Suspension Works Council (‘WC’) member: Supreme Court broadens the possibilities
Suspending a member of the works council is no easy task and that is a good thing. The idea of the legislator behind this is that an elected Works Council member must be protected and has great freedom to say and write what he wants to make the employee participation process work. The legislator has opted for protection similar to the position of a democratically elected representative.
This construction of “democratic protection” is somewhat “strange” because the Works Council’s consultative meeting with the director is difficult to compare with, for example, a meeting of Mayor and Aldermen and an elected city councilor. But still, this is the structure and history of law. In practice, this sometimes causes problems because, if a WC member “misbehaves”, this WC member cannot be properly addressed by the WC itself or the director, given the design of the protection.
The law regulates it in Article 13 WOR. It has been arranged there that if a Works Council member seriously hindering consultation with the entrepreneur, the Works Council or the director may request the subdistrict court to exclude the Works Council member from the Works Council. Before such a request can be made, the Works Council member must be heard.
What then is “seriously hindering”? The well-known example of ‘serious hindrance’ by a WC member is when information, which leaves under embargo by the director (Article 20 WOR), is nevertheless disclosed by the WC member. Breaking confidentiality hinders the functioning of the consultation between the Works Council and the director.
In practice, however, there are more situations imaginable in which the behavior or attitude of a Works Council member “seriously hinders the functioning of the Works Council.” For example, a WC member can be a notorious quarrel-seeker that causes the OR to malfunction. However, Article 13 WOR is not intended for this. According to legal history, a serious hindering of the activities of the Works Council exists if the Works Council member deliberately and repeatedly causes the works of the Works Council to stagnate. This concerns, for example, violations of the democratic rules of the game, but not expressing a dissenting opinion or taking a minority point of view. The exclusion on the grounds of WOR Article 13 (1) is in fact an order measure.
The Supreme Court recently issued a judgment on March 27, 2020, in which these restrictions on “serious hindering” were discussed. The case concerns a WC member, also FNV executive, who has been employed since 1979 (i.e. 31 years) and has been a WC member since 2011. He has previously been addressed as to his attitude and unsubtle comments, but if he makes a comment during a consultation meeting that refers to the skin color of the system administrator who was present at the meeting, the director ends the meeting. Enough is enough. The director and the Works Council make a joint request to the subdistrict court to exclude him from the works council activities. The Works Council member was heard beforehand. The subdistrict court has granted the request for exclusion, but the works council member appeals. The high court overturns the decision of the subdistrict court because the court uses a limited explanation of “serious hindering” of article 13 WOR. According to the court, this does not include discrimination. That is, of course, very unsatisfied, so cassation is initiated.
The Supreme Court does not overturn the court’s decision, but does provide some indications about that “serious hindering”. Indications from which it follows that this should not be interpreted too sparingly and that other behaviors or circumstances may also apply as “serious hindrance”. The Supreme Court states that giving a final warning, as stated by the court, is not a necessary condition. According to the Supreme Court, the seriousness and nature of a behavior is so serious that it is sufficient for an exclusion request. The condition that the high court had formulated that the exclusion request must explicitly state the reasons for the ‘serious hindering’ then does not always constitute a requirement according to the Supreme Court.
Conclusion: it seems that the Supreme Court explains the possibilities to suspend a Works Council member in a broader sense than has hitherto been the case. Not only protection of the ‘democratic participation process’, but also misconduct by a WC member can lead to suspension. This seems good news because it seems somewhat superfluous to have to explain that obvious discrimination hinders the employee participation process. That is self-explanatory.
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