First Appeals in matters of public law
The contested the Court of Appeal Judgement as an administrative court relates to a public-law employment relationship, that is a public matter (Article 82 lit. a BGG). With the desire, the ruling of the Administrative Court should be set aside and declare the nullity of the termination available, future wage claims are connected, so it is a proprietary issue and a reason for exclusion is not present (Article 83 lit. G BGG). The amount in dispute requirement of 15,000 francs is readily met (Art. 51 para 1. A, Art. 85 para 1. BGG b). The appeal is admissible.
According to article 42 paragraph 2 BGG is set out in the complaint in summary form, how the contested Current law violated. In this sense, what follows:
1.1. The recurrent ago, both the personnel appeals committee, as also raised on appeal before the Administrative Court, the dismissal was motivated by a bullying situation by his boss and former colleague, G. Jeno, for reasons that could not understand it, a real pressure situation built, which culminated in that it's in a meeting expressed statement, he is currently doing research on bullying case Tschanun, this used to generate a real threat scenario, nota bene, even subconscious reference to non-existent simply Drohmails alleged by the complainant, which meant that the entire apparatus of repression was being driven by first emergency psychiatrist to have with the task of FFE and then called out the anti-terrorist unit of the recurrent and barracuda was placed in custody. nota bene, even though the second property in this meeting person, Peter Gross, has stated from the beginning that he had not this passage, understood as a threat and was engaged by G. Jeno against the complainants in the prosecution because even without a further and the recurrent one satisfaction has been pronounced. The abuse of termination may accordingly result not only from the termination motifs, but also from the way as the terminating party exercises their right. Even if one party is legally declared dismissal, they must observe the commandment friendly legal exercise. You can drive in particular, no false and hidden game that good faith is contrary to crass (BGE 131 III 535 E. 2.4 p. 538 f., 125 III 70 E. 2b, p. 73, p. 118 II 157 E. 4b/bb 166 f.). A blatant breach of contract behavior, including a serious breach of privacy in the context of a termination can this be unfair to appear. These federal judicial precedents is a concern for private law employment relationships, but can be applied by analogy to the present public-sector employment.
with the untenable assertion of the appointing authority Gaby Jenö of 07/06/2006, which is massively recurrent self-and foreign-hazardous, is the personality of the complainant were massively violated. The false accusation of the appointing authority on 11.8.2006, which assumes that the recurrent threats to have been made and compared with the gunman Tschanun Gunther is clearly a false and hidden game that good faith blatant contradiction to appear. The appointing authority shall indicate in the note of 14/03/2007 to himself that the recurrent has never threatened her. Accordingly, the appointing authority with their unlawful criminal complaint for alleged threat, which the disastrous use of the special unit led barracuda, violates the privacy rights of the recurrent massive intentional.
Termination turns out because of a breach of the principle of acting in good faith in accordance with Article 9 BV therefore already covered this aspect as unfair and unfounded, according to § 39 paragraph 2 of PG, which approval must be made of the complaint. In addition, the lower court has in no way concerned with the complainant's themed and set out bullying situation, which is a violation of due process and human dignity and thus constitutes a violation of Article 7 and 29 paragraph 2 BV. The complainant has the right to have one is dealing with his arguments. also be made from this point has Approval of Board of
1.2 The lower court holds in point. 5.2 of the ruling further correctly notes that the credit transfer can assess psychiatric, a serious intrusion in the privacy of that meeting as a fundamental right procedure, the known conditions do, especially so on a statutory basis and that present themselves as relatively needs. It is correct to say that such a trust medical examination are fixed in a law in the formal sense, that is according to § 21 Personal Law (PG) happened. The lower court is but is now on the view that the transfer itself, had not been introduced by means of disposal. This follows from § 24 of PG, which provides only two cases available, namely the reference case of a change of workplace. This interpretation of the canton's law is factually untenable and therefore arbitrary. controls from that provision, which measures during the employment relationship is, rather, that as soon as this measure reaches a certain sharpness, are responding with just a must have. Now it seems evident that the instruction to seek psychiatric assess, at least as strong if not even more intense in the area of fundamental rights engages as a written reprimand or transfer of the workplace. Contrary to the lower court, it behaves accordingly, just so that the provision in question is proof that just had the transfer with an order must be imposed. It also changes the decision in December 2007 nothing, here is ultimately not up for debate.
