Works council members: Training courses and special protection against dismissal
Works council members have a special (legal) status at companies. One which also involves special rights and obligations.
Section 37(6) Works Council Act (BetrVG) states that works council members are entitled to training courses if it is specifically required. In addition, the Federal Labor Court (BAG) has ruled that they also have an obligation to attend specific training courses. Refusing to undergo the necessary training may constitute a gross violation of their official obligations.
Nevertheless, dismissing a works council member due to a gross breach of duty is not that simple even in this context. Extraordinary dismissal for due cause is the only option and is only possible with the approval of the works council pursuant to Section 15 of the Protection against Dismissal Act (KSchG).
However, if the works council unlawfully refuses to grant its consent, the employer can have the consent replaced by a court decision and then effectively terminate the employment contract immediately. This is referred to as consent replacement proceedings).
Registered but skipped the course
The question is what action can employers take if they book a course for a works council member but the works council member only attends part of the course, uses the time for personal purposes while recording it in full as working time?
The Lower Saxony Higher Labor Court ruled on one such case involving the chairman of a works council (decision dated February 28, 2024, Ref.: 13 TaBV 40/23): He was registered for a training course lasting several days and attended the first day. However, he then spent the majority of the time documented as working time in the café and used the time to meet with his ex-wife, for example.
The man admitted this openly but argued that he used the time in the café to take care of works council duties remotely. As a member of the works council released from his other duties, he is permitted to do so.
His employer did not believe this, suspected working time fraud and intended to dismiss the man without notice. However, the works council did not agree to the dismissal of its own chairman, as was necessary. As a consequence, the company initiated consent replacement proceedings at the responsible labor court in Lüneburg.
Assessment of the Higher Labor Court
The employer won the case: First, the Lüneburg Labor Court and then the Lower Saxony Higher Labor Court replaced the required works council approval.
The man’s conduct constituted a serious breach of his contractual obligations and the suspicion of working time fraud was not unfounded.
The work council member’s explanation that he had performed works council duties remotely while at the café was implausible. The court based its ruling on the fact that the man had expressed a different opinion to other works council members who had also taken part in the training beforehand.
Dismissing works council members: difficult but not impossible
This case shows that it is not impossible to dismiss a works council member, especially in cases of working time fraud. Even works council members who are released from their duties are required to document their working hours correctly. Documenting time used for personal purposes constitutes working time fraud. As a serious breach of duty, this is sufficient grounds for extraordinary dismissal.
What can we do for you?
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Summary of the key facts:
- Works council members can only be dismissed for due cause and if the works council agrees.
- If the works council unlawfully refuses consent, employers can have the consent replaced by the labor court via consent replacement proceedings.
- Working time fraud is adequate grounds for the extraordinary dismissal of a works council member.
