United States: Dutch Court Allows Dismissal Of Troublesome Works Councils Member, Despite Termination Restrictions

Last Updated: February 1 2019
Article by Eric Van Dam

Members of works councils ("WC members") enjoy special protection from dismissal. One persistent misunderstanding is that it is impossible for employers to dismiss WC members. As recently clarified by the Sub-District Court of North Holland, termination is certainly possible, provided that the reason for dismissal is not linked to the employee's actual membership of the WC.

Background of the Case

The employee, who had been employed since 2002, was also chair of the WC. After his performance was found inadequate in a 2014 review, he was coached throughout 2015. There was a brief improvement, after which he fell back into his old ways. Although the employer continued coaching the employee, and reassigned him in 2016, his performance remained unsatisfactory. The employer then initiated additional performance improvement steps in 2018.

Over this period, the relationship between the employee and the company director deteriorated. The latter accused the employee of having abused his membership in the WC after a promotion did not come to fruition, which led to a drastic change in the WC's attitude and level of cooperation with the employer. The director also issued an official warning to the employee, because he had complained by phone to the Supervisory Board1 about the director's performance.

After the employee indicated that he felt the employer was discriminating against him "because of his ponytail and his appearance," he filed a discrimination complaint against the director with the Supervisory Board in June 2018. An external complaints committee convened in response to this allegation and conducted an investigation. The employee also filed an integrity report with the Integrity Reporting Agency against one of his colleagues, who had in turn filed a complaint against him with the employer.

When both complaints were found to be baseless, the employer applied to the Sub-District Court to terminate the employment contract, claiming a disrupted employment relationship. According to the employer, the disruption stemmed from: (1) the conflict, going back for years, about the employee's performance; (2) the fact that he ignored criticism; and (3) his undermining of the director's position. In 2018, the initial problem with performance escalated into a disrupted employment relationship, primarily due to the unfounded complaints about a colleague and the director.

According to the employee, his position as chair of the WC was the real reason behind the application for cancellation of employment. He argued that the ban on termination should prevent his dismissal. By law, WC members are insulated from termination based on conduct related to their WC activities. This protection enables them to fully and independently carry out their duties as part of the WC, even when those duties involve being critical of the employer.

The Sub-District Court's Ruling

In this case, the Sub-District Court held that the termination request was not linked to the employee's membership of the WC, and, therefore, the ban did not preclude termination. The court noted that the director should not have reprimanded the employee for the (apparent) change in the WC's demeanor, nor given him an official warning for contacting the Supervisory Board. Nonetheless, that conduct did not mean that the employer sought termination because of the employee's membership in the WC.

The Sub-District Court agreed with the employee that a WC member may be critical of the employer and understood that there were robust discussions between the employee as a WC member and the director. As the court explained, the employee's (wrongful) filing of an official complaint against the director for discrimination went several steps beyond his role as a critical employee. The Sub-District Court understood that the director took this complaint hard and that, partly in light of the performance discussions that were already going on, this complaint proved to be the last straw. The court found that the performance issues had devolved into a disrupted employment relationship, creating an unworkable and irremediable situation.

As the employee had exacerbated the relationship by filing serious complaints against the director, the employer could not be expected to continue in its efforts to remedy this relationship. The Sub-District Court thus allowed the application for termination of the employment contract, while awarding a transition payment to the employee.

Conclusion

This judgment shows again that WC members may well – and rightly – enjoy a good degree of protection, so as to be able to perform their duties as employees' representatives without disruption or fear for their own positions. That protection does not, however, represent carte blanche for WC members to abuse their special position, allowing them to misbehave as employees.

Footnote

1 The supervisory board is typically responsible for supervising the management board and the general course of affairs in the company.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions