AS TO THE ADMISSIBILITY OF
Application No. 11761/85
by K.O
against Austria
The European Commission of Human Rights sitting in private
on 10 July 1987, the following members being present:
MM. G. SPERDUTI, Acting President
J.A. FROWEIN
F. ERMACORA
G. JÖRUNDSSON
S. TRECHSEL
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 September 1985
by K.O against Austria and registered on 27 September 1985
under file N° 11761/85;
Having regard to
- the Government's observations of 21 August 1986 and the
applicant's observations in reply of 9 October 1986;
- the oral submissions of the parties at the hearing on
10 July 1987;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1926 who resides
in Linz.
The facts apparently not in dispute between the parties may be
summarised as follows.
The applicant was employed by a private insurance company as
the Director of their regional branch office for Upper Austria. He
was also entrusted with the administration of the company's building
in which the branch office was situated. A dispute arose between the
applicant and the company as to the termination of this activity
before the Labour Court (Arbeitsgericht) of Vienna. In the relevant
proceedings, the applicant's claim was finally rejected by a decision
of the Supreme Court (Oberster Gerichtshof) of 18 May 1982. The
applicant subsequently complained to the Commission that these
proceedings were unfair and contrary to Art. 6, para. 1 of the
Convention (Application No. 10247/83). This application was declared
inadmissible on 12 March 1986.
I. In connection with the above litigation, the applicant's
employers suspended him from his duties as Director of the regional
office on the day following the first hearing before the Labour Court
of Vienna, i.e. on 10 March 1978. They took the view that such
suspension was possible at any time without giving reasons. The
applicant contested this opinion and asked for the institution of
disciplinary proceedings against himself. This was however refused.
Eventually the applicant challenged his suspension by an action which
he lodged with the Labour Court of Linz on 9 March 1981, claiming in
particular that the suspension was unjustified because it was in
reality a sanction for his having sued the employers in court. In the
first round of the proceedings, this action led to a decision of the
Supreme Court of 30 March 1982 finding that the employers were
required to give reasons for the suspension. The Supreme Court
therefore referred the case back to the Labour Court of first
instance.
In the renewed proceedings before this court the employers
contested the applicant's legal interest to obtain a judicial
decision on the lawfulness of his suspension because they had in the
meantime dismissed him with effect from 31 March 1982. The applicant
on the other hand challenged the legal validity of the dismissal
inter alia as having been pronounced before the required consent
of the authority under the Disabled Persons (Employment) Act
(Invalideneinstellungsgesetz) had become final. He had in fact lodged
an appeal against the relevant decisions before the Administrative
Court (Verwaltungsgerichtshof). For this reason he also brought new
proceedings against his employers in the Labour Court of Linz
contesting the lawfulness of his dismissal, and in the pending
proceedings concerning his suspension he claimed to have a continued
legal interest.
However, in its decision of 9 December 1982, the Labour Court
of Linz denied the applicant's legal interest, finding that the
dismissal was valid because it had been pronounced with the consent of
the competent administrative authorities and the Administrative Court
proceedings having no suspensive effect. This decision was confirmed
on 11 May 1983 by the Regional Labour Court (Landesgericht als
Berufungsgericht in arbeitsgerichtlichen Rechtsstreitigkeiten) of Linz
which added that the applicant's appeal to the Administrative Court
had in the meantime been rejected. (A complaint concerning the
Administrative Court's proceedings was included in the applicant's
above Application No. 10247/83 and was declared inadmissible as
being incompatibile with the provisions of the Convention.)
In the present case the applicant appealed further to the
Supreme Court which on 23 October 1984 reversed the above decisions of
the Labour Courts. It found - contrary to its own earlier case-law -
that the consent of the competent authority must have become final
(rechtskräftig) before the dismissal of a disabled person such as the
applicant can be pronounced by his employer. It also stated that the
applicant's case did not come within the scope of Section 8 (2) of the
Disabled Persons (Employment) Act according to which a handicapped
person may be exceptionally dismissed without prior consent of the
authority, in which case the consent may be sought retroactively.
The applicant's dismissal was therefore invalid and his claim
relating to his suspension could consequently not be rejected on
the ground that he lacked a legal interest because of this dismissal.
The Supreme Court therefore again referred the case back to the Labour
Court of first instance, directing it to deal with the merits of the
question of the justification of the applicant's suspension.
By a decision of 30 January 1985 the Labour Court of Linz
allowed the applicant's claim that his suspension had been unlawful,
finding that the reasons given by his employers - essentially
the fact that he had brought lawsuits against them - were not
sufficient to justify this suspension. As a matter of principle, the
employers were not entitled to prejudge the decision of the competent
courts by such a measure, in particular as the applicant's lawsuits
had not been abusive. The Labour Court rejected the employers'
request to adjourn the proceedings pending the outcome of new
administrative proceedings which they had in the meantime instituted
to obtain retroactive consent of the authority to the applicant's
dismissal.
The employers appealed against this judgment, claiming that the
retroactive consent to the dismissal had in the meantime been granted
and that as a consequence the dismissal was valid and deprived the
applicant of his legal interest to challenge his previous suspension.
The applicant contested this argument claiming that the grant of
retroactive consent to the dismissal was unlawful. He referred to his
appeal to the Constitutional Court (Verfassungsgerichtshof) and the
Administrative Court and requested the adjournment of the Labour Court
proceedings pending the decision of these courts. However, this
request was rejected and the Regional Labour Court of Linz allowed the
employers' appeal by a decision of 31 July 1985.
