APPLLCATION/REQUÉTE N° 10247/83 Karl OEERME]ER v/AUSTRI A Karl OBERMEJER c/AUTIRICH EDECISIONof12 March 1986 on the admissibility of ttie application DÉCISION du 12 mars 1986 sur la recevabilité de la requêt e ArticG^ 6, paragraph 1 of the Co,nvention :The decision by which an administrative authority authorises an employer ao dismiss an employee does not constitûte a determination of the employee's civil rights (") .Article 6, paragraphe 1, de la Convention : La décision par laquelle l'auterité admin:!strruive autorise un emplcyeur à licencier un entployé xie tranche pas une contestation portant sur des droitaet obligations de caractère civil de l'employé (*) . TI-IE ]FACTS (Extracts) - - (fruaçais : voir p.' 77) 7'he applicant is anAastrian citizen born in 1926 who re iidés°iü Linz : 7'he applicant was employed by a private insurancz company as theDirector of their regional branch ofCice for Upper Austria . ;He was also entrusted with the administration of the compmy's building in which the branch office was ait¢a[ed . A dispute arose between the applicant and the company as to the relnuneration of this latter activity, following whic.3 the eotnpany gave notice to the applicant in ot'der to terntinate his building administration fimetions wsth e!Ffect froml Januaty 1975 . The applicant thereby lost an adclitional income of about AS 70,000 per year . (') See Irowever N° 1.1761/85, Obnrmèier v . Austria, Comm . ReiorG 15 .12.88, paras. 184-195 .Voir,parcontre,N°1761/85,Obernieierc/Antriehe,raportContm . 75 .12.88, par. 184195. 73 The applicant challenged the termination by an action lodged with the Labour Court of Vienna in which he claimed in particular that the building administration formed part of the duties under his employment contract, and that partial termination of this contract was inadmissible. The action was allowed in first instance by a decision of 23 October 1979 . . . . . . . . . . . . . . . . In connection with the above litigation, the applicant's employers suspende d 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 . 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 . The relevant proceedings are still pending . The applicant's employers eventually decided to dismiss him with effect from 31 March 1982. 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 invalidity office in accordance with the provisions of the Disabled Persons (Employment) Act . Administrative proceedings were therefore instituted for this purpose . The invalidity office declared its consent to the dismissal on 8 July 1981, and this decision was confirmed on appeal by the Provincial Governor 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 not having appealed to the ConstitutiotialCourt, the consent to his dismissal thereby became final . However, by a decision of the Supreme Court issued on 23 October 1984 in the above proceedings concerning the validity of the applicant's suspension, the notice of dismissal was declared void because it had been given to the applicant prior to the Administrative Court's above decision . The employers now have instituted new proceedings before the invalidity office seeking retroactive consent to the applicant's dismissal in accordance with Section 8 (2) of the Disabled Persons (Employment) Act. The relevant proceedings are still pending (for further details see application No . 11761/85). 74 COMI'LAINTS (Extract) . As regards the proeéedings before the Admiuistrative Court conceruing the consent to his dismissal, the applicant considers Article 6 para. 1 to be applicable because the proeeedings in question were decisive for thr, determination of his civil rights. In the applicant's view this provision was vielated in patticular because the Administrative Court did not hold a public hearing . The refusal of a public hearing was based on Section 39 (2 i(f) of the Administrative Court Aci, which allows it to dispense vvith a traring if on the basis of the written procedure it can be assumed that it will not lead to further clar:ifications. The applicant claims that this provision is as such incompatible with Article 6 para . 1 of the Convention . Its application in his case was furthermore particularly unfair because it deprived him of the possibility to challenge effeetively a number of incorrect findings in the impugned administrative decisions . They were in part based on documents submitted by his employers containing wrong and disparaging assertions which ;had not been disclosed to hitn in the administrative proceedings despite his requests to be granted access to the file . They involved in particular the wrong assertions that there had been continued efforts for a friendly setGement, and that he had unreasonably rejected all proposals made to him in tltis context . In reality there had been only one offer based on the mediation of the Minister for Social Affairs, and even this offer had not been rejected unconditionally by him . The applicant also alleges bias in this connection . TILe Minister in quéslion Avas in fact the husband of the Head of Personnel in his firm, and he was at the same time the Chairman of his trade union (whose representatives in the staff committee had backed the employers' measures and which had further refused him legal aid), and he was finally even the hierarchical superior of the invalidit) office which had declared its consent to his dismissal . The applicant finally considers the Administrative Court's decision as unfair and infringing the basic principl.s of the rule of law because it implies that a dismissal can be considered as juslified merely because the employee concetned has sued his employers in the courts and is not ready to accept a settlement on thaeir terms . 75 THE LAW (Extract) The applicant [secondly] complains of the administrative proceedings on the consent to his dismissal under the Disabled Persons (Employment) Act, claiming that these proceedings, too, concerneA, the determination of his civil rights and obligations within the meaning of Article 6 para. 1 of the Convention . He alleges in particular that the Administrative Court proceedings on this question were not public and that their conduct has not been fair. The Commission notes that the Disabled Persons (Employment) -Act (Invalideneinstellungsgesetz) requires the employer to seek the prior consent of the competent authority before he can terminate a contract of employment of a handicapped person such as the applicant . In the applicant's view, the procedure involved a decision concerning "civil rights and obligations" within the meaning of Article 6 para . I of the Convention, since the authorisation granted by the invalidity office and confirmed by the Provincial Governor and the Adntinistrative Court hadenabled his employer to dismiss him. The Commission observes, in this respect, that the procedure of which the applicant complains concervs relations between the relevant administrative authority (the invalidity office) and the employer. It is incontestable that the decision on dismissal rests ultimately with the employer himself. The Commission considers therefore that, even if it is admitted that the procedure in question may have affected rights and obligations deriving from the relations between the applicant and his employer, it cannot be considered in any way to have decisively determined civil rights and obligations within the meaning of Article 6 para. 1 of the Convention . The Commission notes that the dismissal actually pronounced with the authority's consent can subsequently be challenged in the Labour Courts, and that the applicant in fact made use of this possibility .ItfolowsthatArticle6para . I is not applicable to the administrative procedure in question ; consequently, this complaint by the applicant is incompatible ratione materiae with the provisions of the Convention. This part of application must therefore be rejected in accordance with Article 27 para. 2 of the Convention (cf. No. 8974/80 Dec . 8 .10.80, D.R. 24 p. 187). 76