Judgment No. 4415
1. The impugned decision of 12 December 2017 is set aside.
2. The EPO shall pay the complainant 80,000 euros as material damages.
3. It shall pay the complainant 40,000 euros as moral damages.
4. It shall also pay the complainant 8,000 euros in costs.
5. It shall remove from the complainant’s personnel file all evidence of and reference to the disciplinary proceedings and the disciplinary measure.
6. All other claims are dismissed.
The complainant contests the decision to impose upon him the disciplinary measure of dismissal for misconduct.
complaint allowed; decision quashed; termination of employment; misconduct; health reasons; disciplinary measure; medical grounds
In appropriate cases, the health of a staff member who is the subject of disciplinary proceedings can be a mitigating factor (see, for example, Judgments 4051 and 3602) but not always (see, for example, Judgment 1984). It was in the present case. The need for the complainant to have recourse to medicinal cannabis is certainly relevant to the first set of charges. The meaning of the emphasised words in consideration 9, above, is far from clear. But their import appears to be that the complainant would have been aware of the consequences of his actions, notwithstanding his medical condition, the pain it generated and the need to lessen or eliminate that pain. But his medically sanctioned recourse to medicinal cannabis plainly feeds into the question of the degree or extent of his culpability for attending the EPO premises under the influence of that drug and, indeed, consuming or storing that drug on those premises.
Jugement(s) TAOIT: 1984, 3602, 4051
mitigating circumstances; health reasons; disciplinary measure
The approach taken by the President to the question of the relevance of the complainant’s health and whether there were any mitigating circumstances or factors was significantly flawed. The impugned decision rejecting the request for review of the decision to dismiss the complainant for misconduct will be set aside.
mitigating circumstances; health reasons; disciplinary measure; final decision
The complainant seeks an order of reinstatement. It is inappropriate to make such an order. The Tribunal accepts that the complainant’s conduct is likely to have seriously compromised the trust between him and the EPO. To make an order reinstating the complainant would place both the complainant and the Organisation in a position where the material conduct founding the charges, or similar conduct, might be repeated. Additionally, the complainant himself admitted in his complaint brief that his illness has “dramatically impacted upon his ability to carry out his tasks as an employee of the EPO”.
Because of his dismissal, [the complainant] lost the opportunity at a young age to continue in employment with the EPO or to end his employment more favourably to him, including by obtaining an invalidity pension. Accordingly, material damages for this lost opportunity are assessed in the sum of 80,000 euros.
[T]he evidence of and reference to the disciplinary proceedings and the disciplinary measure [will] be removed from [the complainant's] personnel file.
order; personal file