Facts

Parties and proceedings: The appellant (employee, Senior Auditor in the Internal Audit of the ETH Council, born 1973) had been permanently employed since 1 April 2013. The respondent is the Council of the Swiss Federal Institutes of Technology, represented by the President of the ETH Council (employer). The prior instance was the Federal Administrative Court (judgment of 13 October 2021, A-5318/2020). The Federal Supreme Court, I. Social Law Division, adjudicates the appeal in public law matters.

Facts: From 13 November 2017 until mid-January 2018, Internal Audit conducted an audit at the EPFL. Due to disagreements, the Audit Committee commissioned KPMG to review the audit process, the EPFL's statement and a periodic 'Quality Review' of Internal Audit. On 20 January 2020 the appellant received a warning for insufficient willingness to engage in dialogue and cooperation, with a threat of termination in case of repetition. By presidential decision of 29 April 2020 she was released from duty; the Federal Administrative Court declared this release null and void due to a formal defect (judgment of 29 September 2020). On 17 July 2020 the ETH Council announced the intended termination; on 25 September 2020 the President issued the ordinary termination effective 31 December 2020, with full release from duty and set-off of holiday and time credits.

Prior instance: The Federal Administrative Court partially upheld the appeal: the termination was made without a substantively sufficient reason, and the employer was ordered to pay compensation of six gross monthly salaries without social security deductions, plus 5% interest from 1 January 2021. For the remainder, the appeal was dismissed; the termination was not classified as abusive.

Requests before the Federal Supreme Court: Primarily, a declaration that the termination is null and void and that the employment relationship continues; in the alternative, continued employment or employment in an equivalent position; in the further alternative, compensation of one gross annual salary; in the further subsidiary alternative, remittal. In addition, payment of CHF 89,793.80 and CHF 3,290.- plus interest.

Procedural matters: A newspaper article of 12 February 2022 and an email from a technical expert of 19 November 2021 were declared inadmissible as genuine novas; the submission of 17 March 2022 was filed after the expiry of the appeal period and was not considered. A time record of September 2019 was disregarded as an inadmissible non-genuine nova (Art. 99 para. 1 FSCA).

Considerations

Admissibility: The appeal is admissible (Art. 82 let. a, Art. 83 let. g, Art. 51 para. 1 let. a, Art. 85 para. 1 let. b, Art. 89 para. 1 FSCA). The scope of review is limited by Art. 95, 96, 97 and 106 FSCA; complaints regarding the facts are subject to the qualified duty to specify (Art. 106 para. 2 FSCA); appellatory criticism remains disregarded.

Nullity of the termination: The termination was issued solely by the President of the ETH Council in the form of a presidential decision (Art. 2 PersO-FIT, Art. 11 and 15 Rules of Procedure ETH Council). That Vice-President B., after her presidency, was involved in the labour dispute does not constitute unlawful participation; supporting the President belongs to her function. A recusal request against B. was dismissed by interim decision of 22 September 2020 and was not timely challenged (Art. 45 para. 2 APA, Art. 92 para. 2 FSCA). The letter of 17 July 2020 must also be read in relation to the employer as a whole. Nullity was therefore rightly rejected.

Right to be heard and access to files: Minutes of the ETH Council and of the Audit Committee serve internal administrative opinion-forming and have no evidentiary character; there is no right of access (Art. 29 para. 1 and 2 Cst., BGE 129 V 472 E. 4.2.2). The EPFL letter is dated 18 May 2018 as a draft date, the statement of 6 July 2018; the complaint regarding missing files is unfounded. The request for evidence is dismissed.

Abusiveness (Art. 336 CO in conjunction with Art. 6 para. 2 and Art. 34c para. 1 let. b FPA): The lack of a substantively sufficient reason does not in itself establish abusiveness; required is a reason of comparable gravity to those listed in Art. 336 CO. The termination was based not only on the already warned allegations but on further conduct after the warning, so there is no violation of good faith. The refusal to participate in the KPMG interview of 2018 and the interview appointment of 2019 (duty of loyalty and compliance) was established in conformity with federal law; the novum concerning the time record remains disregarded.

Retaliatory termination and duty of care: The probative value of the medical adviser's report of 30 April 2020 cannot be denied solely for lack of psychiatric specialist qualification, but it rests mainly on the appellant's statements. Abusiveness requires a causal link between the prohibited motive and the termination; the burden of proof lies with the employee (BGE 125 III 70 E. 2a, BGE 130 III 699 E. 4.1). This proof was…