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FOURTH SECTION

DECISION

Application no. 24955/15
Odílio Freitas NÓBREGA
against Portugal

The European Court of Human Rights (Fourth Section), sitting on 18 October 2022 as a Committee composed of:

Armen Harutyunyan, President,
Jolien Schukking,
Ana Maria Guerra Martins, judges,
and Crina Kaufman, Acting Deputy Section Registrar,

Having regard to:

the application (no. 24955/15) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 15 May 2015 by a Portuguese national, Mr Odílio Freitas Nóbrega, who was born in 1976 and lives in Funchal (“the applicant”), and was represented by Mr F. Teixeira da Mota and Mr J. Palla Lizardo, lawyers practising in Lisbon and Funchal, respectively;

the decision to give notice of the application to the Portuguese Government (“the Government”), represented by their Agent, Ms Maria de Fátima da Graça Carvalho, Deputy Attorney General;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the applicant’s complaints under Article 10 of the Convention on account of his dismissal on 31 October 2006 by his employer, company O., a private complementary enterprise group (agrupamento complementar de empresas), following statements made by him to the media in respect of an eight-day suspension from duty which had been imposed on him some months before.

2. On 1 August 2006 the applicant was suspended from his duties by company O. for eight days with loss of remuneration and seniority for breaching the company’s regulations on operating vehicles at the site and misuse of the company’s facilities.

3. On 8 August 2006, Diário de Notícias da Madeira, a local newspaper with a circulation of 17,421 copies and an online edition, published an article in which it was reported that the applicant had stated that his suspension from duty “was unfair and motivated by his trade-union activity” and that the suspension represented his “employer’s retaliation for [the applicant’s] trade-union activity”.

4. On the same day, Jornal de Notícias, another major newspaper on the island of Madeira, also published an article, reporting as follows:

“... [the applicant] complains of persecution by his employer following public denunciations concerning [company O.]’s conduct towards [those engaged in] trade-union activity, which, in his words, led to disciplinary proceedings in which he was suspended from his duties, with the company’s ultimate objective being his dismissal.

...

The employee says that the proceedings did not uncover facts that would justify the application of sanctions and that the employer decided to sanction him regardless ...

5. Also on 8 August 2006, during a news broadcast by “RTP Madeira”, a journalist quoted the applicant as stating that the disciplinary sanction “was unfair and due to reasons linked to trade-union activities” while another journalist reported that the applicant had stated that this was an “unfair and arbitrary act of oppression perpetrated by [company O]” and that the whole situation was “too ridiculous”.

6. On 9 August 2006, on a news broadcast by “RTP Madeira”, a news ticker was displayed, affirming:

“Employee on hunger strike for more than twenty-four hours to contest alleged oppression of trade union.”

7. On the same news broadcasted, the applicant stated:

“Sense must prevail ...

... there is no mutual respect; the company didn’t take any action to begin a conversation ...

If they are my owners, then they have the responsibility to determine when I can eat and take my medicines again ...”

8. On 11 August 2006 an interview with the applicant was published in one of the island’s main newspapers, Tribuna da Madeira, in which he stated:

“... They started threatening me because of trade-union activity I engaged in during lunch time and the way we talked to our colleagues; they saw it as an outrage, a destabilisation ...

The company threatened me, saying that they would submit me to medical committees to the point that I would no longer have a job ...”

9. Following these events, on a non-specified date, 60 of the 74 workers of company O. gathered in a plenary meeting held on the company O’s premises and issued a joint declaration, criticising and disavowing the applicant’s conduct, and stating that it had only served his own interests.

10. On 20 August 2006 Tribuna da Madeira published an article reporting that the applicant had stated that the above declaration had been signed by “persons who [could] not even read or write ... [who had been] pressured by the company’s director to sign it”.

11. On 30 August 2006, the workers gathered again and signed a new declaration, stating their academic qualifications and declaring:

“... the actions taken by [the applicant] as a trade unionist did not dignify the workers, were radical, remote from reality and without negotiating capacity, were swayed by vindicative principles and taken individually, without any consultation with the workers.”

12. Disciplinary proceedings were initiated against the applicant by company O. on account of his statements to the media. On 31 October 2006 the applicant was dismissed.

13. The applicant challenged his dismissal before the Funchal Labour Court which, on 17 May 2013, found that his dismissal had been lawful. On 26 March 2014, following an appeal by the applicant, the Lisbon Court of Appeal upheld that decision. On 19 November 2014 the Supreme Court of Justice dismissed a further appeal lodged by the applicant.

