Obstructive Works Council member; red card?

Pursuant to the Dutch Works Councils Act (Wet op de ondernemingsraden, “DWCA”), the sub-district court can exclude a Works Council (“WC”) member from all or several of the Works Council’s activities. Either the company or the Works Council itself can submit a request for this. The company may only ask for exclusion on the grounds that the WC member is seriously obstructing consultation meetings between the company and the WC, while the WC can do this if the WC member is seriously obstructing its work.

“Serious obstruction” must entail misconduct, such as intentionally and repeatedly causing the work to stagnate and infringing the democratic rules of the game. The WC member must be given an opportunity to express his or her views on any request for exclusion, before it is submitted.

The Arnhem-Leeuwarden Court of Appeal recently issued a finding on an exclusion request of this sort.

What was the background here?

The WC member in question insinuated, with considerable regularity, that the executive board was unreliable, expressed grave criticism and unfounded accusations against the executive board and repeatedly raised topics for discussion that were not on the agenda. He also accused his fellow WC members of being unreliable and being hand-in-glove with the executive board.

At a number of WC consultation meetings, both the executive board and his fellow WC members asked him to moderate his comments. The WC member paid no heed to this, however. For instance, before one of the WC consultation meetings, he said about an IT employee with coloured skin who was repairing the overhead projector that it was “just grand that we have some blacks to help us out”.

The executive board then informed the WC member, at a meeting, that it found his attitude and conduct during these meetings, as well as his discriminatory comments, to be unacceptable. It notified the WC that it no longer wished to or could hold discussions with the WC if he was present. At that point, the WC also notified the WC member that it no longer wanted him to attend meetings.

Sub-district court

After the WC member had expressed his views on the proposal to submit a request for exclusion to the sub-district court, the company and the WC submitted this request jointly. The sub-district court then excluded the WC member from all WC work for the remainder of his WC tenure. The WC member filed an appeal.

Arnhem-Leeuwarden Court of Appeal

The Court of Appeal quashed the ruling by the sub-district court and lifted the exclusion. In its findings, the Court of Appeal indicated that the sanction of exclusion could only be applied if it was inescapable, i.e. that it was a last resort. In addition, the Court of Appeal indicated that the principle of proportionality had to be observed when determining the duration and – for a request by the WC – the extent of the sanction.

The Court of Appeal appreciated that the WC member’s conduct was irritating and that he was disrupting WC consultation meetings, and also that the employer found his accusations against the executive board to be odious. Also, according to the Court of Appeal, his discriminatory comment was unfortunate, to put it mildly, even if there was no evil intent behind it. In relation to the WC request, the Court of Appeal also held that the WC member’s activities were an obstacle to the proper conduct of WC meetings and consultation meetings.

However, the requests submitted by the company and the WC foundered on the fact that the WC member was not warned that the collaboration would be terminated if there were any repetition. Without a clear final warning, there were not sufficient grounds to support an accusation of serious obstruction. The Court of Appeal felt that an unambiguous message that the limit had been reached would have been appropriate before embarking on the last resort of exclusion. The Court of Appeal added that the compulsory expression of views in terms of the DWCA, prior to the submission of the request for exclusion, could not be regarded as such a final warning.

Conclusion

This ruling shows that it is definitely possible to intervene if a WC member is frustrating consultations with or the work of the WC. The situation must involve not just a few incidents but a structural and serious obstruction. Here again, however, the adage of “forewarned is forearmed” would apply. So the WC member should be given a clear final warning that he or she would be excluded from the work on repetition of conduct.

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