Application No. 15026/89
by K.O.
against Austria
The European Commission of Human Rights sitting in private on
14 January 1993, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
Mr. H.C. KRÜGER, 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 30 September 1988
by K.O. against Austria and registered on 23 May 1989 under file No.
15026/89;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1926, is an Austrian national resident in
Linz. He was formerly employed as the director of the regional branch
office of a private insurance company. He is disabled. Before the
Commission, the applicant has been represented since 24 September 1992
by Mr. H. Blum, a lawyer practising in Linz.
a. The background of the application
The present application is related to his two previous
applications which all arose from disputes with his employer.
His first Application No. 10247/83 related to court proceedings
brought by the applicant against his employer and to administrative
proceedings concerning his subsequent dismissal. It was declared
inadmissible on 12 March 1986 (D.R. 46 p. 77).
Application No. 11761/85 concerned court proceedings in respect
of the applicant's suspension from his duties. The Commission declared
this application admissible on 10 July 1987. On 28 June 1990 the
European Court of Human Rights (Series A no. 179) found a breach of
Article 6 para. 1 of the Convention in that the applicant did not have
an effective judicial review, as the Austrian labour courts, on a
preliminary question, had considered themselves bound by administrative
decisions which were not delivered in conformity with the requirements
of Article 6 para. 1. There was also a breach of Article 6 para. 1 in
that the proceedings in question had exceeded a "reasonable time".
The main course of the various domestic proceedings has been
established by the Commission in its Report, pursuant to Article 31 of
the Convention, as regards Application No. 11761/85 (Comm. Report
15.12.88), and stated by the Court in the Obermeier judgment (loc.
cit., pp. 8-20, paras. 8-60). Having regard to the parties'
submissions, these facts may be summarised as follows.
In the context of a court action brought against his employer,
the applicant was suspended from his duties in March 1978.
In March 1981 the applicant instituted court proceedings before
the Linz Labour Court (Arbeitsgericht) challenging his suspension.
On 23 April 1981 the Linz Labour Court dismissed the applicant's
action. On 25 November 1981 the Linz Regional Court (Landesgericht),
upon the applicant's appeal (Rekurs), quashed the Labour Court's
decision on the ground that it had failed to ascertain whether the
conditions for suspension of an employee had been met. The Regional
Court's decision was confirmed by the Supreme Court (Oberster
Gerichtshof) on 30 March 1982.
In the course of these proceedings, on 14 July 1981, the
applicant's employer had pronounced the applicant's dismissal as from
31 March 1982. The necessary authorisation under the Disabled Persons
(Employment) Act (Invalideneinstellungsgesetz) - the applicant having
been declared disabled for the purposes of that Act in 1980 - had been
granted by the competent authority. The administrative appeal
proceedings instituted by the applicant against the authorisation
eventually remained unsuccessful. The administrative decision became
final on 9 March 1983.
In the remitted suspension proceedings, the decisive issue was
whether or not the applicant still had a legal interest (Rechtsschutz-
bedürfnis) in a court decision after his dismissal the lawfulness of
which he challenged. The applicant remained unsuccessful at first and
second instance. On 23 October 1984 the Supreme Court quashed the
decisions dismissing the applicant's action on the ground that his
dismissal should not have been pronounced before its administrative
authorisation had become final. His dismissal being thus invalid, the
applicant had an interest in pursuing his suspension case. The case
was again remitted to the Linz Labour Court.
On 21 December 1984 the employer again pronounced the applicant's
dismissal, which was supposed to take effect on 30 June 1985.
On 30 January 1985, in the remitted suspension proceedings, the
Linz Labour Court revoked the applicant's suspension. On 31 July 1985
the Linz Regional Court, upon the employer's appeal, quashed the Labour
Court's decision. The Regional Court considered itself bound by a
decision of the Provincial Governor dated 17 June 1985 granting the
employer's request for a retroactive authorisation of the dismissal
pronounced in July 1981. The applicant had, therefore, no longer any
legal interest in obtaining a revocation of his suspension. The
Regional Court did not stay the proceedings pending appeal proceedings
brought by the applicant against this retroactive authorisation which
were eventually successful. On 15 July 1986 the Supreme Court
dismissed the applicant's appeal on points of law, thereby confirming
that the Provincial Governor's decision had been binding.
