Judgment No. 3887
1. The decision of 21 November 2013 is set aside in the part regarding confirmation of dismissal for misconduct in accordance with Article 93 of the Service Regulations, as is the same part of the decision of 6 September 2013.
2. The case is sent back to the EPO in accordance with consideration 13.
3. The EPO shall pay the complainant 20,000 euros in moral damages.
4. All other claims are dismissed.
The complainant contests the decision to dismiss him, for misconduct, with immediate effect and with reduction of pension entitlements.
complaint allowed; decision quashed; case sent back to organisation; misconduct; health reasons; disciplinary procedure
The EPO raises the question of the receivability of the present complaint, noting that the complainant insists on impugning the Presidentís decision of 6 September 2013 instead of the actual final decision of 21 November 2013. The Tribunal finds that as the complainant filed a request for review of the 6 September decision in accordance with Article 109 of the Service Regulations and has received the final decision of 21 November, which is included in the documentation provided in this case, it may treat the complaint as impugning the actual final decision of 21 November 2013.The complaint is therefore receivable.
receivability of the complaint; final decision
The complainantís refusal to fulfill his obligations with regard to his work as an examiner is well-established. However, the Presidentís decision to dismiss the complainant under Article 93(2)(f) of the Service Regulations is vitiated by the fact that neither the President, nor the Disciplinary Committee could have made a proper assessment of the allegations without taking into account whether the complainant acted intentionally, and in control of his faculties, or if the complainant suffered from a mental illness that prevented him from behaving in accordance with his obligations as a permanent employee.
intention of parties; termination of employment
[I]n the absence of an expert psychiatric opinion that the complainant was not suffering from a psychiatric illness, it would be unlawful for the President to dismiss the complainant for misconduct, which, in this case, involves intentional behaviour, though he plainly could for unsatisfactory service.
misconduct; health reasons
The complainantís assertion that there was a lack of duly established delegations of authority is unsubstantiated. The complainant has not provided any evidence showing that any official had acted ultra vires.
burden of proof; delegated authority
Considerations 13 and 16
[T]he principle of due process and the duty of care require the Disciplinary Committee, in accordance with Article 101(3) of the Service Regulations (which provides that "[i]f the Disciplinary Committee requires further information concerning the facts complained of or the circumstances in which they arose, it may order an inquiry in which each side can submit its case and reply to the case of the other side") to order a medical assessment of the complainant by an expert, and the convening of a Medical Committee if necessary. The medical expert(s) shall also take into consideration all documents in the file submitted to the Tribunal.
The case must be sent back to the EPO which will order a medical assessment of the complainant and, if necessary, the convening of a Medical Committee.
case sent back to organisation