A company (the "Company") which conducted a cleaning operation had, since the cleaning assignments had decreased, been affected by shortage of work which resulted in four employees being made redundant. Four cleaners who were the last to have been employed and who had no driver's licences were therefore dismissed because of shortage of work. One of these employees (the "Employee") who did not have a driver's licence and who therefore had been dismissed, turned to her trade union (the "Union") which in turn brought a claim against the Company before the Labour Court for breach of the priority rules in Section 22 of the Employment Protection Act.
The Union argued that the Employee had sufficient qualifications in order to continue the employment and should therefore have been transferred to another position. The Union stated firstly that the Employee's work had not undergone a change and accordingly, no ground for the demand of a driver's licence existed for continued employment. In case the court ruled that the Company could demand a driver's licence in order for that employee to continue in employment, the Union stated secondly that the demand for a driver's licence was unjustifiable and unfounded. Furthermore, The Union was of the opinion that the Company had, in any event, an obligation to enable the Employee to remain employed by means of a reorganisation and to ensure that the Employee obtained the necessary training for the job.
The Company, on the other hand, considered that a driver's licence was a prerequisite for the positions to which the Employee could be transferred. Since the Employee did not have a driver's licence, she did not have sufficient qualifications to continue the employment and, pursuant to the Company, the Company was not obliged to ensure that the Employee was able to obtain a driver's licence or otherwise reorganise the work.
The Labour Court considered that it was indisputable that the Company's operation had been subject to certain alterations and that shortage of work still existed in respect of four employees. According to the Labour Court, it was also indisputable that the reorganisation implied that the Company was entitled to establish other qualification demands related to the employees than the ones applicable prior to the reorganisation, under the assumption that the demands did not appear as unfounded. According to the Labour Court, it was clear that a substantial share of the cleaners needed a driver's licence in order for the operation to function satisfactorily. The Company's demand that a certain number of the cleaners must have a driver's licence was therefore not unfounded. Accordingly, the Labour Court ruled that the Company had had factual reasons to establish a demand for driver's licence in their organisation as had occurred.
As to the Union's claim that the Company was obliged to reorganise the operation, the Labour Court held the following: as a general rule, an employer is not obliged to establish new positions in connection with transfers to other positions or, in any other manner, reorganise the operation in a way which results in restrictions of the employer's right of staff management. For that reason, the Company was not obliged to reorganise the work in order to ensure that the Employee remained employed. Nor was the Company obliged to ensure that the Employee obtained a driver's licence training. Accordingly, the Employee was deemed as not having sufficient qualifications to continue the employment. The Labour Court therefore dismissed the Union's claim. (Labour Court judgment 2010, number 34)
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