14. The domestic courts attributed the totality of the statements (paragraphs 3 to 8 above) to the applicant and, after assessing the evidence, established that they were false, purely defamatory in nature, and aimed at jeopardising the employer’s reputation. Notwithstanding the fact that the applicant was a trade unionist, the domestic courts considered that his actions against his employer were personal and purely vindictive, and therefore not connected with his trade-union activities. They also found that the applicant had breached his duty of loyalty towards company O., breaking the mutual trust between the company and himself as its employee, and creating a climate of tension on the labour premises. They concluded that the dismissal was therefore justified.

15. The judgment of the Lisbon Court of Appeal concluded as follows:

“... the applicant started a personal dispute for the purposes of which he used his trade-union activities purely as a cover, since it was only ever his professional relationship that was in question, and he overstepped the limits of acceptable and justified criticism authorised by the right to freedom of expression”.

16. Under Article 10 of the Convention, the applicant complained that he had been unfairly dismissed on account of his statements to the media.

THE COURT’S ASSESSMENT

17. In the instant case, the disciplinary measure of dismissal complained of by the applicant was not taken by a State authority but by a private company (see paragraphs 1 and 2 above). The Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), will therefore examine the applicant’s complaint from the standpoint of the positive obligations of the respondent State under Article 10 of the Convention read in the light of Article 11 of the Convention (see Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, §§ 58-61, ECHR 2011).

18. The general principles in matters of freedom of expression as applicable in the present case have been summarised in Palomo Sánchez and Others, cited above (§§ 53-57). The Court is mindful that employees owe to their employer a duty of loyalty, reserve and discretion. This duty doubtlessly also applies to employees in private-law employment relationships. The Court’s task is therefore to weigh an employee’s right to freedom of expression against the protection of the employer’s reputation and commercial interests and the employee’s duty of loyalty (see Heinisch v. Germany, no. 28274/08, § 64, ECHR 2011 (extracts)).

19. The domestic courts considered that the applicant’s statements concerning trade union activity were false and purely defamatory in nature, and were imparted via the media with the aim of jeopardising the employer’s reputation (paragraph 14 above).

20. It follows that the grounds given by the domestic courts therefore pursued the legitimate aim of the protection of the rights of others, specifically the employer’s reputation and the professional work environment at the company (see paragraphs 9, 10, 14 and 15 above).

21. As to the proportionality of the impugned sanction, it should be noted that the statements were produced by the applicant in the context of a dispute with his employer concerning a disciplinary sanction which had been applied to him previously (paragraph 2 above).

22. Even if the requirement to act in good faith in the context of an employment contract does not imply an absolute duty of loyalty towards the employer or a duty of discretion to the point of subjecting the worker to the employer’s interests, certain manifestations of the right to freedom of expression that may be legitimate in other contexts are not legitimate in that of labour relations (see Palomo Sánchez and Others, cited above, § 76).

23. In the present case, the Court considers that the applicant’s statements concerning trade-union activity could not be considered a matter of general interest as they were found by the domestics courts to have been false (paragraphs 14-15 above). The Court sees no reason to depart from the findings of the domestic courts.

24. It also appears that the applicant, in expressing his views, created a climate of tension on the labour premises (see paragraph 9-11 above).

25. Furthermore, employers generally enjoy broad discretion in determining the sanction that is best suited to accusations against an employee (see Palomo Sánchez and Others, cited above, § 75).

26. Lastly, the Court notes that the domestic courts conducted a comprehensive examination of the circumstances of the case and carefully weighed up the competing interests at stake, taking into account the boundaries of the right to freedom of expression and the mutual rights and obligations specific to labour relations and the professional environment. They considered that the dismissal had not been disproportionate to the legitimate aim pursued, namely the protection of the reputation of company O. and found that the applicant’s conduct had not been connected to his trade-union activity. On the contrary, it had been personal and purely revengeful and had rendered coexistence in a professional environment untenable, damaging not only the relationship between the employer and the applicant, but also the overall working environment for the company’s other workers (see paragraphs 14 and 15 above).

27. In view of the foregoing, the Court considers that the applicant’s behaviour constituted a particularly serious form of misconduct capable of justifying the most severe disciplinary sanction. His dismissal was thus not excessive or manifestly disproportionate and did not require the State to afford redress by annulling it or by replacing it with a more lenient measure (compare Palomo Sánchez and Others, cited above, § 77).

28. Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 November 2022.

Crina Kaufman Armen Harutyunyan
Acting Deputy Registrar President