In the reasons, the Regional Labour Court noted in particular
that the retroactive consent to the dismissal had in the meantime been
granted by the competent administrative authority. It considered
that it was bound by this decision notwithstanding the applicant's
appeals to the Constitutional and Administrative Courts. The
dismissal was therefore to be considered as valid and accordingly the
applicant could raise claims resulting from his earlier suspension
only until the date of the dismissal, i.e. 31 March 1982. In this
context, the Court further noted that in the labour court proceedings
concerning the (original) dismissal the parties had reached a
settlement on 26 May 1983 according to which the employers undertook
to pay the applicant compensation (Abfertigung) for certain
claims arising from his employment until the date of dismissal. The
Court considered that the settlement covered all claims which the
applicant still could raise as a consequence of his suspension, and
therefore it rejected his action for lack of legal interest in the
judicial determination of these claims. It stated that it was not
required in these circumstances to deal with the justification of the
suspension.
On 7 October 1985, the applicant lodged an appeal on points of
law (Revision) to the Supreme Court which thus was seized for the
third time in this case. He claimed that the Regional Labour Court
had wrongly stated the facts concerning the settlement of 26 May 1983
because that settlement by its express terms was only of a partial
nature and did not cover all claims, in particular it did not cover
any claims posterior to the date of the dismissal. He further claimed
that the Regional Labour Court had committed an error of law in
considering the dismissal as valid. In doing so it had disregarded
the Supreme Court's earlier finding that Section 8 (2) of the Disabled
Persons (Employment) Act was not applicable in his case and that a
retroactive consent to the dismissal was therefore excluded.
The applicant's appeal was rejected by the Supreme Court on
15 July 1986. The Supreme Court considered it as irrelevant whether
or not the settlement of 26 May 1983 had been correctly interpreted by
the Regional Labour Court as in any event the applicant's dismissal
had now to be regarded as valid, the competent administrative
authorities having in the meantime declared their retroactive consent
to this dismissal under Section 8 (2) of the Disabled Persons (Employment)
Act. The Regional Labour Court had correctly held that it was bound
by the administrative authorities' decision in this respect. These
authorities were exclusively competent to apply the said Act and they
were not bound by the Supreme Court's opinion expressed in the
decision of 23 October 1984 according to which the conditions of
Section 8 (2) concerning retroactive consent were not met. The civil
courts had no power to review the administrative authorities'
decisions. The Court concluded that the applicant had no legal
interest in the determination of his claim concerning his suspension.
The Supreme Court did not deal with the relevance of the
public law appeals which the applicant had filed with the
Constitutional and Administrative Courts against the authorities'
retroactive consent to his dismissal. As the Administrative Court had
in the meantime quashed the authorities' consent by its decision of
21 May 1986 the applicant requested the reopening of the Labour Court
proceedings concerning his suspension.
On 9 October 1986 the Regional Labour Court of Linz rejected
the action (Wiederaufnahmeklage) and the applicant again appealed to
the Supreme Court which thus is dealing with this case for the fourth
time. It has not yet taken a decision.
The applicant had in the meantime brought new proceedings
against his employers concerning the dismissal, seeking a declaration
that his employment had not been validly terminated and raising claims
for the period after 31 March 1982. However, his action to this
effect had been rejected by the Labour Court of first instance on
14 August 1985, on the ground that the administrative authority had
validly declared its retroactive consent to this dismissal.
Following the Administrative Court's above decision quashing
the consent the applicant also requested the reopening of these
proceedings. The Labour Court of Linz allowed the request on
24 September 1986 and the Regional Labour Court confirmed this
decision on 3 February 1987. However, the employers have appealed
to the Supreme Court where this case, too, is still pending.
II. The administrative proceedings under the Disabled Persons
(Employment) Act, to which the labour courts referred when judging
the applicant's legal interest, may be summarised as follows:
As mentioned above, the applicant's employers, after having
suspended him from his functions, eventually decided to dismiss him.
This followed unsuccessful attempts to arrive at a friendly settlement
with him concerning the various matters which by then had given rise to
judicial litigation. However, as the applicant was 70 % handicapped,
his dismissal required the previous consent of the Disabled Persons
Board (Invalidenausschuss) in accordance with the provisions of the
Disabled Persons (Employment) Act. Administrative proceedings were
therefore instituted for this purpose. The Disabled Persons Board
declared its consent to the dismissal on 8 July 1981, and this decision
was confirmed on appeal by the Provincial Governor (Landeshauptmann)
for Upper Austria on 16 October 1981. The applicant then lodged a
complaint with the Administrative Court which was eventually rejected
on 9 March 1983.
The Court found essentially that the reason for the
applicant's dismissal had not been his invalidity, and that the
authorities had not overstepped the limits of their discretionary
powers by finding that there were objective reasons for the
applicant's dismissal as he had rejected all offers to settle the
dispute with his employers. In view of the pension to which the
applicant was entitled there was no question of a social hardship
arising for him. The Administrative Court finally considered that no
procedural principles had been violated in the administrative
proceedings, in particular as regards the applicant's right to be
granted access to the file.
The applicant was in fact given notice of the termination of
his employment contract on 14 July 1981 with effect from 31 March 1982.
The employers thus relied on the administrative decision of first
instance, without awaiting the determination of the applicant's appeals.
According to the Supreme Court's above judgment of
23 October 1984 the original notice of dismissal could not be
considered as valid because of the employers' failure to wait until
the administrative decision had become final. However, following this
decision the applicant's employers applied for the retroactive consent
of the Disabled Persons Board to the applicant's dismissal pronounced
on 14 July 1981, basing themselves on the provision in Section 8 (2)
of the Disabled Persons (Employment) Act according to which such
retroactive consent can be sought in exceptional cases.
