The background to the complaint

1. On 16 November 1992, the complainant signed a work contract with the European Commission. The contract was concluded for an indefinite period and was governed by Belgian law. The complainant was employed as a cook in one of the Commission's nursery schools up to 2011, when the Commission terminated his contract. The complaint concerns the manner in which the Commission did so.

2. On 5 August 2004, the complainant went on sick leave. He subsequently underwent several medical examinations and his medical leave was successively prolonged. In January 2005, his doctor stated that he could return to work as from February 2005 but that he should avoid carrying weights of more than five kilos due to his health condition. In February 2005, the relevant Belgian authority certified that he was not fit to work at all and he remained on sick leave.

3. In 2005, in accordance with the provisions of the new Staff Regulations, the Commission offered contracts as contractual agents to those members of its staff whose work contracts had previously been governed by national law. On 27 April 2005, the Commission informed the complainant that it could not offer him a contract agent position because its medical officer considered that he was not physically fit to perform his duties as a cook. He was informed that he could challenge the medical officer's view before a Medical Committee comprising three doctors.

4. On 4 October 2011, the Commission informed the complainant that it had decided to end his work contract as from 1 November 2011. It also informed him that his financial entitlements deriving from the termination of his contract were calculated according to Belgian law.

5. The complainant reacted by letter of 11 October 2011. On 30 March 2012, he turned to the European Ombudsman.

The subject matter of the inquiry

6. In his original complaint, the complainant submitted the following allegations and claim.

Allegations

(First) The Commission failed to reply to the complainant's letter of 11 October 2011.

(Second) The Commission's dismissal of the complainant was unfair.

Claim

The Commission should pay the complainant the compensation it promised and provide him with the certificate he requested.

7. In his observations, the complainant raised a new argument relating to the second allegation and concerning the fact that the Commission informed him in 2005 that he could not be offered a contractual agent contract. The Ombudsman will deal with the new argument in this decision because he has at his disposal sufficient evidence to review it and both parties are aware of that evidence.

The inquiry

8. On 24 April 2012, the Ombudsman opened an inquiry. As an initial step in the inquiry, his services contacted the Commission's services and asked them whether they could reply to the complainant's letter of 11 October 2011.

9. On 27 April 2012, the Commission forwarded to the Ombudsman's services a copy of the reply that was sent to the complainant on that same day. In that reply, it recalled that, on 14 October 2011, it had already replied to the complainant's letter of 11 October 2011.

10. The Ombudsman invited the complainant to submit observations on the Commission's above reply. The complainant did so on 5 May 2012.

11. On 31 May 2012, the Ombudsman asked the Commission to submit an opinion on the complainant's allegations and claim. The Commission sent its opinion on 27 July 2012. It was forwarded to the complainant with an invitation to submit observations. The complainant did so on 6 August 2012.

The Ombudsman's analysis and conclusions

Preliminary remarks

12. As regards the complainant's first allegation, the Ombudsman points out that the Commission replied to the complainant's letter of 11 October 2011 on 14 October 2011, and completed its reply on 27 April 2012. Therefore, it complied with its obligation to answer citizens' correspondence and settled the matter raised in the first allegation. The Ombudsman's analysis will thus only concern the complainant's second allegation.

A. Alleged unfair dismissal

Arguments presented to the Ombudsman

13. In support of his allegation, the complainant argued that the Commission refused to accept an adjustment of his work conditions in order to accommodate his disability (the 'First argument').

14. Moreover, the Commission failed to pay him the compensation which it had promised him when announcing its intention to terminate his work contract. He added that such compensation would be in addition to the payment equivalent to 12 months' period of notice that was due to him. In this respect, he referred to a telephone conversation which allegedly took place between himself and the Commission on 29 September 2011. He argued that the amount of EUR 19.770 paid by the Commission corresponded to the payment equivalent to the 12 months' notice period (that is to say, EUR 1647/month) and not to the promised compensation (the 'Second argument').

15. The Commission did not pay him for overtime either. He worked extra hours from 2002 to 2004 (the 'Third argument').

16. In addition, the Commission failed to provide him with a certificate attesting to the work he had performed at the Commission's nursery school (the 'Fourth argument').

17. Finally, the complainant did not agree with the replies which the Commission sent him on 14 October 2011 and 27 April 2012. In particular, he pointed out that, contrary to what it had argued in its reply of 27 April 2012,  the Commission did not enclose with its earlier reply of 14 October 2011 an annex ('form C4') indicating the exact reason for his dismissal, namely, absence for more than six months on account of sickness (the 'Fifth argument'). He stated that the Commission only provided this information on 3 November 2011.

18. In its opinion, the Commission first noted that, given that the complainant was employed as a cook, it was not possible to adjust his work conditions in order to accommodate his disability. The Commission thus followed the doctor's advice concerning the complainant's sick leave.

19. Furthermore, under Belgian law, the employer can dismiss an employee after six months of continuous absence. Given that the complainant had been unable to work since 5 August 2004, the Commission was entitled to end his work contract. In this respect, the Commission asked a private Belgian company specialised in social security issues (Randstadt Sociaal Secretariaat) to establish the complainant's entitlements and prepare the documents required by Belgian law to be submitted to the employee in case of dismissal for continuous absence of more than six months. The said company did so.

20. The Commission took the view that it fully complied with the provisions of Belgian law. The complainant received the indemnity that was due to him and all documents required by national law. The amount of EUR 19 770 received by the complainant was the net amount calculated after the employer's social security contributions had been deducted (the gross amount was EUR 32 860.67).

21. As regards the complainant's argument that the Commission failed to include in the indemnity the amounts due to him for his overtime work for the period 2002-2004, the Randstadt Sociaal Secretariaat informed the Commission that the accounts concerning overtime work should be prepared, at the latest, during the year in which the extra hours are worked.

22. Finally, the complainant received the certificate attesting to the work he had performed at the Commission on 3 November 2011. It was attached to the letter which the Commission sent him on that day.

23. In his observations, the complainant reiterated his previous arguments. He pointed out that the certificate was not provided by the Commission but by a private company (Randstadt Sociaal Secretariaat). This certificate does not bear the signature of a manager from the Commission's nursery school. Furthermore, the Commission acted inconsistently when it sent him an invitation for an examination in order to become a contract agent[1], given that, at that time, the doctors appointed by the Commission considered him unfit for work. Finally, the complainant referred to the provision of Belgian law which imposes an obligation on companies to provide quotas for employees with disabilities.

The Ombudsman's assessment

24. As regards the complainant's First argument, the Ombudsman finds the stance of the Commission acting as an employer justified. Indeed, it is reasonable to consider that it would have been difficult to comply with the doctor's recommendations if the complainant needed to carry out the specific duties of a cook.

25. As regards the complainant's Second argument, the Ombudsman first points out that the complainant did not submit any evidence to prove that the Commission, during a telephone conversation, made the promise to which he refers. Nevertheless, even if such a promise had been made, it does not entitle the complainant to claim that he has legitimate expectations to receive that compensation in addition to the indemnity of EUR 19 770, because such compensation is not foreseen by the applicable law[2]. The Ombudsman notes that, according to Article 7 of the complainant's work contract, the contract can be terminated by giving notice, in accordance with the relevant provisions of Belgian law (first option), or without any notice, by paying an indemnity for dismissal (second option)[3]. The Ombudsman understands that the Commission chose the second option and terminated the complainant's contract without giving notice, whilst paying him an indemnity equivalent to a 12 month notice period. The Commission submitted evidence, including the complainant's last salary slip, to prove that it had paid the complainant all the financial entitlements mentioned above. Furthermore, the complainant did not demonstrate that, according to his work contract or Belgian law, which governed this work contract, he was entitled to receive a different amount.

26. The complainant's Fourth argument is not grounded either. As stated in the Commission's opinion, the private company entrusted by the Commission to handle the termination of the complainant's contract (Randstadt Sociaal Secretariaat) provided the complainant with a certificate. This certificate confirms the period during which the complainant worked for the Commission and was provided on behalf of the Commission. It reads as follows: '[the complainant], a été occupé en tant que, cuisinier chez l'employeur, dont références ci-dessus, pendant la période du 16/11/1992 au 31/10/2011'.

27. The Ombudsman further notes that it is unclear whether the Commission did indeed enclose with its letter of 14 October 2011 the annex specifying the reasons for the complainant's dismissal (Fifth argument). However, he does not find it useful to pursue the matter further because the complainant acknowledged that he received this document on 3 November 2011.

28. As regards the complainant's observation that the Commission did not act consistently when, in 2008, it sent him "an invitation to sit a new competition for contract agents", at a time when he had been declared unfit for work, the Ombudsman points out that the 'invitation' corresponds in fact to the notice informing staff of an internal call issued with an eye to recruiting as contractual agents members of its staff who had previously been employed on the basis of contracts concluded under national law. It is clear that the same invitation was sent to all members of staff employed by the Commission under national law, whether or not they were on sick leave. It would indeed have been better if the Commission had sent individual letters to its staff and had taken into account the fact that the complainant was on the sick leave at that time. However, sending of this notice as such does not mean that the Commission acted inconsistently.

29. In light of the foregoing, the Ombudsman does not find an instance of maladministration as regards the first, second, fourth and fifth arguments and those raised in the complainant's observations. For this reason, his claim cannot be sustained.

30. As regards the complainant's Third argument, the Ombudsman notes that, according to the information provided by the Commission, which was not contested by the complainant in his observations, Belgian law foresees that overtime work should be paid in the year in which the extra hours are carried out, that is, in the case at hand, 2002, 2003 and 2004. It is not clear whether (and, if not, for which reasons) the overtime was paid or compensated for at that time. In any event, if it was not paid or compensated for and responsibility for that lay with the Commission, the Ombudsman notes that these allegations relate to events which took place more than two years ago and the Ombudsman can no longer deal with the matter, according to Article 2(4) of his Statute[4].

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There has been no maladministration.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 23 January 2013

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[1] The complainant referred to an internal call launched by the Commission in 2008 with a view to offering contracts as contractual agents to its staff that had been recruited on the basis of national law.

[2] See Case C-162/84 Vlachou v Court of Auditors [1986] ECR 00481, paragraph 6 and Case T-123/89 Chomel v Commission [1990] ECR II-00131, paragraph 28.

[3] Article 7 of the complainant's work contract reads as follows (in the original French): "(...) les obligations découlant du présent contrat de travail prennent fin:

a) par résiliation moyennant un préavis conformément à la loi sur les contrats de travail pour employés;

b) sans préavis avec paiement d'une indemnité de rupture."

[4] Article 2(4) of the Statute of the European Ombudsman provides that "A complaint shall be made within two years of the date on which the facts on which it is based came to the attention of the person lodging the complaint."