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)