Judgment No. 3369
1. The decision of 3 November 2010 by the Vice-President in charge of Directorate General 4 is set aside to the extent that it maintained the amount of the strike-related deduction from the complainant’s remuneration for the month of June 2007 at a level exceeding one-thirtieth thereof.
2. The EPO shall reimburse the complainant, owing to the setting aside of the decision under point 1, the sum unduly withheld from the said remuneration.
3. The EPO shall pay the complainant 2,000 euros in moral damages.
4. It shall also pay her 1,000 euros in costs.
5. All other claims are dismissed.
6. The applications to intervene are dismissed.
The complainant impugns the application of deductions to her dependant’s allowance for participation in a strike and the amount deducted from most elements of her remuneration.
complaint allowed; deduction; right to strike; strike
"[T]he complainant is manifestly misguided in her belief that she can accuse the members appointed by the Staff Committee of failing to defend her during her hearing before the Committee, since those members, who are required just like other Committee members to execute their duties in a fully independent manner, cannot be expected to perform such a role."
internal appeals body; independence
"[T]he decision taken by the EPO to apply a deduction of one twenty-fourth was due to the calculation, based on arithmetically irreproachable principles, that the complainant had absented herself, while participating in an eight-hour strike, for a period equivalent to 1.25 of her average working day, having regard to the specific terms of her part-time employment regime. In so doing, the EPO sought to implement an approach based on proportionality which led it to conclude, as stated in its submissions, that the remuneration of an employee who is absent due to a strike must be reduced by an amount equivalent to the duration of such absence as a proportion of the employee’s normal working hours.
Such an approach is certainly quite understandable in terms of equity and expediency. However, the Tribunal is bound to observe ...] that this approach is legally inconsistent with the applicable statutory provisions, which are based on a different perspective in this regard."
"The Tribunal has consistently held that any ambiguity in the regulations or rules established by an international organisation should, in principle, be construed in favour of staff and not of the organisation (see, for example, Judgments 1755, under 12, 2276, under 4, or 2396, under (a))."
ILOAT Judgment(s): 1755, 2276, 2396
"[The Tribunal] has already ruled that the various allowances paid by the EPO to its employees, including the dependants’ allowance, are in fact subject to a deduction in the event of a strike under the same conditions as the basic salary (see Judgments 1041, under 3 and 4, and 1333, under 3, also referred to on this issue in Judgments 1567, under 4, and 1658, under 6).
Noting that, according to paragraph 2 of Article 64 of the Service Regulations, “[r]emuneration shall comprise basic salary and, where appropriate, any allowances”, the Tribunal held that the “remuneration” referred to in aforementioned subparagraph 1(b) of Article 65, from which deductions may be made, must perforce be understood as including such allowances.
Moreover, the fact that the dependants’ allowance consists of a lump sum is not in itself sufficient to exclude it from any application of the principle, embodied in the Tribunal’s case law, according to which remuneration is due only for services rendered (on this point see Judgments 566, under 3, 615, under 4, and 616, under 4)."
ILOAT Judgment(s): 566, 615, 616, 1041, 1333, 1567, 1658
"Applications to intervene were filed by three EPO employees. [...] It may be deduced from the defendant’s comments that the three employees in question have never worked on a part time basis. As their situation in fact and in law thus differs from that of the complainant, the present judgment cannot affect them. It follows that the applications to intervene must be dismissed as irreceivable (see, for example, Judgments 2190, under 10, 2237, under 10, or 3212, under 11)."
ILOAT Judgment(s): 2190, 2237, 3212