Judgment No. 4639
1. The decision of the Vice-President of Directorate-General 4 of 21 August 2018, and the decisions of 23 May 2014 and 27 August 2014, are set aside.
2. The complainant shall be credited with three days of leave, as indicated under consideration 9 of the judgment.
3. All other claims are dismissed, as is the EPO’s counterclaim.
The complainant challenges the refusal to convert three days of statutory leave into days of sick leave.
complaint allowed; sick leave
Under the Tribunal’s case law, it is a basic rule of interpretation that words are to be given their obvious and ordinary meaning and that words must be construed objectively in their context and in keeping with their purport and purpose (see, for example, Judgments 4066, consideration 7, 4031, consideration 5, or 3744, consideration 8).
Should an ambiguity remain in the relevant provision after this method of construction is applied, the regulations or rules of an international organisation must in principle be construed in favour of the interests of its staff and not those of the organisation itself (see, for example, Judgments 3539, consideration 8, 3355, consideration 16, 2396, consideration 3(a), 2276, consideration 4, or 1755, consideration 12).
ILOAT Judgment(s): 1755, 2276, 2396, 3355, 3539, 3744, 4031, 4066
Specifically in respect of whether the possibility to convert days of statutory leave into days of sick leave is conditional on immediate notification of incapacity on health grounds, the Tribunal observes that the reason behind the employees’ duty to inform the Office of their incapacity for health reasons on the first day of the resultant absence is obviously to allow the Administration to plan as well as possible to deal with the unexpected absence and thereby minimise its negative impact on the Organisation’s functioning. Consequently, while it is easy to understand the need for a requirement to provide immediate notification in the case governed by aforementioned Article 62(2) of the Service Regulations during a period of ordinary activity when the employee is generally expected to be at work, save in special circumstances little point can be seen in this requirement in the situation referred to in paragraph 4, where the employee is on annual or home leave when she or he becomes unwell. In that situation, allowance has already been made for the employee to be absent on the corresponding dates in any case, and the fact of her or him becoming incapacitated has no practical consequences for the functioning of the organisation. The notification of sickness to the Office has no effect other than to allow it to alter the employee’s leave balance retrospectively, which does not require that the information be provided immediately.
medical certificate; sick leave
Since [...] that practice cannot be regarded as contrary to the applicable provision, the Office was required to apply it to the complainant in the same way as to other employees concerned (see, in particular, Judgments 2936, consideration 16, 2907, consideration 22, or 1053, consideration 6).
ILOAT Judgment(s): 1053, 2907, 2936
As a counterclaim, the EPO has asked that the complainant be ordered to pay it the sum of 100 euros as a symbolic portion of its legal costs on the grounds that the complaint is an abuse of process. However, the mere fact that the complaint has for the main part been allowed by the Tribunal precludes it from being considered open to such criticism.
Admittedly, the Organisation does not contend in the present case that the complaint is improper on account of its actual content but that the complainant did not have a legitimate reason for filing it since she was offered an amicable settlement. However, and as the EPO itself notes in its submissions when criticising the complainant for having disclosed the existence of that offer in the present proceedings, the Tribunal cannot take account of information concerning any negotiations – which are inherently confidential – conducted by the parties with a view to settling a dispute before it amicably (see Judgments 4457, consideration 2, and 3586, consideration 5). Hence it could not, in any event, issue orders on the basis of such information.
ILOAT Judgment(s): 3586, 4457