On 19 November 1987, following successful appeal proceedings, the
Linz Court of Appeal ordered the proceedings concerning the suspension
to be reopened but allowed the employer's application for a stay
pending the conclusion of the proceedings concerning the dismissal of
21 December 1984.
B. The present application
The present application relates to court proceedings concerning
the second notification of dismissal, sent to the applicant on
21 December 1984. The course of the labour court proceedings which
concerned both the first dismissal of 14 July 1981, and the second one
of 21 December 1984, has been summarised in the Court's Obermeier
judgment (loc. cit., pp. 12-14, paras. 30-39) as follows:
"30. ... On 16 August 1982 he [the applicant] brought an action
in the Linz Labour Court for a declaration that his dismissal was
invalid. He argued that the company had not waited until the
authorisation given by the Disabled Persons Board had become
final in law and had in addition failed to inform the works
council, as it was required to do under section 105 § 1 of the
Industrial Relations Act (Arbeitsverfassungsgesetz ...).
31. After having stayed these proceedings on 9 December 1982,
the court dismissed Mr. Obermeier's action on 14 August 1985 on
the ground that, in the meantime, the Provincial Governor had
given his retroactive consent to the applicant's dismissal from
employment ... The parties did not appeal from this decision.
32. Following the Administrative Court's judgment of 21 May
1986 ..., the applicant filed an application on 22 July 1986 for
the proceedings to be reopened (Wiederaufnahmeklage) and
requested that such proceedings also deal with the second
dismissal from employment. The Linz Labour court's judgment of
24 September 1986, which allowed this application, was upheld by
the Linz Court of Appeal (Oberlandesgericht) and, on 15 July
1987, by the Supreme Court.
33. Ruling on the merits on 15 September 1987, the Labour Court
found that Mr. Obermeier had never been validly dismissed. It
took the view that the effects of the prior authorisation given
by the Board were not permanent and that such authorisation could
provide the legal basis only for a dismissal which was closely
linked to it both in terms of the period of time which had
elapsed and as regards the substance; this was not the case in
respect of the second dismissal.
34. On an appeal by the company, the Linz Court of Appeal set
aside this decision on 15 March 1988 on the ground that the
situation was a continuous one so that there was a sufficient
connection between the consent given by the administrative
authority and the dismissal from employment pronounced on
21 December 1984.
35. The applicant claimed that he had cited at the hearing, as
an additional ground for the invalidity of his dismissal,
disregard of clause 33 § 9 of the collective agreement ..., which
requires the valid consent of the works council. The transcript
of the hearing, notified to the applicant on 31 March 1988, did
not refer to his statements in this respect; he therefore lodged
an objection to it on 5 April 1988, which the Court of Appeal
dismissed on 12 April as out of time.
36. In the meantime, the applicant had appealed on a point of
law against the Court of Appeal's judgment of 15 March 1988 ...
On 23 June 1988 in a supplementary memorial he stressed that for
his second dismissal no valid prior consent had been obtained
from the works council as was required under clause 33 § 9 of the
collective agreement.
37. The Supreme Court dismissed the appeal on 29 June, holding
that section 105 of the Industrial Relations Act, by virtue of
which any dismissal from employment without prior consultation
of the works council is invalid, did not apply to a disabled
person. In such cases the consultation of the works council had
already been effected by the interposition of the Board, acting
in pursuance of section 8 § 2 of the Disabled Persons
(Employment) Act. The Supreme Court declared the memorial of
23 June inadmissible under the rule that only one appeal may be
lodged (Grundsatz der Einmaligkeit des Rechtsmittels ...).
38. On 30 June 1988, even before a copy of the Supreme Court's
judgment had been served on him, the applicant instituted new
proceedings in the Linz Regional Court, sitting as a social and
labour court. He sought a declaration that the second dismissal
was void on the ground that the company had not obtained the
prior consent of the works council, as it was required to do
under clause 33 § 9 of the collective agreement. The court
dismissed the action on 23 September 1988, finding that the
agreement given by the works council in 1981 was also valid in
relation to the 1984 dismissal.
The Court of Appeal, and subsequently the Supreme Court,
dismissed Mr. Obermeier's appeals on 28 February and 14 June 1989
respectively.