They claimed that the Supreme Court's decision departing from
its long established case-law had not been foreseeable for them, and
that therefore an exceptional case within the meaning of Section 8 (2)
was given. The applicant opposed this argument by referring to the
Supreme Court's decision itself which had expressly stated that there
was no reason to apply this provision. He further submitted that the
employers' application was inadmissible on the ground of res judicata.
By a decision of 14 March 1985, the Disabled Persons Board
refused to grant retroactive consent to the dismissal on 31 March 1982,
but stated at the same time that the earlier consent continued to produce
effect for any future notice of dismissal. Insofar as the application
sought to reopen the issues discussed in the earlier proceedings, it
was therefore struck by res judicata.
Both parties appealed, and on 17 June 1985 the Provincial
Governor of Upper Austria allowed their appeals. The employers'
appeal against the refusal of retroactive consent was allowed on the
ground that the administrative authority was not bound by the opinion
of the Supreme Court that Section 8 (2) was inapplicable. The
Provincial Governor considered that the employers had acted in
conformity with the law as it was applied at the relevant time when
they gave notice to the applicant without awaiting the final effect of
the administrative decision. The Supreme Court's change of
jurisprudence had not been foreseeable and constituted an exceptional
case within the meaning of Section 8 (2), in particular as the
employers had acted in good faith and would suffer unfair
disadvantages if the dismissal at the original date was considered as
ineffective. In fact they would have to pay the applicant's full
salary in the amount of several million Schillings without his having
worked for them. The applicant's appeal was also allowed. It was
noted that the employers had, as a matter of precaution, addressed a
new notice of dismissal to the applicant with effect from 30 June 1985,
should the earlier dismissal not be considered as valid, but that they
had not newly applied for the authorities' consent. The Provincial
Governor agreed with the Disabled Persons Board that the previous
decisions continued to produce effect if the same case of dismissal
was concerned. However, if there was a new case of dismissal, the
proceedings would have to be repeated.
On 23 July 1985, the applicant appealed against this decision
to the Constitutional Court, invoking his right to a decision by the
competent judge under Art. 83 of the Federal Constitution (Bundes-
verfassungsgesetz). This provision had allegedly been violated by the
Provincial Governor in that he had given a new decision on the merits
by declaring his retroactive consent to the dismissal instead of
rejecting the employers' application on the ground of res judicata
as required by Section 68 of the Code of General Administrative
Procedure (Allgemeines Verwaltungsverfahrensgesetz). In the
alternative the applicant requested the Constitutional Court to refer
the question of the alleged violation of provisions of the Code of
General Administrative Procedure to the Administrative Court.
On 25 November 1985, the Constitutional Court decided in
conformity with Art. 144 para. 2 of the Federal Constitution
as amended in 1984 (Fed. Law Gazette No. 196/1984) to refrain from
dealing with the case as it did not raise specific questions
concerning the interpretation of constitutional law. Any violation of
the right to a decision by the competent judge could only result from
an error of ordinary law, a matter which could be decided
by the Administrative Court to which the case was accordingly
referred.
On 21 May 1986 the Administrative Court allowed the
applicant's appeal finding that retroactive consent to the dismissal
of a disabled person could only be granted in very exceptional cases,
i.e. cases at the borderline of justified protection against
dismissal, characterised by a situation where the employer could not
reasonably be expected to solicit the prior consent of the authority.
The present case was not of such a nature. The employers had in fact
applied for prior consent and had given notice of dismissal only after
the decision of first instance had been given. The fact that in doing
so they had committed an error of law because they had failed to await
the final decision could not be considered as a "very exceptional
circumstance" justifying a retroactive consent.
COMPLAINTS
The applicant, invoking Article 6 para. 1 of the Convention,
complains of the length of the labour court proceedings and the fact
that, eight years after his suspension, the question of whether
or not this suspension was justified has not yet been fully determined
by the courts.
The applicant further complains under Article 6 para. 1 that
he was refused access to court insofar as the courts considered
themselves bound by administrative decisions and, on this basis,
denied his legal interest in the determination of the suspension case.
He also invokes Article 13 of the Convention in this context.
The applicant alleges discrimination (Article 14 of the
Convention) in that the protection against unjustified dismissal laid
down in the Employment (Principles) Act does not extend to disabled
persons. Unlike that Act the Disabled Persons (Employment) Act
contains no specific regulations concerning unfair dismissal but
leaves the matter to the discretion of the administrative authority.
Allegedly no effective judicial remedy is available to disabled
persons after the administrative authority's consent to the dismissal
has become final.
In the course of the proceedings before the Commission the
applicant has further invoked Articles 3, 6 para. 2, and 11 of the
Convention as well as Article 1 of Protocol No. 1.
PROCEEDINGS
The application was introduced on 24 September and registered
on 27 September 1985.
On 12 March 1986 the Commission rejected the applicant's
earlier Application No. 10247/83 which partly relates to the same
facts. At the same time the Commission decided to give notice of the
present application to the respondent Government and to invite them,
in accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to
submit observations in writing on the admissibility and merits.
The time-limit for the submission of the Government's
observations was fixed at 30 May 1986. At the Government's request
this time-limit was subsequently extended until 22 August 1986.
The Government submitted their observations on 21 August 1986
and the applicant replied on 9 October 1986.
On 4 March 1987 the Commission decided to invite the parties,
in accordance with Rule 42 para. 3 (b) of the Rules of Procedure, to
submit further observations on the admissibility and merits orally at
a hearing before the Commission.
The hearing took place on 10 July 1987. At the hearing the
parties were represented as follows:
- The Government by their Agent, Botschafter Dr. Helmut Türk,
Head of the International Law Department, Federal Ministry of
Foreign Affairs, who was assisted by Dr. Sabine Bernegger of
the Federal Chancellery's Constitutional Law Department, and
Dr. Irene Gartner of the Federal Ministry of Justice, Advisers.
- The applicant appeared in person, assisted by his wife,
Mrs. Obermeier, as adviser.
SUMMARY OF THE PARTIES' OBSERVATIONS
A. The Government
The Government admit that the applicant has complied with the
conditions of Article 26 of the Convention.
They submit, however, that the application is manifestly
ill-founded.
There could even be certain doubts concerning the applicability
of Article 6 of the Convention. The Government emphasise that the
proceedings at issue concern exclusively the applicant's claim that
his suspension be revoked (Aufhebung der Suspendierung). In substance
the applicant thereby demands the reinstatement in his job, for his
suspension was based on Section 32 of the Collective Agreement for
Insurance Employees according to which such a measure leaves
unaffected all aspects of the employment contract except the
employee's obligation to work. He has no right to work, neither under
the Convention nor under civil law. He only has a contractual duty to
work which, in this case, the employer suspended by a disciplinary
measure. However, in the Government's view the taking of disciplinary
measures in the context of a private law relationship between employer
and employee does not necessarily come within the scope of Article 6.
The Government stress that apart from the above claim that
his suspension be revoked the applicant has not raised any other
claims in the relevant proceedings. In particular, these proceedings
did not concern any financial claims nor the validity of the
applicant's dismissal as such. These matters were the subject of
different proceedings which are not at issue here.
Insofar as the validity of the dismissal was nevertheless
relevant as a preliminary issue (Vorfrage) in the present case, the
examination of this issue did not involve a direct determination of
the applicant's civil rights. The preliminary issue concerned the
applicant's legal interest (Rechtsschutzinteresse) in the judicial
determination of his above claim. The existence of such legal
interest is a condition for the admissibility of judicial proceedings
(Prozessvoraussetzung) which the court is required to examine ex officio
at any stage of the proceedings.
The applicant's specific claim to have his suspension revoked
logically presupposes a situation of continuing employment. It would
not make sense to demand the revocation of a suspension from
employment after the termination of this employment. Therefore the
applicant's legal interest in the action depended on whether or not
his employment had been validly terminated by the employer's notice of
dismissal.
Generally, the employer's right to give notice is not
restricted by a requirement of administrative consent. The employer
can dismiss by a unilateral private law declaration addressed to the
employee who has certain possibilities to challenge the dismissal only
after it has been pronounced (cf. in particular Section 105 of the
Employment Principles Act which assigns an important function to the
works council). However, a different regime exists for disabled
employees. Under the Disabled Persons (Employment) Act the employer
cannot validly give notice of dismissal to them without the prior
consent of the competent administrative authority. This means there
exists a general prohibition to dismiss disabled employees. It is
true that the Disabled Persons Board enjoys a measure of discretion in
deciding on derogations, but the discretion must be exercised in
accordance with the aim and purpose of the legislation and this is
controlled by the Administrative Court which has developed a pertinent
case-law since 1954. In view of the fact that the regime introduced
for disabled persons is generally more favourable, it cannot be said
that it is discriminating.
If the employer fails to obtain the required consent, or if
the consent is defective, the dismissal will not be regarded as
valid. However, this lack of validity becomes operative only if the
employee subsequently challenges the dismissal by a Labour Court action
in which he claims that he is still employed and thus entitled to
continued payment of his salary (Leistungsklage). The applicant could
and did in fact make use of this possibility, i.e. he actually
challenged his dismissal in labour court proceedings which, however,
are not at issue here. He cannot pretend that in this respect he was
refused access to court.
Nor was the applicant's right of access to court interfered
with in the present case insofar as the courts assumed a binding
effect of the administrative decisions taken under the Disabled
Persons (Employment) Act when judging the preliminary question of the
validity of the applicant's dismissal. In the Government's view the
binding effect of administrative decisions only played a role in the
third round of the labour court proceedings. Moreover, it was only
the fact that the administrative authority had consented to the
dismissal which was regarded as binding (Tatbestandswirkung). There
was no decisive determination of the applicant's civil rights in this
respect. As the Commission confirmed in its decision on the
applicant's first application No. 10247/83, the administrative
proceedings themselves did not determine such rights and fell outside
the scope of Article 6. The Government furthermore observe that in
these proceedings the administrative authority was only called upon to
apply the Disabled Persons (Employment) Act and not to examine the
question of the lawfulness of the dismissal in its entirety. The
question of whether the dismissal infringed the Civil Code as being
contra bonos mores (sittenwidrig), whether it was contrary to
contractual clauses, to the applicable collective agreement, or to
provisions of the Employees Act (Angestelltengesetz) were matters
which could be raised in labour court proceedings to challenge the
dismissal. In the present labour court proceedings the applicant
either failed to draw the court's attention to such issues, or if the
courts examined them, they must have come to the conclusion that the
applicant's dismissal was in substance justified.
As regards the length of the labour court proceedings, the
Government observe that these proceedings were instituted only three
years after the applicant's suspension, on 9 March 1981. The
previous period during which settlement negotiations took place
between the applicant and his employers cannot be taken into account
for the purposes of Article 6 para. 1.
Until the Supreme Court's final judgment of 15 July 1986 the
proceedings lasted some five years and four months. This included
three rounds of court proceedings through all levels of jurisdiction.
The Government observe that in the course of these proceedings delays
have hardly occurred, and this despite the complexity of the matter
and the interaction of court and administrative proceedings. They
consider that in these circumstances the total length of the
proceedings was not unreasonable.
