frsrdg · GP04JO1 · 2002-01-01 00:00:00 — We have noted that you have failed to fulfil the obligations laid down in your employment contract by making opprobrious comments about your colleagues and your place of work in front of outsiders and also through disloyal behaviour to your employer. This caution does not constitute a disciplinary measure but merely provides clarification of certain obligations stipulated by your contract of employment. We should also like to take this opportunity of reminding you that failure to comply with an employment contract may ultimately lead to dismissal or discharge according to the Employment Protection Act. This document is dated January 9 1997 and has been signed by , the Principal, and , the Chief Executive Officer of the . As a result of complaint The Parliamentary Ombudsman, , on 17 2000 remitted the case for the second time to . was asked to respond to the assertion that the criteria of "solidarity/loyalty" had been invoked in establishing salary and, if so, what further action had been taken in this case. In addition, the Council was asked for a statement of the reasons for the caution issued to . On 20 the Municipality of submitted its response. It stated the following. The use of the criteria solidarity/loyalty in determining salary in this case. The salary criteria solidarity/loyalty was used in the municipality from January 1997 until October of the same year, when it was removed. In this particular case, therefore, it applied on two of the occasions when salaries were determined, on January 1 1997, when negotiation concerned a general review of salary levels, and on 1 1997, when specific salaries were discussed. It can be established that on the first of these occasions salary was not raised, for reasons relating to issue of the caution discussed in section 3 below. In the autumn term was appointed to a temporary post in a school in another urban district with a salary of , an increase of . is still employed by the municipality but in a different school. This school is administered by another urban district council. Where her salary is concerned it can be established that she is now earning (before the annual salary review, which has not yet been concluded). Her current salary is therefore higher than the average level for remedial teachers in the municipality, , and also higher than the median salary for the same category, . The caution was issued on January 9 1997. The minutes of the negotiations with the teachers union, which took place on 1996, make it clear that the employer referred to five events during the latter half of the autumn of 1996. During the negotiations these events were described in detail but this information is not recorded in the minutes. The minutes also state "On these occasions has, in the opinion of the management of the school and the Chief Executive Officer of the , failed to fulfil the obligations laid down in her contract of employment by making opprobrious comments about her colleagues and her place of work in front of outsiders and also by acting disloyally towards her employer to an extent that is unacceptable as it has too negative an impact on Tiunda school and its activities." The employers representatives during these negotiations are no longer employed in these positions and have therefore not been asked to comment. The information in the municipalitys salary system provides no basis for assuming that there has been any discrimination of where her salary is concerned. and submitted comments on this response. In his adjudication of 8 2000, The Parliamentary Ombudsman, , included the following observations. Sub-section 1 of the first paragraph of Article 1 of Chapter 2 of the Instrument of Government guarantees freedom of expression to all citizens in their relations with the public administration, which means the freedom to communicate information or express ideas, opinions and feelings in speech, in writing, in pictorial representation or any other way. Article 12 of the same chapter stipulates that this right may only be restricted by legislation. No such restriction applies, however, in this case. Freedom of expression is a fundamental requirement for any free debate about whether the actions of public authorities are appropriate or correct and therefore makes it possible to ascertain how public officials discharge their duties. The legislation on freedom of expression provides public employees with exactly the same guarantees as other citizens. Public employees are therefore entitled in the same way as anybody else to express their opinions even about the activities of the authority which employs them. However, the Secrecy Act (1980:100) contains provisions that restrict the right of public employees to disclose information acquired in the course of their duties. The freedom of expression guaranteed by the Instrument of Government provides a safeguard against the "state". This guarantee means that no public authority may take any action, either formally or informally, against the au-thoritys officials because they have availed themselves of their constitutional right to express their opinion. may a public authority attempt to hinder employees from using their rights, so that it may not therefore either in the form of general pronouncements or criticism of individuals try to influence the way in which employees use their right to freedom of expression. This also applies in cases when the authority considers that an employee has given erroneous information. Instead the authority is required to refute and correct such information in some suitable . Anyone employed by a public authority is therefore entitled to express opinions about its organisation and activities that differ from the employers without any reprisal from the authority. This naturally applies both prior to and after a decision has been made by the authority. The regulations guaranteeing freedom of expression do not, of course, exonerate employees from the requirement that in discharging their duties they will loyally comply with the authoritys decisions and directives about how activities are to be managed, irrespective of what opinions they may hold on this score. has alleged that she was subject to reprisals from the municipality because she availed herself of her constitutional right to freedom of expression. These reprisals have consisted both of the admonition issued to her, later converted into a caution, and also discrimination on several occasions when her salary was determined. has been asked to make a statement about the reasons for issuing a caution to . In this respect, the Council has referred to the minutes of a consultation with trade union on 1996 in which it is recorded that had failed to follow her obligations as an employee "by making opprobrious comments about her colleagues and her place of work in front of outsiders and also acting disloyally towards her employer to an extent that is unacceptable as it has too negative an impact on Tiunda school and its activities". The reference to these minutes does not provide the adequate documentation on which to base an adjudication that my referral was intended to elicit. has not, however, claimed that refused to implement decisions made by her employer or contravened any directives concerning its activities in any other way. In the absence of more information from the I am obliged to as-sume that the reason for the caution was that had made comments in front of outsiders about circumstances at her place of work. My enquiry has revealed nothing that shows that her statements were in any way in conflict with her constitutional freedom of expression. The caution therefore constitutes an infringement of right to make her opinion known and the municipality merits grave criticism in this respect. allegations about salary discrimination have been repudiated by the with reference to the median and average salaries of this category of teacher in the municipality. At the same time it has been acknowledged that on one occasion a pay rise was withheld because of the caution that had been issued. It follows from my opinion above about the validity of the issue of the caution that I am also critical of it being used to provide a basis for a decision about her salary by the municipality. The Parliamentary Ombudsman is not empowered to require an authority to take any specified measure, as requested by . The in question has now been removed. I therefore see no grounds for going any further into this issue or for responding to the questions raised by , but will close the case with the grave criticism that has been expressed. Som ett tillägg till detta referat lämnas följande upplysning. Regeringsrätten meddelade dom i det omnämnda målet (mål nr 831-1998). Domstolen anslöt sig därvid till kammarrättens ståndpunkt att ett av med stöd av 20 § lagen om bostadsbidrag fattat beslut enligt 29 § samma lag jämförd med 20 kap. 10 § AFL skall omprövas av kassan. I beslutet hänvisas till två beslut som JO meddelade . Dessa har inte tagits med här.