Employment certificate in public personnel law: amount in dispute threshold not reached, appeal inadmissible and subsidiary constitutional complaint dismissed

Facts

Parties and instances: The appellant ([A.] , diplomate psychologist, born 1974, represented by counsel) had been employed at 80% since 15 October 2013 as a member of department [B.] of the Canton of Zug. The respondent is the Government Council of the Canton of Zug. The prior instance is the Administrative Court of the Canton of Zug (V 2018 73).

Background: Due to inadequate work performance, supportive measures (coaching) were introduced and a reprimand was considered. After the appellant resisted the measures and repeatedly attacked her supervisor, she was superprovisionally released from her duty to work on 21 September 2017. The Government Council terminated the employment relationship by decision of 21 November 2017 with effect from 28 February 2018. The termination was confirmed by the Administrative Court (23 May 2019) and by the FSCA (8C_469/2019 of 30 October 2019).

Proceedings concerning the employment certificate: The Directorate of the Interior issued an employment certificate on 22 November 2017. At the appellant's request, it issued a formal ruling on 21 December 2017. By administrative appeal of 11 January 2018, the appellant requested a reformulation. The Government Council partially upheld the appeal and, by decision of 19 June 2018, instructed the Directorate to issue the certificate in accordance with its specifications. The Administrative Court dismissed the appeal of 14 July 2018 on 27 August 2019.

Requests before the FSCA: The appellant requested that the prior decision be set aside and the matter remanded to grant the right to be heard and conduct the taking of evidence, or alternatively that the employment certificate be amended in accordance with her proposal, as well as joinder with the proceedings concerning the termination (8C_469/2019). She further requested that the appeal be treated as a subsidiary constitutional complaint. No exchange of written submissions took place.

Subject matter of the dispute: Whether the prior instance correctly upheld the wording of the employment certificate in accordance with the Government Council's specifications. Objected to were in particular the sentence on independent and conscientious work, the word 'stetig' (steady) in the induction, the paragraph on the learning fields (case management, case handling), and the term 'Lernfeld' (learning field).

Considerations

Amount in dispute and admissibility (consid. 1): The FSCA examines the admissibility requirements of its own motion. The Administrative Court is the last cantonal instance (Art. 86 para. 1 lit. d FSCA). Disputes concerning the issuance or wording of an employment certificate in public personnel law are of a pecuniary nature. The amount in dispute threshold of CHF 15'000 (Art. 85 para. 1 lit. b FSCA) is not reached: the amount in dispute is estimated at no more than one month's salary, which, even converted to a 100% position, is clearly below that threshold. The appellant did not claim a higher monthly salary and did not provide any information that would permit an estimate of the amount in dispute.

No joinder of proceedings: The request for joinder with the termination proceedings does not change the amount in dispute. Joinder was not appropriate on procedural economy grounds, since the termination proceedings were already ready for decision when the appeal concerning the certificate was filed. The appellant elsewhere objected to the merging of the proceedings as inadmissible, which indicates that the request was obviously intended only to reach the amount in dispute threshold. Asserting a violation of the Gender Equality Act (GEA) does not trigger the exception under Art. 83 lit. g FSCA, since the assessment of an employment certificate is a matter of pecuniary interest.

Subsidiary constitutional complaint (consid. 1.4, 2): Insofar as constitutional complaints are raised, the subsidiary constitutional complaint under Art. 113 et seq. FSCA is admissible. A qualified duty to raise objections applies (Art. 106 para. 2 in conjunction with Art. 117 FSCA): the violation of constitutional rights must be clearly and specifically set out. Arbitrariness exists only where the decision is obviously untenable not only in its reasoning but also in its result (Art. 116 FSCA).

Right to be heard (consid. 5): The right to be heard (Art. 29 para. 2 Cst.) was not violated. The prior instance relied only on documents from the certificate proceedings, which were known to the appellant and on which she could comment. That the prior instance followed its statements on the termination when assessing the certificate is consistent, since it is bound by its own decision. The allegation of extraneous documents and the claim that the joint report of 8 January 2018 was not served are unfounded.

Objections to the facts and wording of the certificate (consid. 4, 6, 7): The objections to the findings of fact are limited to…