1.3 The lower court is in point. 5.5. the sentence on that in its decision dated 18th December was held in 2007 that an instruction is by the appointing authority, and not to be adopted by the District physician and that the complainant had received so far in those days law, and its current argument, the District of doctor have had a psychiatric assessment must seem strange. This reasoning of the lower court is factually untenable and therefore arbitrary within the meaning of Article 9 BV. The reason for the approval of the Board in December 2007, namely that the transfer of the appointing authority, to be examined by the District physician, not connected with the threat was that otherwise are terminated, and not the fact that the referral by the appointing authority must take place. In addition, now existed a very different situation: The complainant is the transfer, followed by the Canton investigate the doctor. Now if this comes to the conclusion that further investigations are necessary, they must logically - to dispose of it from this, and not by the appointing authority - contrary to the lower court. What it will be strange, is not traceable.
1.4 The lower court is further of the opinion that no breach of due process because the complainant had not the person of the expert can express (section 5.6 rating). This is because he does not want to leave anyway survey, which could see from his order to report Dr. Westdijk no use and it was not in a criminal proceeding. This argument is untenable. As indicated previously, it is in the transfer, to seek psychiatric survey, a serious encroachment on the rights of individuals. This was all the more so as that the complainant undisputedly written by any medical person is incapable of working. The previous instance of the argument put forward in this regard, no issue was the inability to work, but the ability to work may be referred to in such circumstances as Kafkaesque. Someone who has no medical diagnoses striking, the check can not even respect for work. Contrary to the lower court, it would be under these circumstances was absolutely necessary that the complainant, the person of the expert and the question could express this in particular taking into account the fact that the complainant having regard to the appointing authority as wholly disproportionate to the designating interference in his personal liberty quite rightly some concern to the independence allowed to attach to that authority be offered psychiatrist . Finally, it should be noted that it does not correspond to the facts that the recurrent OF ANY psychiatric examination denied. This shows already initiated by his own opinion Dr. Westdijk. What the complainants only want is to have a say in the determination of the medical officer what is otherwise from the name of the medical results. So there is in casu a violation of Article 9 BV.
In summary therefore shows that, contrary to the lower court has already set aside the dismissal on procedural grounds.
1.5 The same applies for material reasons. Although it may be true that the administrative court in the context of the decision of 18 held in December 2007 by the way, has that could be considered having regard to the circumstances of this time, a health investigation as appropriate. Note, however, that in time to vote approval of the complaint was made and the complainant had no cause against the motives address of the Judgement in this regard and have not been oriented to time by his lawyer. In point. 6.1 of the present appeal verdict accepted text of the Judgement of 18 December 2007 to qualify as well: It is a fragmentary list of incidents that are judged subjectively. For example, that a large proportion of parents had backed the complainant, the sake of convenience. In addition, looking at the situation in 2006 should lead to his eye. The pressure that weighed upon the complainant has been increased steadily and reached its climax with the work initiated by G. Jeno storming of the property by the special unit "Barracuda" and the arrest of the complainant. That thereafter the complainant, who is blameless for decades in government service for a short time had difficulty to classify the events correctly, this is perfectly understandable and was described by Dr. Westdijk as absolutely normal. Even the prosecutor of Basel-City has recognized that has been here a sledgehammer to crack a nut and has the complainant focused on the following grounds for moral damages:
"In the present case can not lose sight of you because of media interest in your" case been "involved in perhaps a greater extent in your personal circumstances than others that are also implicated result in a prosecution. Also provide the circumstances of their detention and no doubt linked to this rumor in her neighborhood a drastic effect on your mental integrity; as such, alignment of an additional satisfaction appears due to the particular starting position as justified. "
Contrary to the lower court was therefore from the time the first call the instruction, to undergo a medical examination, disproportionate and therefore not good, resulting in termination in those days appear to be unfounded in the sense of § 30 in conjunction with § 39 PG. Finally, it should be mentioned that it is of course not sufficient for the handling of the complainant should be "difficult" now, it is still here to conflict situations that may apply to be absolutely normal. Also, the fact that the complainant declared themselves as victims of bullying may not lead to a conclusion of mental illness, especially since the complainant is objectified onerous pressure situation with the previously mentioned disproportionate excesses.
