Facts

Parties and proceedings: The appellant ([A.] , born 1965) had been employed on an open-ended basis as a 'Senior Auditor' in the Internal Audit of the ETH Board since 1 April 2013. The respondent is the Board of the Swiss Federal Institutes of Technology (ETH Board), represented by its President. The lower court was the Federal Administrative Court (judgment of 13 October 2021, A-5345/2020). Before the Federal Supreme Court (8C_774/2021, judgment of 21 November 2022, I. Social Law Division), the matter concerned public personnel law, specifically the termination of the employment relationship by ordinary notice.

Audit process and conflict: From 13 November 2017 until mid-January 2018, the appellant, together with other auditors, carried out an audit at EPFL. Disagreements arose with EPFL. The Audit Committee of the ETH Board commissioned KPMG to conduct a review. Based on its report of 10 January 2019, the audit report was amended on certain points. The appellant refused to sign the modified report. The head of Internal Audit signed the amended report on 23 April 2019 together with his deputy.

Warning, release from duties and initial decisions: On 20 January 2020, the appellant received a warning with a notice of termination for any repetition. On 21 January 2020, he submitted a medical certificate (100% unfit for work until 20 February 2020) and ended an appraisal interview. The presidential decision of 29 April 2020 on release from duties was declared void by the Federal Administrative Court on 29 September 2020 due to a formal defect; in all other respects, it did not enter into the matter.

Termination: After granting the right to be heard, the ETH Board terminated the employment by presidential decision of 25 September 2020 with effect from 31 December 2020 and released the appellant from duties with full continued salary payment; holiday credits were to be taken during the release period. The appellant had previously filed a recusal request against [B.] , which was dismissed by decision of 22 September 2020.

Judgment of the lower court: The Federal Administrative Court partially upheld the appeal. It found the termination not sufficiently justified on substantive grounds, but denied that it was abusive. It awarded compensation equal to six gross monthly salaries without social insurance deductions, plus 5% interest from 1 January 2021, and dismissed the appeal for the remainder. It considered the appellant to have prevailed to one quarter and awarded him party costs for the period from 28 September 2020 in the amount of CHF 3,977.85.

Requests before the Federal Supreme Court: The appellant requested in particular a declaration that the termination was void, alternatively continued employment or compensation equal to one gross annual salary with 5% interest, payment of the holiday credit of CHF 34,751.60, and remittal to the lower court. The ETH Board requested dismissal of the appeal.

Considerations

Admissibility and novel facts: The appeal in public law matters is admissible (Art. 82 let. a, Art. 83 let. g, Art. 85 para. 1 let. b, Art. 89 para. 1 FSCA). New facts and evidence may only be considered insofar as the lower court's decision gives rise to them (Art. 99 para. 1 FSCA). The email from a technical expert of 19 November 2021 and the newspaper article of 12 February 2022 are genuine novas and are disregarded. The submission of 17 March 2022 was also filed after the appeal deadline expired and is not considered (Art. 100 para. 1 FSCA). The Federal Supreme Court examines only the complaints raised but applies the law ex officio (Art. 106 para. 1 FSCA). Complaints concerning the establishment of facts are subject to the qualified complaint principle (Art. 97 para. 1, Art. 105, Art. 106 para. 2 FSCA).

Right to be heard and nullity of the termination: There is no right of inspection into the minutes of the ETH Board and the Audit Committee, as these serve internal opinion-forming and have no evidentiary character (Art. 29 para. 2 Cst.; Art. 29 para. 1 Cst.). The EPFL letter of 18 May 2018 was known to the appellant; there was merely a confusion regarding the date. The termination was issued solely by the President (Art. 2 para. 1 let. b and para. 2 PersO-FIT; Art. 11 para. 1 let. a and Art. 15 para. 1 let. g Rules of Procedure of the ETH Board). There is a lack of grounds to treat the participation of Vice-President [B.] as unlawful; her supporting function does not stand in the way. There is no violation of Art. 29 para. 1 Cst. or Art. 6 ECHR. A recusal request under Art. 10 APA is untimely (Art. 45 para. 2 APA; Art. 92 para. 2 FSCA). The reference to the 'ETH Board' in the letter of 17 July 2020 designates the employer and not a collegiate authority. The nullity was therefore correctly denied.

Substantive ground for termination and abusiveness: The absence of a substantively sufficient reason (Art. 10 para. 3 FPA) does not in itself establish abusiveness. Abusiveness requires a ground of comparable gravity to those listed in Art. 336 CO; the list is not exhaustive (Art. 6 para. 2, Art. 34c para. 1 let. b FPA in conjunction with Art. 336 CO). The employer may assess the conduct comprehensively, including incidents for which a warning has already been issued. The termination was based on further grounds, so there is no identity of the allegations and no violation of good faith. The refusal to sign was indeed a breach of the duty to comply, as the Audit Committee acted within its competence and was entitled to rely on KPMG's recommendations. However, the breach had to be put into perspective given the pressure from EPFL and the lack of support. The allegations against [B.] exceeded the tolerable limit and violated the duty of loyalty; they remain relevant even where they were raised in the course of the legal dispute. An abusive termination under Art. 336 para. 1 let. b CO is…