39. On 21 March 1989 the applicant applied again to the Linz
Regional Court for a declaration that the dismissal of
21 December 1984 and the authorisation given by the
administrative bodies were void as being contrary to honest
practices (Sittenwidrigkeit). On 12 May 1989 the court rejected
the claim. It took the view that the administrative organs in
question had, by implication, expressed their opinion on the
matter by giving their agreement pursuant to section 8 § 2 of the
Disabled Persons (Employment) Act, because an authorisation
accorded for a dismissal contrary to honest practices would have
been inconsistent with the criteria which the Administrative
Court had laid down for the validity of such decisions. On
10 October 1989 the Linz Court of Appeal upheld this judgment.
On appeal on points of law by Mr. Obermeier, the Supreme Court
quashed these two decisions but dismissed his application on
14 March 1990, on the ground that the judicial decisions which
had closed the proceedings in which the applicant had already
contested the validity of his dismissal in the labour courts ...
were final."
On 31 January 1991 the applicant and his employer entered into
an agreement concerning all disputes between them. The agreement
provided in particular for payments to the applicant. It also stated
that the employer had withdrawn its appeal against the judgment of the
Linz Labour Court of 30 January 1985 concerning the applicant's
suspension, and that any other disputes between them remained stayed
or suspended, but that the proceedings before the Convention organs or
other proceedings against Austrian authorities were not affected by the
agreement.
COMPLAINTS
1. The applicant complains that, as regards the question of the
substantive justification of his dismissal, he was denied access to
court, as required by Article 6 para. 1 of the Convention, in that the
Austrian labour courts considered themselves bound by an administrative
decision and did not, therefore, review this matter.
2. The applicant complains under Article 3 and Article 6 para. 1 of
the Convention that the altogether three sets of labour court
proceedings concerning his dismissal were, for further reasons, not
fair, and amounted altogether to inhuman and degrading treatment.
He submits in particular that in the first set of proceedings
the Linz Court of Appeal, in its decision of 15 March 1988, and the
Supreme Court, in its decision of 29 June 1988, did not duly consider
his submissions relating to the requirement of consent by the works
council. He also considers that the second set of proceedings was
unfair on the ground that the Linz Regional Court, in its decision of
23 September 1988, the Linz Court of Appeal, in its decision of
28 February 1989, and the Supreme Court, in its decision of 14 June
1989, not, ex officio, take the collective agreement into account, and
found that S. 33 para. 9 of this collective agreement had been complied
with. Moreover, he was allegedly not allowed to make further
submissions concerning the validity of the works council's consent to
his second dismissal. As regards the third set of proceedings, he
complains about the Supreme Court's decision of 14 March 1990 rejecting
his case as "res judicata".
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 30 September 1988 and
registered on 23 May 1989.
On 6 January 1992 the Commission decided to communicate the
application to the respondent Government. The applicant's request to
reopen the proceedings concerning Application No. 10247/83 was refused.
The Government's observations were submitted on 26 June 1992.
The applicant's observations in reply were submitted on 24 September
1992.
REASONS FOR THE DECISION
The Commission notes that the applicant, in his previous
Application No. 11761/85 concerning his suspension in March 1978,
complained that he had been refused access to a court which could have
determined the lawfulness of his dismissal in 1981 and, consequently
of his suspension. The Court, in its judgment of 28 June 1990, found
a violation of the applicant's right of access to a court, as
guaranteed by Article 6 para. 1 of the Convention in that there was no
effective judicial control regarding the social justification of his
dismissal (loc. cit., pp. 21-23, paras. 66-70).
The Commission considers that the applicant's present application
raises the same legal issue as regards the proceedings concerning his
dismissals, which had already terminated at the time of the above Court
judgment of 28 June 1990. While the dismissal proceedings were
formally separated from the suspension procedure, they arose out of the
same factual background and it was clear, under Austrian law, that the
binding force of the decision by the Disabled Persons Board would again
be decisive.
The Commission notes that all the disputes concerning the
applicant's former employment have been settled by the agreement
entered into by the applicant and his former employer on 31 January
1991.
In these particular circumstances, the Commission finds that it
is not justified to continue the examination of the present
application, pursuant to Article 30 para. 1 (c) of the Convention.
Moreover, there are no reasons of a general character affecting respect
for Human Rights as defined in this Convention which require the
further examination of this application.
For these reasons, the Commission, by a majority,
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy