HEADLINES LABOUR & EMPLOYMENT
WHICH PROTECTION AGAINST DISMISSAL APPLIES TO AN EMPLOYEE WHO IS THE ONLY CANDIDATE IN THE SOCIAL ELECTIONS?
In our Headlines of 24 May 2011 we already informed you about the preparations of the social elections of 2012. The social elections and especially the combination with the special protection against dismissal for the elected and non-elected employee representatives continue to cause disputes. This is shown by a recent ruling of the Supreme Court of 4 April 2011.
This case concerned an employee who was the only candidate for the committee for prevention and protection at work in the social elections of 2000 and 2004. The electoral process was terminated prematurely twice, as the establishment of a committee requires at least two effective employee representatives and there were no other candidates except the employee concerned. More than two years after the social elections of 2004, the employee was dismissed without observance of the special dismissal rules for protected employees.
The dismissed only candidate claimed a protection indemnity. He was of the opinion that he had the capacity of an elected employee representative, given that article 76 of the Royal Decree of 15 May 2003 stated that candidates are elected by law if only one trade union nominates a number of candidates which is equal to or lower than the number of mandates to be granted. Therefore, he believed that he was entitled to a protection against dismissal during 4 years as of the last elections of 2004. This period of 4 years suited the employee better than the shorter protection period of 2 years which applies to employees that have been an unelected candidate twice. This period had already expired at the time of his dismissal.
The Belgian Supreme Court decided that the one candidate that cannot take up his mandate in the absence of an established committee cannot be considered to have been effectively elected and therefore does not benefit from any protection against dismissal as elected employee representative. The only candidate is protected as a non-elected candidate (during 4 years after the first non-election and during 2 years after the second fruitless candidacy). In the case at hand, the employee was not entitled to a protection indemnity, as he had been dismissed after the protection period of 2 years.
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