6.1 Contrary to the previous instance in point. 6.2 of the ruling applies especially in today's date. The complainant added that after the first verdict of the trust medical examination made. He also has the occasion of the first hearing by the Administrative Court of the proposed way for you to clarify namely, psychiatric, followed. This created a designated specialist opinion may not notice any mental abnormalities and has always relied on the report regarding Dr. player delusions also denies medically. In addition, the medical officer also notes in his report that the complainant was a normal conversation was possible. He also does not detect mental disorders. That there appears to be arbitrary to insist upon these premises, the complainant must be fit prove positive, was carried out in advance already. Factually untenable in this context is the argument of the lower court, the complainant mix the question of the FFE's with the need for psychiatric evaluation. Which is any way Sun What the complainant is showing that even in this time of intense pressure situation of specially drawn botene emergency psychiatrist to discover, any foreign or self-endangerment, and therefore saw no way to have an FFE. This is of relevance because the appointing authority, contrary to the diagnosis of the emergency psychiatrist regularly justified by a foreign threat and thus their own amateur diagnosis instead of the medical Diagnosis is in terms of course and does not overrun its discretion. The same applies to the supposedly as conclusive designated conclusion of the District of physician: It is factually untenable, if this is despite the lack of danger to others, despite exculpatory statements by Dr. Westdijk and despite the lack of own observations related to mental disorders further psychiatric investigation processes, but in these circumstances a priori not be necessary to the investigation of the Canton doctor and it seems likely that the complainant also in this respect may feel needs that have existed in this regard must be an agreement. Arbitrary Next is the lower court when the individual fragments - in advance for them as indicated without declared - tear Dr. Westdijk opinion out of context and points out, even this had confirmed that the complainant had not developed adequate processing strategy. The only thing that writes Dr. Westdijk is that by the conduct of state authorities in casu the complainant had incurred irreparable damage. This is however based on the now already several times indicated exercise testing, which the complainant was subjected to quite understand. Factually untenable and arbitrary, the reasoning of the lower court is finally, if reasonable, the Situation had worsened since the last hearing yet, which, in the BLOGS from the complainant and the fact that even now he considered related parties, like his father, as an opponent. Regarding the latter, so these are simply a - not, significantly, unsubstantiated - assumption. The blogs are on the other hand still remained the last chances to illustrate his desperate situation and process, meaning it can be noted, moreover, that the complainant is well placed to develop processing strategies. That this strategy in acknowledging the opinion of the appointing authority and the lower court is, this may well not be. Contrary to the lower court so that was the insistence not mounted on a carrying out a psychiatric assessment and there was a vexatious, and even a breach of good faith are illegal, law practice, so the termination also under this aspect as ill-founded within the meaning of § 30 in conjunction with § 39 PG appears.