The particular complexity of the case arose from several
circumstances: The fact that the applicant was given notice of
dismissal before a final decision had been taken in the case
concerning the revocation of his suspension; the interaction between
the court proceedings and the administrative proceedings concerning
the consent to that dismissal; the change of the Supreme Court's
case-law as to when the authority's prior consent becomes effective;
finally, the fact that in reaction to this unexpected change of
jurisprudence the applicant's employers requested and eventually
obtained retroactive consent, a fact which was binding on the Labour
Court and created a new legal situation.
If something is to be "blamed" for the length of the
proceedings it is the Supreme Court's decision of 23 October 1984 by
which a change of the constant case-law was brought about. Without
that decision a third round of the proceedings would not have become
necessary. The Government also admit that a certain delay occurred in
the preparation of this decision which was the reaction to an appeal
registered on 16 August 1983. However, this delay was attributable to
the complexity of the matter and the fact that the Supreme Court
decided contrary to its long established previous case-law. Such a
departure from previous case-law is not an everyday affair. It
requires thorough consideration and should be made in the interest of
legal security only in the presence of good reasons and sound
arguments. This explains why the short delay occurred.
As such, this change of the case-law did not interfere with
the applicant's rights. The decision was in his favour as he was
thereby given a new opportunity to assert his claim concerning his
suspension: He again acquired a legal interest which according to
the earlier practice would no longer have existed. Accordingly he
cannot complain of the resultant prolongation of the proceedings.
The change of the Supreme Court's case-law was completely
unexpected. That is why the applicant's employers requested
retroactive consent to the dismissal under Section 8 (2) of the
Disabled Persons (Employment) Act which was eventually granted by the
Provincial Governor for Upper Austria. In the Government's submission
it was not unreasonable for the Provincial Governor to consider the
unexpected change of the Supreme Court's case-law as an exceptional
circumstance within the meaning of this provision.
The Provincial Governor's decision was a final administrative
decision and thus binding on the Regional Labour Court which, at the
relevant time, was seized with an appeal. In fact, it changed the
legal situation underlying the case (veränderte Entscheidungsgrundlage),
and this was subsequently also confirmed by the Supreme Court.
The Government observe that the interaction between the
administrative proceedings and the judicial proceedings did not lead
to any unjustifiable delays. The two proceedings were conducted
simultaneously without any adjournment of the judicial proceedings
pending an administrative decision, or vice versa. Only the result
and not the length of the judicial proceedings was thus influenced by
the administrative proceedings. The mere fact that Austrian law
attributes a role to administrative authorities in dismissal
proceedings cannot be criticised as a circumstance which tends to
reduce the legal protection of the persons concerned. On the
contrary, it increases their legal protection even if the relevant
proceedings may sometimes last longer.
The Government also observe that in the administrative
proceedings concerning retroactive consent the applicant was given
sufficient opportunity under the Code of General Administrative
Procedure to submit his legal arguments, although no oral hearing took
place in these proceedings. Such a hearing could be dispensed with
as there had been one already in the earlier proceedings, because
the facts were essentially unchanged and the issue to be decided was
merely a legal question. The authority took its decision on the basis
of the voluminous file.
As the Supreme Court confirmed, the fact that the authority had
consented to the dismissal was binding on the labour courts which had no
possibility to enquire whether the authority's decision was correct in
terms of its merits. The fact that the Provincial Governor's decision
had, in the meantime, been quashed by the Administrative Court could
not be taken into account by the Supreme Court because the
Administrative Court's decision of 21 May 1986 had not yet been issued
in writing.
A lengthy procedure, which is caused above all by the
particular legal structure of the interaction of courts and
administrative authorities and the change in the jurisprudence of the
Supreme Court which was so decisive for this interaction in
particular, cannot be considered inappropriately long. The Government
therefore move that the Commission should declare the application
inadmissible as being manifestly ill-founded.
B. The applicant
The applicant refers to the successful activities which he had
performed for many years for his employer. His suspension took place
shortly before his 25th anniversary of employment in May 1978, for
which a public ceremony was planned. Already for some time he had had
difficulties with the central management concerning certain parts of
his income which were related to the real property administration.
Although reluctant he was in substance ready to agree to a reduction,
but he was not prepared to accept a three months' notice clause in the
new contract offered to him. Nevertheless the dispute concerning this
question did not disturb the enthusiasm which he showed for the
insurance business and the esteem which he enjoyed for his activities.
Finally, it was even with the agreement of the general director that
he put the matter before the courts for decision.
However, the situation suddenly changed when the first court
hearing actually took place. The following day, i.e. on
10 March 1978, the applicant was summoned to appear before the
management. He was not allowed to be legally assisted and his wife,
who also worked for the firm, was told to leave the room. The
applicant was then informed that he was suspended with immediate
effect. This was followed by a general staff meeting in the absence
of the applicant at which the works council defended the management's
measure taken against the applicant.
For him it was like an execution. He had to return the keys
and was no longer admitted to the premises. Not only was he not
allowed to work for his employer, he also lost a number of other
functions and could not seek alternative employment without prejudging
his legal interests. If he had acted as a private insurance agent for
other companies, this would at once have led to the loss of his
pension entitlement.
The applicant considers that he had not given any cause for
the suspension. He had not failed to perform his professional duties
nor had he committed a disciplinary offence. Indeed, under Section 32
of the Collective Agreement a suspension is not considered as a
disciplinary measure. The applicant actually asked for disciplinary
proceedings but none were taken. His employers simply used the
suspension as an instrument to secure his accommodation in the above
contractual matters.
