Definitive Report - Report No 12, 1954

Case No 78 (Switzerland) - Complaint date: 31-DEC-53 - Closed

A. Analysis of the Complaint

1. 200. The complainant alleges that, by instructions dated 5 September 1950, the Federal Council decided that officials, employees and workers of the Confederation who, owing to their political activities, can no longer be considered to be sufficiently trustworthy to fill their present posts, should be dismissed. In accordance with these instructions, three postal employees, Messrs. Keller, Harry and Merky, were dismissed, although they had worked for years as postmen to the satisfaction of the authorities and the public. They were dismissed on the ground that they had attended, as observers, the meeting of the Executive Committee of the Trade Unions International of Postal, Telegraph, Telephone and Radio Workers held in Prague in August 1950.

B. Analysis of the Reply

1. 201. In its reply the Government mentions, in the first place, that Switzerland has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
2. 202. The Government also emphasises that the complaining organisation, which is attached to the World Federation of Trade Unions, has no branch in Switzerland, and considers that the fact that the former postmen, Keller, Harry and Merky, have used a foreign branch of the Trade Unions International of Postal, Telegraph, Telephone and Radio Workers as a channel for laying a complaint before the International Labour Organisation might in itself constitute a sufficient reason for the Government's making no reply to the complaint.
3. 203. However, the Government has furnished observations on the substance of the complaint. It declares that the Federal Council's instructions, dated 5 September 1950 and inaccurately reproduced by the complainant, concern the non re-election of employees of the Confederation considered untrustworthy at the close of the 1948-50 administrative period. In fact, federal officials are " elected " only for an administrative period of three years, none of them having a right to be re-elected on the expiry of an administrative period. At that moment, it is the authorities who decide in full freedom whether to renew service relationships and it is evident that the authorities cannot reappoint officials who are no longer considered trustworthy. The decision to refuse to re-elect an official is notified to the person concerned not less than three months before the expiry of the administrative period, together with an indication of the reasons therefor, and he may appeal to the Federal Council. Officials who are not re-elected but who have not been guilty of misconduct retain their acquired rights in the Staff Insurance Fund.
4. 204. While Messrs. Keller, Harry and Merky were not re-elected for the period 1951-53, the reason for this was not their political opinions but specific acts on their part making it appear probable that, according to the circumstances, they might be prepared to place the interests of their party or of organisations inspired from abroad before the interests of their country. Their participation in the Prague Congress in August 1950 was only one of the points held against them. The persons concerned appealed to the Federal Council and were given a hearing during the procedure. They have, furthermore, benefited from their rights in the Insurance Fund.
5. 205. The Government categorically denies that the non-re-election of these three employees constitutes a violation of trade union rights and democratic freedoms.

C. C. The Committee's conclusions

• Question as to the Receivability of the Complaint
  206. 206 The Government indicates that the fact that the complaint has been presented by an organisation which has no branch in Switzerland might constitute sufficient reason for its not replying to the complaint.
  207. 207 The Committee considers that the fact that a complaint has been presented by a trade union organisation which has no branch in the country complained against is, in fact, a point to which it should pay particular attention when 1t comes to examine the merits of the complaint, for the simple reason that, as the Committee observed in its First Report, it may be difficult to decide in some cases how much reliance is to be placed on the evidence of persons who are not resident in the country in question, In such cases, therefore, it is necessary that the evidence submitted for consideration by the Committee should be particularly substantial.
  208. 208 This factor, however, should not be taken into account when deciding as to the receivability of the complaint. Circumstances may, in fact, arise in which only persons residing outside the country complained against enjoy the conditions of freedom necessary to enable them to submit for the consideration of the Committee a case involving violations of freedom of association which are beyond question. Further, according to the decisions adopted by joint agreement in 1951 by the Economic and Social Council and the Governing Body of the I.L.O, the only complaints receivable, with the exception of those officially transmitted to the I.L.O by the United Nations, are those which come either from organisations of workers or employers or from governments. In its Ninth Report the Committee declared that complaints must be presented in writing duly signed by a representative of a body entitled to present them and as fully supported as possible by proof of allegations relating to specific infringements of trade union rights. In the present case the complaint has been presented in the prescribed form by an international trade union organisation, and for that very reason is receivable.
  209. 209 In this case the point is of purely theoretical interest because the Government has been good enough to furnish its observations on the actual substance of the complaint.
• Allegations relating to the Dismissal of Three Postmen
  210. 210 The complainant alleges that Messrs. Keller, Harry and Merky were dismissed although they had worked for years as postmen to the satisfaction of the authorities and the public. The complainants state that their dismissal took place because, by virtue of instructions issued by the Federal Council on 5 September 1950, they were no longer considered trustworthy, having attended, in August 1950, a meeting of the Executive Committee of the Trade Unions International of Postal, Telegraph, Telephone and Radio Workers in Prague.
  211. 211 It would appear from the explanations given by the Government that the legal status of employees of the Swiss Confederation presents certain particular features. In fact, federal officials are elected, that is to say, appointed, for an administrative period of three years, but, on the expiration of this period, they have no right to be reappointed. The authorities decide in full freedom whether the service relationships should be renewed at the end of each administrative period. Although in practice it would appear that cases of non-re-election of officials are somewhat rare, it is nevertheless the case, as the Government points out, that the federal authorities are entirely free to refrain from reappointing officials who are no longer considered trustworthy. Under the provisions of the regulations the Government is simply bound to inform the person concerned, not later than three months before the expiration of the administrative period, of any decision not to re-elect him and must indicate the reasons for which he is regarded as " untrustworthy ". It appears from these explanations that, contrary to the allegation made by the complainant, the persons concerned were not dismissed, in the real meaning of the word, because they had no right to retain their employment, but that the service relationships were terminated at the end of an administrative period.
  212. 212 The Government declares that the participation of Messrs. Keller, Harry and Merky in the Prague Congress in August 1950 was one of the reasons for which they came to be considered untrustworthy. In this connection the Committee, while reaffirming the importance it attaches to the principle that a worker should never be prejudiced in any way because of his affiliation to a trade union or because of his participation in trade union activities, notes, however, that, if the persons concerned were considered untrustworthy by the Government, this was not due solely to their participation in the Prague Congress but also to specific acts which made it appear probable that the persons concerned might, according to the circumstances, be prepared to place the interests of their party or of foreign organisations before the interests of their country.
  213. 213 The Committee also notes that the decision not to re-elect the three officials in question has been the subject of an appeal to the Federal Council and that the persons concerned were given a hearing during the course of the procedure.

The Committee's recommendations

1. 214. In these circumstances the Committee, noting that, having regard to the particular features which affect the legal status of federal officials, the persons concerned were not dismissed in the normal sense of the term, that the Administration, in the exercise of its discretionary power, simply decided not to renew their contracts when they expired, and that they enjoyed the right to appeal against this decision and to be given a hearing during the procedure, considers, while reaffirming the importance which it attaches to the principle that a worker should never be prejudiced in any way because of his lawful trade union activities, that the complainant has not furnished proof that the Government in this case infringed trade union rights and, therefore, recommends the Governing Body to decide that the case does not call for further examination.