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- 24 Mar 2009
Before dismissing a health and safety representative, employers must find out if redeployment is possible.
Employers must consider the option of redeployment (and retraining, if necessary) before dismissing a health and safety representative. This requirement was recently reaffirmed by the Danish Western High Court.
An employee worked as a system developer and had been elected health and safety representative by his colleagues. As the employer was not sure that the system developer’s main project would be realised, he was given notice of termination. He was promised, however, that the notice would be withdrawn if the project did go ahead.
The system developer met with management to discuss the situation. At the meeting, he gained the impression that a number of other employees would be given notice as well. He told some of his colleagues – and was then summarily dismissed when the employer found out and considered his behaviour to constitute gross misconduct. The system developer then brought a claim for unfair dismissal and summary dismissal.
Like the lower court, the High Court found for the system developer. The employer failed to convince the Court there was a shortage of work. It was still uncertain if the project would proceed, but new people had been recruited in the system developer’s notice period for functions that the system developer could have carried out. Accordingly, the compelling reasons required under Danish law in order to dismiss employee representatives did not exist. In addition, the system developer had not been told to keep the discussions at the meeting secret and there was therefore no misconduct on the part of the system developer, whether as an employee or a health and safety representative. Accordingly, the dismissal and summary dismissal were unfair.
Norrbom Vinding notes
that the case illustrates that before dismissing employee representatives due to a shortage of work, employers must explore the possibilities of redeployment; and
that it is for the employer to prove that redeployment is not possible.