The applicant considers that in view of their serious
consequences (inter alia health problems of the applicant and members
of his family) his suspension and subsequent dismissal amounted to
inhuman and degrading treatment contrary to Article 3 of the
Convention. Also they were discriminatory and thus in breach of
Article 14. Furthermore the suspension infringed the presumption of
innocence guaranteed by Article 6 para. 2 of the Convention and,
because of the financial losses it caused the applicant, also his
property rights under Article 1 of Protocol No. 1. Finally, the fact
that the applicant's trade union did nothing to defend his interests
and even refused him legal assistance allegedly interfered with his
trade union rights under Article 11 of the Convention.
In the circumstances it must be wholly understandable that the
applicant continues to fight for his full rehabilitation, and in doing
so he should neither be regarded as a "Michael Kolhaas" nor as a "Don
Quichote".
However, the applicant claims that the Austrian legal system
does not provide sufficient protection. He observes that despite a
lapse of almost ten years since his suspension and despite the 71
legal acts mentioned in the time-schedule submitted by the Government,
the simple question of whether or not his suspension was justified has
not yet been determined. The applicant is not so much interested in
the actual revocation of the suspension as in a judicial finding that
he had done nothing to justify it. The one decision which was taken
on the merits of this question, and which was fully in his favour,
could not become final because of his legal interest being denied in
the subsequent appeal proceedings. According to the Supreme Court
decision of 15 July 1986, a determination of this question is no
longer possible. However, the applicant is trying to obtain a
reopening of the proceedings having regard to the Administrative Court
decision of 21 May 1986.
In the applicant's view the question at issue in the labour
court proceedings was not particularly complex. Everybody would agree
that a serious measure like suspension cannot be taken by an employer
without reasons. It cannot be right to suspend somebody, refuse him
disciplinary proceedings, and if he seeks judicial protection, dismiss
him in order to deprive him of any remedy. The whole proceedings
could have been avoided if disciplinary proceedings in accordance with
the Collective Agreement had been taken against the applicant. They
would have provided the possibility of serious sanctions, including
punitive dismissal under Section 23 para. 1 (6) of the Collective
Agreement.
The applicant considers it as unjustified to make the decision
concerning his suspension dependent on the validity of his dismissal.
In his view the administrative authority's consent to the dismissal
was not a relevant preliminary question in the judicial proceedings.
The fact that on this basis his legal interest was repeatedly, and at
last even finally, denied constitutes according to him a breach of
his right of access to court under Article 6 of the Convention and of
his right to an effective remedy under Article 13. The applicant
further alleges that as a disabled person he was discriminated against
as regards his right of access to the existing remedies. He invokes
Article 14 of the Convention in this respect.
The applicant submits that the Austrian law does not
provide for a judicial competence to challenge the dismissal of a
disabled person to which the administrative authority has consented.
The Disabled Persons (Employment) Act differs from the Employment
(Principles) Act in that it does not contain any specific regulations
on unfair dismissal, nor a social hardship clause. The decision on
the justification of dismissals is left to the unfettered discretion
of the competent administrative authorities. In fact these
authorities deal with all aspects of the dismissal. It is unrealistic
to assume that a dismissal to which the authority has consented could
subsequently be challenged under the Civil Code as being contra
bonos mores, as the Government suggest.
In the applicant's view the competent authorities, i.e.
the Disabled Persons Board and the Provincial Governor, are not
independent courts. They are administrative authorities bound by
instructions of the Federal Minister of Social Affairs. In the
present case this Minister was at the same time the husband of the
head of personnel in the applicant's firm. Furthermore he was
chairman of the applicant's trade union (whose representatives in the
works council had backed the employer's measures and which had refused
him legal aid). Finally, the Minister had also acted as mediator.
In the particular case the proceedings were also unfair
because the Disabled Persons Board refused to adjourn the case pending
the parallel court proceedings on the justification of the dismissal,
and because it failed to take into account numerous pieces of evidence
which the applicant had submitted in order to show that his dismissal
was not justified. The applicant states in this context that he was
permanently employed (unkündbar) and, according to his contract and
the applicable collective agreement, could be given notice only in
view of a so-called "administrative retirement" (Administrativ-
Pensionierung). The latter, however, required serious reasons in the
person of the employee concerned, for whom it brought about various
financial and other disadvantages. The applicant denies that such
reasons existed in his case.
The Provincial Governor's proceedings, before issuing his
decision on retroactive consent, were likewise unfair. This decision
was taken without hearing the applicant and it relied on documents
which had not been part of the file.
It is true that the administrative decisions could be
challenged before the Administrative Court. However, the applicant
contests the Constitutional Court's opinion expressed in decisions
Nos. 5100 and 5102 according to which the Administrative Court
proceedings satisfy the requirements of Article 6. In this respect
he invokes the Commission's Report in the Ettl Case (No. 9273/81,
Comm. Rep. 3.7.85). The Administrative Court cannot take a decision
on the merits, but can only confirm or quash the administrative
decisions. It is impossible to raise questions of fact before it.
Also, certain important procedural principles such as the direct
evidence rule (Unmittelbarkeit), the principles of oral proceedings
(Mündlichkeit) and hearing of both parties (beiderseitiges rechtliches
Gehör) are widely disregarded. Thus the Administrative Court refused
to hold a hearing in the applicant's case. In this respect the
applicant refers to the submissions in his earlier application
No. 10247/83 which he reiterates despite the Commission's decision of
12 March 1986 to reject that application. He claims that that decision
was based on wrong assumptions. In particular, it is not correct that
the administrative consent to a dismissal can be challenged before the
ordinary courts after the Administrative Court's decision. For this
reason the applicant requests a reopening of the Commission's
proceedings on his first application.
Although it is apparently the intention of the Disabled
Persons (Employment) Act to provide better protection against
dismissal for disabled persons, they are in fact protected less
effectively than normal employees and thus discriminated against. As
the present case shows, the system of dual protection by the courts
and administrative authorities has only adverse effects on the
individual concerned. In fact it leads to divergent decisions of the
administrative authorities and the courts. The present application
challenges this dual system as such.
In the applicant's view interaction between the administrative
and the judicial proceedings not only led to an unreasonable
prolongation of the proceedings, it also involved an interference with
his right of access to court insofar as the labour courts considered
themselves bound by the administrative decisions. In fact it amounts
to an encroachment on a person's legal protection if he is confronted
with a complicated legal system involving a shuttle (Pendelbewegung)
between administrative and judicial decisions and a confusing
interdependency of various tricky problems.
As regards the length of the labour court proceedings the
applicant considers that it was in fact mainly caused by the
interaction with the parallel administrative proceedings and not by
the change of the Supreme Court's constant case law.
The applicant accepts the Government's submission that the
period prior to the filing of his action cannot be taken into
account for the purposes of Article 6. However, he also observes that
he waited until the very end of the prescription period because he
still hoped to reach a settlement with his employers. For three years
he undertook many efforts to settle the question of his suspension
without applying to the courts. In his view the matter could have
been solved on the basis of the applicable collective agreement for
insurance employees. However, all his efforts to secure a
satisfactory solution with the assistance of his trade union and the
competent professional corporation, the Workman's Chamber, were to no
avail. It is only for this reason that he filed his action one day
before the expiration of the legal prescription period on 9 March 1981.
This shows that he did not start the litigation prematurely or in an
abusive way. He did so at his own cost as his trade union had refused
to grant him legal assistance. He had to prove his claim for legal
assistance in other court proceedings.
The labour court proceedings lasted about five-and-a-half
years and thus considerably longer than those in the Zand case
(No. 7360/76, Comm. Rep. 12.10.78, D.R. 15 p. 70) where the
Commission stated with regard to similar proceedings which had lasted
three-and-a-half years "that such a delay can only be accepted, under
Article 6 para. 1 of the Convention, in very exceptional cases".
Morever, the applicant does not feel responsible for any delay which
occurred in his case. He therefore claims that Article 6 has been
breached.
THE LAW
1. The applicant's complaints relate to labour court proceedings
on his suspension from employment. He complains, in particular, under
Article 6 para. 1 (Art. 6-1) of the Convention that in these proceedings his
civil rights were not determined within a reasonable time and that his
right of access to court was interfered with insofar as the courts
considered themselves bound by administrative decisions consenting to
his dismissal. Following the dismissal the courts found that the
applicant had no longer any legal interest in the determination of the
suspension case.
The applicant also invokes his right to an effective domestic remedy
under Article 13 (Art. 13) of the Convention and claims that he has been
discriminated against, as a disabled person, contrary to Article 14 (Art. 14)
of the Convention.
2. The Commission notes that in the course of the proceedings the
applicant has submitted a number of further arguments under the
Convention relating, on the one hand, to his suspension and dismissal
as such and, on the other, to the legal protection against dismissal
which Austrian law provides for disabled persons. The Commission has
considered these submissions as ancillary to the above complaint
concerning access to court, and not as separate complaints introduced
in conformity with Article 25 (Art. 25) of the Convention. In any event the
applicant's suspension and dismissal are acts of his private employer
which he could not challenge as such before the Commission and the
labour court proceedings by which the applicant challenged his
dismissal are not at issue in the present case.
3. Having regard to the specific claim which the applicant raised
before the Labour Courts in the present case the Government have expressed
doubts concerning the applicability of Article 6 para. 1 (Art. 6-1) of the
Convention to the proceedings in question. The relevant part of this provision
reads as follows:
"In the determination of his civil rights and
obligations ... everyone is entitled to a fair
and public hearing within a reasonable time by an
independent and impartial tribunal established by
law."
The Government submit that in the last analysis the
applicant's action concerned exclusively his right to work which
they claim is not a civil right. Moreover, the suspension was a
disciplinary measure taken by the employers which, in the Government's
view, likewise fell outside the concept of civil rights.
However, the Commission is unable to follow the Government on
this point. Even if the applicant did not have a right to work under
the applicable Austrian law but only a contractual duty to work which
his employers suspended by a disciplinary or other measure covered by
a collective agreement, the litigation still concerned the private law
relationships between the applicant and his employers, and thus the
determination of his "civil rights and obligations" within the meaning of
Article 6 para. 1 (Art. 6-1). It follows that this provision is applicable to
the proceedings.
4. The applicant complains that his civil rights were not determined
"within a reasonable time" as required by Article 6 para. 1 (Art. 6-1). The
Commission notes in this context that the applicant's action was introduced on
9 March 1981 and that after three rounds of proceedings it was finally
dismissed by the Supreme Court on 15 July 1986. The proceedings thus lasted
more than five years and four months.
The Commission further notes that the applicant has requested
the reopening of the proceedings on the ground that the Supreme Court
disregarded the fact that the administrative decision which it
considered as binding had in the meantime been quashed by the
Administrative Court. Therefore it is not excluded that there will be
further proceedings which again will come within the scope of Article 6 para. 1
(Art. 6-1) (cf. in this respect No. 9816/82, Poiss v. Austria, Comm. Rep.
24.1.1986, at paras. 88 et seq.)
The reasonableness of the length of proceedings has to be
assessed in each case according to the particular circumstances and
having regard to the criteria enunciated in the case-law of the
European Court of Human Rights (see Zimmermann and Steiner
judgment of 13 July 1983, Series A no. 66, p. 11, para. 24).