1.7 Also what the seriousness of the violation and the reasonableness of the terms of continuing the employment relationship, the corresponding argument of the lower court pursuant to 6.3 of the ruling is arbitrary. It should be stressed in this respect once again that the complainant of the referral to the appointing authority shall be followed and medical office commissioned a study. Of a breach of duty, which amounts to a refusal to work, can therefore be no question. That the complainant was, however, entitled to defend themselves against the infringement of personal rights and the prohibition of arbitrary Performing disproportionate referral to seek psychiatric survey, this has been demonstrated previously. Cooperation can only be requested if the transfer is lawful (see Rehbinder, supra, note 36 on Article 321d OR; MARIE-LOUISE tribe, the transfer of the employer and its limitations, Thesis Basel 1977, p. 116 ff .), and therefore not contain obligations that go beyond the contractual framework (SCHÖNBERGER / STAEHELIN, Zurich Commentary, N. 14 to Article 321d OR; REHBINDER, supra, N. 38 to Article 321d OR; WYLER, Droit du travail, p. 97 f.; MARIE-LOUISE PARENT, supra, p. 67 f.), nor violate the personal rights of the employee (Federal Court of 4C.357/2002 of 4 . April 2003, E. 4.1; SCHÖNBERGER / STAEHELIN, supra, n. 18 f. to Article 321d OR; STREIFF / von Kaenel, Guide to the Labour Contract Law, 5th edition 1992, N.3 to Article 321d CO). That the recurrent, even in this time has little confidence in his employer, may apply, but has no influence on the question whether a continued employment appears unreasonable. In fact the time in which the concerns of the complainant is entitled is finally adhered to, and therefore annulled the dismissal and the complainant will be allowed back to his work, in which time the complainant's trust in government authorities to return and he will investigate how more than 20 years before his leave, without blame his profession . The reasoning of the lower court that the appointing authority, a position not imagine could, because the trust was destroyed, would lead ultimately to the fact that every employee of the Canton of Basel-Stadt, who rebel against instructions and orders of the appointing authority, referred to as Report should be, so that the corresponding Appeal would ultimately useless, what can not be. The decision turns on this point so lit to be factually untenable and arbitrary and contrary to § 30 paragraph 2. d PG.
are factually untenable and arbitrary 1.8 the observations of the lower court hearing on the issue of the CD recording of the conversation with Dr. player. Apart from the fact that the complainant doubted that the Court of the CD has heard enough, there in the negotiation of the related evidence application has been assessed with a single word, it is to say simply absurd, not the events in autumn 2006 are key, but the during the whole of last years. The opposite is the case. In the fall of 2006, the pollution situation by the appropriate interventions for the complainant and more unbearable, and yet it has succeeded during the visit of Dr. players, nota bene, along with a police officer to preserve the text and the conversation consistently clean at one end to lead what may well be described as remarkable. Nevertheless, this call is used, both by the appointing authority, and by the lower courts repeatedly as a reason for now to be discussed further measures.
is factually untenable, finally, the justification of the annulment of the dismissal on procedural grounds the Administrative Court in December 2007 was the complainant in accordance with § 30 para probation First 3 PG has been set (para 7.2 of the appeal). Besides the fact that he referred to the lower court proved by itself at the medical examination prepared stated that the complainant had in good faith in any way assume that the approval of his this time, recourse must be understood as a probation period in the above sense. § 30 para 23 PG is therefore violated.
is finally noted that the exemption can be seen from the opposite point 7.3 of the appeal anywhere, on condition that the clarification of the ability to work has taken place. The complainant was the opposite - without any prior medical diagnoses would have been available - free of all duties and responsibilities so that he could, consequently, did not call for a psychiatric assessment be imposed. Contrary to the lower court, the complainant argued for in casu not contradictory: the general presumption of work ability has been medically disproved at any time. That the complainant's work force has deployed to it, which is recognized by the lower court.
summary, contrary to the contested decision in the above sense repeatedly violate public law and is factually unsustainable and therefore arbitrary, and that the present complaint shall be approved.
