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.