What chance does an employer have of dismissing a trade union official if the union disagrees? This article looks for guidance in the Czech courts' decisions and ILO recommendations.
If an employer decides to unilaterally terminate the employment of a trade union official, it must be aware that it is likely to be facing a thorny path. Does the employer have any chance of succeeding in such a dispute? Decisions of Czech Courts and ILO recommendations show us that it does, however, its burden of proof may be harder to meet than in other cases of unlawful dismissal disputes.
According to s61(2) of the Czech Labour Code, a member of a trade union body (usually the chairman, his or her deputy or another trade union committee member) can only be dismissed after the employer has asked the trade union for its approval and received its consent. This even applies for a whole year following the end of the term of union office.
If, within 15 days after a request for consent is issued, the trade union fails to notify the employer in writing that it refuses to give its consent, it is deemed to have given consent. However, if the trade union gives its express refusal to the termination in writing to the employer within these 15 days, the termination of employment is considered invalid pursuant to s61(4) of the Czech Labour Code. Legal protection enjoyed by trade union officials is thus far higher than that of other employees (including ordinary trade union members) whose unilateral termination only needs to be discussed with the trade union in advance, not consented to.
Employers do not need to despair, though. Pursuant to s61(4) of the Czech Labour Code, a court can decide that a dismissal of a trade union official is valid even if the trade union has refused to give its consent (the termination will also be considered valid, if no one disputes the validity within two months after termination of employment). The court can only do so, however, if all legal conditions for dismissal are met (as with any other termination of employment) AND if it is not considered justifiable that the employer has to employ such employee. This means in the event of a legal dispute, the employer needs to prove not only the reason for dismissal, but also the facts that led the employer to decide that it could no longer be justifiably required to employ this problematic (or redundant) trade union official.
Czech case law
Since the Czech Labour Code does not further specify how to ascertain whether the employer cannot be justifiably required to continue to employ a trade union official, it is left to the courts to determine this in each individual case.
What to take into account in deciding whether to dismiss a trade union official
In 2008, the Supreme Court of the Czech Republic ruled that, in case of a reorganisation, the employer must take into account both the impact this termination will have on its operations as well as possible consequences for the terminated employee (e.g. his or her personal and economic situation).
In the very same year, the Supreme Court elaborated this in another case when it held that in dismissing trade union officials, their age and work experience, work results and attitude to the performance of work tasks, ability to work in a team and relationship with other employees as well as length of their employment should all be taken into account. It is important to note that this list is not definitive. We recommend that the employer further evaluates, for example, whether the employee would have a chance of finding an appropriate job in future and in the event of a breach of duties, the probability that the employee will improve his or her behaviour in the future or any damage suffered by the employer as a result of his violation.
It should also be noted that the agreement of a trade union other than the dismissed employee’s trade union cannot replace the consent of his or her own organisation, however, it could serve as another factor affecting the evaluation and thus the validity of the final decision of the employer and the court.
The sad truth is that some information is not available to employers at the time of termination of employment, nor will they be able to require employees to provide it given the restrictions related to the GDPR.
Trade union official takes preference in the event of redundancies
In 2013, the Supreme Court further ruled that the increased protection for trade union officials modifies the possibility of independent selection of employees for termination due to redundancy. If a number of employees perform the same type of work, a trade union official employee can only be selected for redundancy if the employer has sufficiently serious reasons for choosing this employee instead of others that outweigh the negative effects of termination on the employee (i.e. his or her attitude to the performance of work is bad and so is his or her relationship with other employees while the chances of this employee being employed elsewhere are high due to his or her age and work experience). In 2017, the Supreme Court further held that the need to consider all of the above stated factors applies even where there is only one employee (the trade union official) who would be affected by reorganisation.
Dismissal for minor breaches may be possible
As for reasons for which the employment of a trade union official can be terminated, the existing legal interpretation confirmed by a Regional Court in 1996 is that a trade union official could be given termination of employment for any legal reason, be it redundancy, violation of obligations, or unsatisfactory working results. This means that termination of a trade union official is possible even in the case of systematic minor infringements and the employer does not have to wait for a particularly serious breach. However, the employer is advised to wait for more than three minor infringements (which is the legal minimum for termination of employment).
The ILO Committee on Freedom of Association’s position
The provisions of s 61(4), which serve to protect trade union officials, were incorporated into the Labour Code in an effort to fulfil the Czech Republic’s obligations arising from ILO Conventions.
Article 5 of ILO Convention 158/1982 prohibits termination of employment by an employer on the grounds of membership of a trade union or participation in its activities outside working hours or with the consent of the employer during working hours. Pursuant to Article 8, an employee can apply to a court or arbitrator to assess whether his or her termination was justified.
The Czech Republic is also directly bound by the earlier ILO Convention 98/1949, under which employees should also be protected against termination because of their trade union membership. In this case, there is no longer any question of ‘justification’. However, national legislation in many countries reflects this and provides for dismissal of trade union official, despite the opposition of the trade union, if there is a legitimate reason to do so.
The Committee on Freedom of Association of the ILO deals with complaints (issued by the state, a trade union organisation or association of employers or trade union organisations) related to violation of principles governing collective bargaining.
In its 2011 recommendation, the Committee summarised the reasons for increased protection of trade union leaders, specifically the necessity of them being able to fulfill their functions independently and without fear of reprisals by employers.
According to the repeated recommendations of this Committee, however, the protection provided by these ILO conventions cannot be interpreted as immunity for a trade union official against any dismissal. It confirmed that an employer cannot be fairly required to continue to employ employees in the event of serious violations of their employment law obligations, in particular theft (however minor), threats and the repeated conduct of trade union activities during working hours without cause to avoid work performance as well as repeated abuse of employer´s property.
Instead of impunity, the Committee suggests several ways to increase the protection of trade union officials beyond existing regulations, including increased compensation in the event of union officials winning a legal dispute over dismissal, and speeding up the process of legal proceedings.
As is clear from the case law of the Czech courts and the Committee on Freedom of Association of the ILO, there are exceptions to the enhanced protection for trade union officials.
Under s61(4) of the Labour Code, it is always necessary to weigh the consequences of dismissal for the plaintiff against the consequences of continued employment for the employer and its other employees.
Although termination of employment is unpleasant for anyone, if other factors prevail, the increased protection of a member of a trade union body will not apply. In particular, it cannot apply in cases of serious violations of an employee´s obligations arising from his or her employment contract. However, the employer must always take into account:
- the employee’s character;
- his or her work results to date;
- his or her attitude to performing tasks,
- other employees;
- the length of employment;
- the damage caused to the employer;
- the employee's opportunities for finding other employment;
- the opinion of any other trade union operating at the employer.
As described above, employers do not have to worry about dismissing a trade union official if they can justify their decision. In the event of legal action, they must be able to prove, beyond the reason for giving notice, the role that all of the factors described above have played in this decision; that is, why the employer could not be fairly required to employ the trade union official any longer.
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.