II Subsidiary constitutional complaint
first At the express request of the complainant is in the other - in the event that the amount in dispute is not reached for a complaint in matters of public law, contrary to expectations the principal types - subsidiary filed a constitutional complaint. According to Article 118 of BGG is the Federal Constitutional Court in the assessment of complaints to the facts found by the lower court committed in principle. Means of appeal should also be set out in summary form, how the contested decision Rights violated. As part of the constitutional complaint the judge applies the law does not ex officio, so to complain accordingly is why the decision appealed against constitutional rights violated. The complaint in this sense, what follows, with the complainant allowed to refer to some remarks on priority, to avoid repetitions langfädige:
1.1 Personal Freedom (article 10 paragraph 2 BV)
a referral to seek psychiatric assess , an intervention in the fundamental right of personal liberty dar. Such intervention must be proportionate among others. Based on the fact that the original reason for the initiated measures, namely an alleged threat was proven not met, the corresponding transfer is not proportionate (See B I./1.1 prior to 1.4).
1.2 Willkürverbot / good faith (Article 9 BV)
with the untenable assertion of the appointing authority Gaby Jenö of 06/07/2006, which is massively recurrent self-and foreign dangers, it is the personality of the complainant's been massively violated. The false accusation of the appointing authority on 11.8.2009, which assumes that the recurrent threats to have been made and compared with the gunman Tschanun Gunther is clearly a false and hidden game that good faith is contrary to crass to call. The appointing authority shall indicate in the note of 14/03/2007 to himself that the recurrent has never threatened her. Accordingly, the appointing authority with their unlawful criminal complaint for alleged threat, which led to the disastrous use of the special barracuda, violates the privacy rights of the recurrent massive intentional. This behavior is contrary to the principle of acting in good faith in accordance with Article 9 BV (See I. B / 1.1voarb). Objectively
untenable and therefore the decision is arbitrary in that it is stated that the instruction to seek psychiatric assess, not Available form is adopted. This is because action is taken by the core area of individual rights which the complainant with an original in this regard must be entitled to review possibility. This is especially true because of less and adopt far-reaching instruction according to § 24 para 2 PG available in the form (see B I./1.2 advance).
the contested decision is arbitrary and continued in that jurisdiction may be derogated provided a further medical examination by the doctor for the District of appointing authority, after the Canton doctor already performs the basic analysis (see B I./1.3. Advance)
Factually untenable and the decision is arbitrary so far as is noted the applicant's conduct in 2007 and 2008 makes it more appropriate to have him examine psychiatric. The behavior is unique to this time - not the complainant's self-generated - pressure situation by the appointing authority to declare, in this regard is the principle of good faith violated, same applies to the claim that (see B and 1.6 I./1.5 advance).
is factually untenable and arbitrary on the conclusion that the continuation of the employment relationship is the appointing authority, therefore, not reasonable because the Complainant in his critically BLOGS lost confidence in the external and AACC obvious (See point B/1.7 advance)
objectivity is untenable, finally, the reason given by the - by the judgment 17 - Approval December 2007 was the complainant the statutory probation was first recognized. The same applies to the claim that the exemption was expressly on the condition of an assessment have been provided, so the complainant could not take the position that he had been relieved of all duties and obligations, and thus of an assessment. Both can not be in the lower court records cited by the pieces namely, the ruling of 17 December 2007 and the undated exemption available to be seen. (See point. BI/1.9 and 1.10)
1.3 Legal hearing (Art. 29 BV)
The lower court has been involved in any way with the complainant's themed and set out bullying situation, which is a violation of due process and human dignity and thus constitutes a violation of Article 7 and 29 paragraph 2 BV. The complainant has the right to have one is dealing with his arguments. Also under this aspect has to be approval of the Board (see B I./1.1. Advance)
Further, the right to be heard by injured when the plaintiff no opportunity given to comment on the person of the assessor and the review topic, although the lower court itself acknowledges that the transfer is to a psychiatric examination prove a serious violation of the fundamental right to personal liberty (See B I./1.4. advance)
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