CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 avril 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 14327/88                       by Dennis SIBSON                       against the United Kingdom             The European Commission of Human Rights sitting in private on 9 April 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   A. WEITZEL                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   M.P. PELLONPÄÄ                   B. MARXER                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 17 October 1988 by Dennis SIBSON against the United Kingdom and registered on 28 October 1988 under file No. 14327/88;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having regard to   -        the Government's written submissions of 8 March 1990         and the applicant's written submissions of 20 August 1990;   -        the oral submissions made by the parties at a hearing on         9   April 1991;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a British citizen born in 1929 and resident in Middleton.   The facts of the case may be summarised as follows.           The applicant was employed by Courtaulds from November 1973 as a heavy goods driver.   On 24 July 1985, following an internal dispute, the applicant resigned as a member of the T.G.W.U. (The Transport and General Workers Union).   He joined the United Road Transport Union instead.   Under the mistaken conviction that there was a "T.G.W.U. closed shop agreement" at that depot, the drivers of the applicant's place of work threatened to strike if the applicant was not moved elsewhere or sacked.   Courtaulds attempted unsuccessfully to resolve the dispute but finally on 8 November 1985, the applicant was told that he had the choice of rejoining the union or moving to work at the Chadderton depot a mile away.   The applicant refused these alternatives and resigned from his job that day alleging constructive dismissal. He considered that the conditions at the Chadderton depot would have been less advantageous since, inter alia, he would have been given a different lower-grade lorry and used for short runs rather than long distance journeys, with a resulting reduction in income.           The applicant applied to the Industrial Tribunal.   By a decision dated 21 July 1986, the Tribunal held that he had been unfairly dismissed.    The Tribunal found that the proposal by Courtaulds to transfer the applicant elsewhere in order to avoid an industrial dispute was unreasonable and not for genuine operational reasons and that the whole basis of the dismissal was the applicant's exercise of his express right not to belong to a trade union.           Courtaulds appealed to the Employment Appeal Tribunal which on 16 January 1987 dismissed its appeal.   The Employment Appeal Tribunal found that there was no implied term in the applicant's contract which reasonably required the applicant to work at the Chadderton depot and agreed with the Industrial Tribunal's conclusions.           Courtaulds appealed further to the Court of Appeal which on 25 March 1988 held that there was an implied term in the applicant's contract that his employer could direct him to work at any place within a reasonable daily reach of his home.   Exercise of this right was not dependent on the existence of "genuine operational reasons" as held by the Industrial Tribunal.   The Court held that Courtaulds were therefore within their contractual rights in requiring the applicant to transfer to a nearby depot, that there was no unfair or constructive dismissal in these circumstances and that the applicant must be considered as having resigned.           On 15 April 1988 the applicant applied for legal aid to appeal to the House of Lords.   On 30 June 1990 legal aid was granted for the purpose of obtaining counsel's opinion on the merits of an appeal. Counsel advised on 8 August 1988 however that the applicant would not be granted leave to appeal.   Further legal aid was accordingly refused on 19 August 1988 in view of Counsel's opinion that there were no reasonable prospects of success. RELEVANT DOMESTIC LAW AND PRACTICE           Sections 23 and 24 of the Employment Protection (Consolidation) Act 1978 ("the 1978 Act") provide, so far as relevant, as follows:           "23 (1) ... every employee shall have the right not to         have action (short of dismissal) taken against him as an         individual by his employer for the purpose of -           (a) preventing or deterring him from being or seeking         to become a member of an independent trade union, or         penalising him for doing so;   or           (b) preventing or deterring him from taking part in the         activities of an independent trade union at any         appropriate time, or penalising him for doing so;   or           (c) compelling him to be or become a member of [any         union or of a particular trade union or of one of         a number of particular trade unions]           ...           24 (1)   An employee may present a complaint to an         industrial tribunal on the ground that action has been         taken against him by his emeployer in contravention of         Section 23."           Section 54 (1) of the the 1978 Act states that (subject to exceptions not relevant to this case) "every employee shall have the right not to be unfairly dismissed by his employer".   Part V of the 1978 Act then details the nature of this right and the remedies available for those who are unfairly dismissed: reinstatement, re-engagement or compensation.           At the relevant time, Section 58 (1) (c) of the 1978 Act, as amended by section 3 of the Employment Act 1982, provided that           "Subject to subsection (3), the dismissal of an employee         by an employer shall be regarded for the purposes of this         Part as having been unfair if the reason for it (or, if         more than one, the principal reason) was that the         employee - ...                   (c) was not a member of any trade union, or of a                 particular trade union, or of one of a number of                 particular trade unions or had refused or proposed                 to refuse to become or remain a member."     COMPLAINTS           The applicant complains of a violation of his right not to be compelled to join a trade union.   He invokes Article 11 of the Convention. PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 17 October 1988 and registered on 28 October 1988.           On 9 November 1989, the Commission decided to communicate the application to the Government pursuant to Rule 42 para. 2 (b) of the Commission's Rules of Procedure [former version] and to invite them to submit written observations on the admissiblity and merits.           The Government's observations were submitted on 8 March 1990 after one extension in the time-limit and the applicant's observations were submitted on 20 August 1990.           