In this context the Court has regard, inter alia, to the
complexity of the factual or legal issues raised by the case, to the
conduct of the applicant(s) and the competent authorities and to what
was at stake for the former; in addition, only delays attributable to
the State may justify a finding of a failure to comply with the
"reasonable time" requirement (see, mutatis mutandis, König
judgment of 28 June 1978, Series A no. 27, pp. 34-40, paras. 99,
102-105 and 107-111, and - concerning labour court proceedings -
Buchholz judgment, Series A no. 42, p. 16, para. 49).
The Commission holds that the same approach must be adopted in
the present case in assessing the duration of the proceedings before
the Austrian courts.
The Commission has taken cognisance of the pleadings of both
parties in this respect. It notes the Government's argument that the
case was particularly complex because of the applicant's subsequent
dismissal, the interaction with administrative proceedings and the
change of the Supreme Court's case-law, and that in view of the fact
that there were three full rounds of judicial proceedings, during which
there occurred no major delay at any stage, the length of these
proceedings does not appear excessive. It also notes the applicant's
contention that this case, which concerned vital interests of his
because of the humiliation and financial consequences brought about by
his suspension, was not as such a complex one, that the delay was
mainly caused by the unnecessary interaction with administrative
proceedings, and that the applicant himself was in no way responsible
for this delay.
After carrying out a preliminary examination of these
arguments the Commission finds that the applicant's above complaint
cannot be rejected as being manifestly ill-founded, and that its
determination should accordingly depend upon the examination of the
merits.
5. The applicant further complains under Article 6 para. 1 (Art. 6-1) and
Article 13 (Art. 13) of the Convention that he was refused access to court
insofar as the courts considered themselves bound by administrative
decisions and, on this basis, denied his legal interest in the
determination of the suspension case.
The Commission notes that in the proceedings concerning the
applicant's suspension the Labour Courts considered it as decisive for
his legal interest that his employment had not been terminated. The
validity of the dismissal was therefore a preliminary issue of
overriding importance. Under the applicable law, the Disabled Persons
(Employment) Act, the dismissal could only be valid with the prior, or
exceptionally, the retroactive consent of the competent administrative
authority.
In the second round of the labour court proceedings the
applicant's legal interest was denied on the ground that the Disabled
Persons Board had declared its prior consent and that the dismissal
must accordingly be regarded as valid. However, that decision was
quashed by the Supreme Court on the ground that there had been no
prior consent, and thus no valid dismissal, because the Board's
decision had not become final. In the third round of the labour court
proceedings, the applicant's legal interest was then denied on the
ground that the Provincial Governor, being the competent appeal
authority, had in the meantime given his retroactive consent to the
dismissal which therefore again had to be regarded as valid.
In both instances, the Regional Labour Court expressly stated
that it was bound by the relevant administrative decisions. This view
was expressly confirmed by the Supreme Court's decision of 15 July 1986
which is the final decision in this case. It appears, moreover, that,
apart from the administrative consent, the courts did not consider any
other question which might have been of relevance for the validity of
the dismissal under civil law.
The applicant claims that the issue of the justification of
his dismissal in general could not be brought before the courts. The
administrative proceedings which, despite the possible review by the
Administrative Court, did not fulfil the requirements of Article 6 (Art. 6), in
fact determined all aspects relevant to the validity of this dismissal, and
left no room for a different decision of the courts. As a consequence he was
refused a judicial decision on the dismissal, which in the circumstances of his
case was a preliminary issue in the determination of his claim in the
suspension case.
The Government object that the decision on the preliminary
issue did not involve any decisive determination of the applicant's
civil rights. The administrative proceedings concerned only those
aspects of the dismissal which were relevant under the Disabled
Persons (Employment) Act. As the Commission found in its decision on
the applicant's first application No. 10247/83 those proceedings did
not determine his civil rights as there was a possibility to
challenge the dismissal subsequently before the Labour Courts where
other aspects of its validity could be discussed as well. Moreover,
the Government submit that the courts were bound only by the fact that
administrative consent had been granted, but not by the administrative
decisions as such.
The Commission considers that there could under special
circumstances be an issue under Article 6 para. 1 (Art. 6-1) if a court, in
reaching its decision on a civil right, was prevented by law from
investigating an essential preliminary question and if it were instead
bound by the decision of an administrative authority which did not
fulfil the requirements of a tribunal in the sense of Article 6 (Art. 6) (cf.
in such a case it could be said that, to the extent that the court was
bound by the administrative decision, there was an interference with the right
of access to court, which is implied in Article 6 para. 1 (Art. 6-1) of the
Convention (cf. Eur. Court H.R., Golder judgment of 21 February 1975, Series
A no. 18, paras. 26-35).
In the light of these considerations, the Commission finds
that the applicant's above complaint raises important and complex
questions of law and fact which require an examination of the merits.
It follows that this part of the application, too, cannot be rejected
as being manifestly ill-founded.
6. The applicant finally complains under Article 14 (Art. 14) of the
Convention that he was discriminated against as a disabled person, in
particular as regards his right of access to court under Article 6
para. 1 (Art. 6-1) of the Convention.
The Commission notes that the legal protection of disabled
persons in matters of employment is in fact fundamentally different
from that of other employees in the Austrian legal system. The
Commission is not called upon to carry out an abstract examination of
this question. However, insofar as the applicant's complaint of
discrimination is related to the particular situation in the above
labour court proceedings concerning his suspension, it is so
intimately linked to the other issues that it cannot be separated from
their examination. The Commission therefore considers that this part
of the application also raises issues which require the determination
of their merits.
For these reasons, the Commission,
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (G. SPERDUTI)