Works Council Issued Warning for Violation of Works Constitution Act Obligations.

 Higher Labor Court Baden-Wuerttemberg Confirms possibility of warnings under Works Constitution Act (Ref.: 8 TaBV 3/19).

Works Council Issued Warning for Violation of Works Constitution Act Obligations.

An employer has the right to issue a warning to a works council member if they violate their duties. Such a warning under the Works Constitution Act can be a preliminary step before exclusion from the works council. However, the Higher Labor Court Baden-Württemberg laid down in its decision of July 3, 2020 (Ref.: 8 TaBV 3/19) that the warning letter must not appear in the personnel file.

If a member of the works council violates their duties, the employer has several options to react. In the event of serious breaches of duty, he or she can apply to the labor court to dissolve the committee. If individual works council members seriously violate their duties, they can be excluded from the works council by the labor court. However, a high bar is set for this. If the facts are not (yet) sufficient for a dissolution or exclusion, the employer can also issue a warning under the Works Constitution Act.

Warnings issued to Works Council under the Works Constitution Act

In the case before the Higher Labor Court Baden-Wuerttemberg, the employer had chosen to issue a warning. The reason for this was a works agreement regarding target agreements and bonuses for the company’s field staff. Some of the targets seemed unrealistic and unachievable to the works council. It questioned the permissibility of certain targets. It also called on the affected employees to contest their personal half-year targets.

This went too far for the employer. The employer issued warnings to the works council members under the Works Constitution Act. The employer justified the warnings by stating that in its action, the works council had violated the requirement of cooperation based on mutual trust and had thus violated the obligation to maintain peace.

The affected works council members now demanded that the warning notices be removed from their personnel files. They argued that the personnel file should only contain documents that relate to the employment relationship.

Inadmissible Mixing

As in the lower court, the works council was also successful in the appeal proceedings before the Higher Labor Court Baden-Wuerttemberg. The employer was perfectly entitled to reprimand conduct prohibited by the Works Constitution Act and to announce that this would no longer be tolerated. However, a possible violation of a works council member’s official duties had, as a rule, nothing to do with his or her employment relationship. Therefore, a warning under the Works Constitution Act – even if it is justified – has no place in the personnel file, according to the Higher Labor Court. This lead to an inadmissible mixing of the duties as works council and as employee.

In addition, the warning could have a negative effect on the career of the person concerned. The court further explained that this would be a violation of the discrimination ban.

The decision provides a little more legal clarity for employers. This means that there is not just an “all or nothing” approach (dissolution/exclusion or no sanction) but also a warning as a preliminary step. The employer should also take advantage of this, in order to be able to prove that the works council or its members were not willing to act in accordance with their duties, in any subsequent dissolution/exclusion proceedings which may become necessary.