate, since a large number of non-defendants were affected by it. In short: all the data collected and any evidence was declared unusable.
No reason for termination
This verdict is now also important in the personnel law procedure. Because Ritzmann had also defended himself legally against his dismissal from the beginning. Following the suspension of this procedure for the time being, the appeals committee of the Zurich universities concluded in February 2019 that the termination was formally inappropriate “because the rector was not responsible”. Ritzmann will be compensated with two gross monthly salaries.
On the other hand, Ritzmann went to the administrative court in Zurich. He approved his complaint and declared the nullity of the letter ordering the termination of the employment relationship. Unusable evidence played an important role. Because: “Without this evidence, the University of Zurich had absolutely no reason to initiate a dismissal proceedings against Iris Ritzmann,” the administrative court concluded.
The University of Zurich referred the case to the Federal Supreme Court, which advised it publicly in Lucerne on Tuesday. In essence, it was about qualifying the termination. For most of the judges of the first department of social law, the deficiencies in the dismissal were not serious enough to justify the nullification.
Disability criteria are not met
The five judges agreed that the evidence obtained by the prosecutor in the course of the criminal process was unusable. On the question of what role this test played in the personnel law process, opinions differed. The two losing judges did not find the decision of the Zurich Administrative Court objectionable and also shared their argument. Not so with the other three – they noted that faulty orders, including disputed completion, are generally not void. Furthermore, the Zurich Personnel Law does not provide for the invalidity of dismissals, because the legislator had expressly wanted to exclude the right to continue employment, with the intention that no employee should be obliged to a superior.
Consequently, the obstacle to the presumption of nullity must be set very high. The court of first instance, based on the so-called theory of evidence, used certain criteria to assess invalidity and found that they were met. However, the majority in the Federal Supreme Court did not consider it proven that these criteria were met. The sender of the rescission has no manifest incompetence, nor is the rescission immoral or illegal. It is arbitrary for the Administrative Court of Zurich to declare the nullity with other reasons and, therefore, partially approve the appeal of the University of Zurich.
And finally, the federal court did not even agree on the cost sharing. The two losing judges demanded that the court costs be divided between the parties on the grounds that the university had not fully penetrated their complaint. But they were also defeated in this area: the court ordered Ritzmann to pay the full court costs of 11,000 francs and also denied him the right to part compensation. The case now returns to the lower court, which, among other things, must determine the amount of compensation for Ritzmann and clarify the question of any compensation.
Sentence 8C_7 / 2020 of the Supreme Federal Court of November 3, 20