On 18 May 1990, the Commission granted legal aid to the applicant.           On 3 December 1990, the Commission decided to invite the parties to an oral hearing on the admissibility and merits of the case.   At the hearing, which was held on 9 April 1991, the parties were represented as follows:   For the Government:           Mr.   N.D. Parker         Agent, Foreign and Commonwealth Office         Mr.   J. Eadie            Counsel         Mr.   P. Kilgarriff       Adviser, Department of Employment         Mr.   P.A.L. Parker       Adviser, Department of Employment   For the applicant:           Mr.   J. Bowers           Counsel         Mr.   M. Beattie          Solicitor, Messrs.   Davies Arnold                                 Cooper           The applicant attended the hearing.     THE LAW           The applicant complains of being compelled to join a trade union in violation of Article 11 (Art. 11) of the Convention.   Exhaustion of domestic remedies           The Government originally submitted that the applicant had failed to exhaust the domestic remedies available to him, as required by Article 26 (Art. 26) of the Convention, since he failed to appeal from the Court of Appeal to the House of Lords.   At the hearing, they did not maintain this submission.   They contended, in the light of the prejudice, alleged by the applicant before the Convention organs, that he would have suffered materially if transferred to the other depot, that he should have made application under Section 24 of the 1978 Act, alleging contravention of Section 23 of that Act.           The Commission recalls that Article 26 (Art. 26) of the Convention only requires the exhaustion of such remedies which relate to the breaches of the Convention alleged and at the same time can provide effective and sufficient redress.   An applicant does not need to exercise remedies which, although theoretically of a nature to constitute remedies, do not in reality offer any chance of redressing the alleged breach (cf.   No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78). Nor does an applicant need to exhaust remedies which would be a mere repetition of remedies already exercised by him.           It is furthermore established that the burden of proving the existence of available and sufficient domestic remedies lies upon the State invoking the rule (cf.   Eur.   Court H.R., Deweer judgment of 27 February 1980, Series A no. 35, p. 15, para. 26, and No. 9013/80, Dec. 11.12.82, D.R. 30 p. 96, at p. 102).           The Commission recalls that in the present case the applicant left his employment because he did not accept a transfer to the Chadderton Depot.   His contention was that he had been dismissed, and he sought reinstatement.   The natural and usual remedy in respect of this claim was an application to the Industrial Tribunal that he had been unfairly dismissed.   An application alleging action short of dismissal, apart from possibly weakening, in the eyes of the Tribunal, his claim that he had been constructively dismissed, could not have led to reinstatement.           The Commission accordingly finds that the application cannot be declared inadmissible for non-exhaustion of domestic remedies.   Six months rule           The Government also submit that if the appeal to the House of Lords were not considered an effective remedy in this case, the final decision for the purposes of calculating the six months time-limit imposed by Article 26 (Art. 26) of the Convention would be the decision of the Court of Appeal of 25 March 1988.   However the application was introduced more than six months after that date on 17 October 1988. The applicant submits that the time-limit should run from the date on which the prescribed time for leave to appeal to the House of Lords expired, on which date the Court of Appeal decision became final.           The Commission is unable to agree with either party.   Appeals to the House of Lords lie in cases considered to raise fundamental issues of law of general public importance.   The applicant took the step of seeking legal aid and obtaining counsel's opinion as to the prospects of appealing.   Counsel's opinion revealed that there was no prospect of gaining leave to appeal and legal aid was refused.   The Commission considers that these are special circumstances which can be taken into account in applying the six months time-limit.   In this case therefore, the Commission finds that the six months time-limit runs from the date on which it became apparent that an appeal to the House of Lords was no longer feasible, namely, the decision of 19 August 1988, the date of the decision refusing legal aid on the basis of counsel's opinion.           Consequently, as the application was introduced within six months from that date, it cannot be rejected for failure to comply with Article 26 (Art. 26) of the Convention.   Article 11 (Art. 11) of the Convention           Article 11 (Art. 11) of the Convention reads insofar as relevant:           "1.    Everyone has the right to freedom of peaceful assembly         and to freedom of association with others, including the         right to form and join trade unions for the protection of         his interests.           2.    No restrictions shall be placed on the exercise of these         rights other than such as are prescribed by law and are         necessary in a democratic society in the interests of         national security or public safety, for the prevention of         disorder or crime, for the protection of health or morals or         for the protection of the rights and freedoms of others..."           The applicant submits that the action taken by his employers in requiring him to move to another depot or join the T.G.W.U. was a form of compulsion contrary to his rights under Article 11 (Art. 11) of the Convention for which he should have been afforded protection by the Courts.           The Government submit that any compulsion on the applicant was insufficiently serious to amount to a breach of the positive obligations arising under Article 11 (Art. 11) of the Convention, and that the legislative framework sufficiently protected the applicant's position on the facts of the case.           The Commission considers that the application raises difficult questions of fact and law which are of such complexity that their determination should depend on an examination on the merits.   The application cannot therefore be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           No other grounds for declaring the application inadmissible have been established.           For these reasons, the Commission by a majority           DECLARES THE APPLICATION ADMISSIBLE.     Deputy Secretary to the Commission         President of the Commission               (J. RAYMOND)                           (C.A. NØRGAARD)