Judgment No. 4695
Decision
1. The decision of the Director General of Eurocontrol of 7 December 2020 and the decision of the Head of the Human Resources and Services Unit of 26 November 2019 are set aside.
2. Eurocontrol shall pay the complainant material damages in the amount of 24,687.56 euros.
3. It shall also pay him 8,000 euros in costs.
4. All other claims are dismissed.
Summary
The complainant challenges the decision requiring him to reimburse the undue payments of salary he received during absences that were declared to be unjustified by the Administration.
Judgment keywords
Keywords
complaint allowed; recovery of overpayment; unauthorised absence; refund
Consideration 2
Extract:
Eurocontrol submits that the complaint is irreceivable because the complainant did not comply with the requirements under Article VII, paragraph 1, of the Statute of the Tribunal to exhaust the internal means of redress available to him as a former official of the Organisation. However, the Tribunal notes that, pursuant to the last sentence of Article 92(2) of the Staff Regulations, an implied decision rejecting the complainant’s internal complaint, challengeable before the Tribunal, arose on the expiry of four months from the date on which that internal complaint was lodged, namely on 17 June 2020. Therefore, on 15 September 2020, the date on which the complainant filed his complaint with the Tribunal, the internal means of redress available to him had indeed been exhausted. The complaint is therefore receivable and the objection to receivability raised by the Organisation will be dismissed.
Keywords
receivability of the complaint
Consideration 3
Extract:
After the complainant had filed his complaint with the Tribunal, an express decision was taken by the Director General on 7 December 2020 rejecting his internal complaint of 17 February 2020. In his rejoinder, the complainant therefore also challenges that decision.
Since the parties have had ample opportunity to comment in their submissions on the express decision to reject the internal complaint in question, the Tribunal considers it appropriate to treat the complaint as being directed against that decision.
Keywords
impugned decision
Consideration 4
Extract:
The complainant [...] requests an oral hearing. However, the Tribunal considers that the parties have presented sufficiently extensive and detailed submissions and documents to allow it to be properly informed of their arguments and the relevant evidence. The request for an oral hearing is therefore dismissed.
Keywords
oral proceedings
Consideration 11
Extract:
[I]t is established case law of the Tribunal that the reasons for a decision must be sufficiently explicit to enable the person concerned to take an informed decision accordingly. They must also enable the competent review bodies to determine whether the decision is lawful and, in particular, the Tribunal to exercise its power of review (see Judgment 4467, consideration 7).
Reference(s)
ILOAT Judgment(s): 4467
Keywords
motivation
Consideration 11
Extract:
[T]he Tribunal has repeatedly confirmed that a staff member must have access to all evidence on which an authority bases or intends to base its decision against her or him (see Judgments 4412, consideration 14, and 2700, consideration 6). In Judgment 4587, consideration 12, the Tribunal stated that the failure to communicate important documents to a staff member before a decision is taken against her or him is a breach of the complainant’s rights to proper due process, noting in particular the following:
“[It] disregarded the rights of the complainant to proper due process in terms of communication of documents. The case law of the Tribunal establishes that, as a general rule, a staff member must have access to all evidence on which the authority bases (or intends to base) its decision against her or him. Under normal circumstances, such evidence cannot be withheld on grounds of confidentiality (see, for example, Judgment 2700, consideration 6; see also, on the issue of breach of due process, Judgment 4412, consideration 14).”
The complainant’s first plea is therefore well founded. This breach by the Organisation of the complainant’s rights to due process vitiates the decision of the Head of the Human Resources and Services Unit of 26 November 2019 on which the impugned decision of 7 December 2020 was based, which renders both these decisions legally flawed.
Reference(s)
ILOAT Judgment(s): 2700, 4412, 4587
Keywords
disclosure of evidence; due process
Considerations 16-18
Extract:
[T]he Tribunal considers that the Organisation is mistaken in maintaining that it never sought to apply that provision of the Staff Regulations on the facts, since that was the only provision of the Staff Regulations that could apply to this situation. [...]
It is clear from these assertions that the Administration knew that it was following a procedure which did not exist anywhere in the Organisation’s rules and which it was, therefore, unable to impose on an official without first informing him of the relevant parameters, where applicable. The Tribunal considers that Eurocontrol cannot justify its conduct, as it attempts to do in its submissions, by arguing that what occurred was ultimately done for the benefit of the complainant since “a strict application by [the Organisation] would have had harsher consequences for [him]”, which, in any event, has not been established.
Since the Organisation breached its own rules by ignoring the procedure laid down in Article 59(1) of the Staff Regulations before concluding that the complainant’s absences due to sickness during the period concerned were unjustified, this second plea is also well founded and renders both the impugned decision and the decision of 26 November 2019 legally flawed.
Keywords
patere legem
Consideration 19
Extract:
The complainant claims that the Organisation should also pay him moral damages of 20,000 euros for “recklessly calling into question his good faith in a way likely to cause serious harm to his honour and reputation”. However, the Tribunal has on many occasions reiterated that, in relation to damages, the burden of proof falls on the complainant, who must establish the injury complained of. In the present case, the complainant has not adduced any specific evidence of this alleged harm to his honour and reputation.
Keywords
moral injury
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