Judgment No. 4433
1. The decision to make a salary deduction pursuant to Article 65(1)(d) is set aside and the EPO shall repay the complainant the amount so deducted.
2. The EPO shall remove the letter of 9 July 2013 from the complainant’s personnel file.
3. The EPO shall pay the complainant moral damages in the amount of 4,000 euros.
4. The EPO shall pay the complainant 800 euros costs.
5. All other claims are dismissed or are moot.
The complainant challenges the decision to treat his participation in a strike as an unauthorised absence.
complaint allowed; decision quashed; salary; deduction; unauthorised absence; right to strike
[T]he definition of strike in Article 30a is descriptive of conduct (a collective and concerted work stoppage) and does not raise for consideration whether that conduct arose as a result of the procedures for calling a strike being followed. The complainant was on strike within the normal conception of that term. He was on strike as defined in Article 30a. Accordingly, he was on strike for the purposes of Article 65(1)(c). An adjustment to his salary should have been made under this provision. What he did was engage in a lawful activity albeit one that resulted in a deduction from salary. It should not have been stigmatised as an unauthorised absence from work and a deduction from salary made on that basis.
unauthorised absence; right to strike
The second and alternative basis on which the deduction was unlawful, arose from the erroneous view of the EPO that there had been no lawful strike because there had been no vote in accordance with paragraph 3 of Circular No. 347. That is to say, there was no vote of employees office-wide or at sites concerned by the strike. But that provision is itself unlawful (see Judgment 4430, consideration 16). That is because it significantly derogated from the fundamental right to strike, recognised by this Tribunal as something employees are lawfully entitled to do (see Judgments 615, consideration 6, 2342, consideration 5, and 2493, consideration 11).
Jugement(s) TAOIT: 615, 2342, 2493, 4430
right to strike
[T]he threat just referred to did involve an attempt to intimidate the complainant, aggravated by the adoption by the EPO of an erroneous interpretation of its own normative legal documents. It involved an attempt to stifle, by threat, the exercise of the lawful right to strike. The complainant is, for this, entitled to moral damages assessed in the sum of 4,000 euros.
moral injury; right to strike; threat