Dismissing troublesome WC member despite termination ban

Members of works councils (“WC members”) enjoy special protection from dismissal. One persistent misunderstanding is that it is impossible to dismiss WC members. This is certainly possible, provided that the reason for dismissal is not linked to actual membership of the WC. A recent judgment of the District Court of North Holland clarifies the position once again.

What was the background here?

The employee, who had been an employee since 2002, was also chair of the WC. After his performance had been judged inadequate in 2014, he was enrolled in a coaching programme in 2015. There was a brief improvement, after which he fell back into his old ways, and the coaching programme was continued in 2016. The employee was reassigned with effect from 1 July 2016, despite which the problems with his performance continued. The employer then initiated a performance programme 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 of the WC after a promotion did not come to fruition, which led to a drastic change in the WC’s composition. The director also issued an official warning to the employee, because he had complained by phone to the Supervisory Board 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 was convened in response to this and there was 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 held to be without foundation, the employer applied to the Sub-District Court to terminate the employment contract on the basis of a disrupted employment relationship. According to the employer, the background to this disruption was a conflict, going back for years, about the employee’s performance, the fact that he ignored criticism and 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 critical stance as chair of the WC was the real reason behind the application for cancellation and the ban on termination should prevent his dismissal.

The ruling

The Sub-District Court held that the application for termination was not linked to the employee’s membership of the WC, so that the ban on termination did not prevent termination. Admittedly, the director ought not to have reprimanded the employee for the (apparent) change in the WC’s composition, nor given him an official warning for contacting the Supervisory Board. That did not mean, however, that the application for termination was linked to the employee’s membership of the WC.

The Sub-District Court agreed with the employee that a WC member may be critical and understood that there were robust discussions between the employee as a WC member and the director, but (wrongfully) filing an official complaint against the director for discrimination went several steps beyond being merely critical. 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 proved to be the last straw. The result was that the discussion on performance had developed into a disrupted employment relationship, such as to create an unworkable and irremediable situation.

As the employee had exacerbated the relationship so much by filing (unfounded) serious complaints against the director, the employer could not be expected to continue in its efforts to remedy this relationship.

The Sub-District Court allowed the application for  termination of the employment contract, while awarding a transition payment and with no fair compensation.

Conclusion

This judgment just goes to show once 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.

Eric van Dam (evd@clintlegal.com / +31 20 820 0330)