The Supreme Court has dismissed a case before the civil courts as the case could only be commenced before the civil court according to the Labour Court Act if the employee had proved that his union had chosen not to pursue the matter. As the union had commenced proceedings before the civil courts representing the employee, the Court found that the employee had not proved that the union had chosen not to conduct the case.

It is important that an employer can trust that a case has been concluded when having been heard by the industrial disputes system

The ruling is one among several rulings preventing employees from commencing proceedings before the civil courts when the matter has been commenced before and heard by the industrial disputes system, and where the subsequent wish to commence proceedings before the civil courts is not a result of the the union not having assisted the member.

The Labour Court Act prevents employees from forum shopping if they have a union to conduct the case. Claims supported by the employee's collective agreement are to be brought before the industrial disputes system. If the case is not continued within the industrial disputes system within the applicable time-limits, the employer must be able to trust that the case will not be revived.

Sometimes, it is not possible to continue a case because the union in question does not want to pursue the matter any further. In order for the employee not to be left with no legal rights, section 11 (2) of the Labour Court Act makes it possible for the employee to commence proceedings before the civil courts "if the employee can prove that the union does not intend to initiate an industrial hearing of the claim". This rule aims at ensuring the legal protection of the member if the union, which has the authority within the industrial disputes system, does not want to safeguard the member's rights.

In the Supreme Court ruling of 26 March 2007 (Flyvestation Værløse), HK chose to pursue the claim before the civil courts. The Supreme Court dismissed the action as the claim related to a collective agreement, which claims should have been pursued before the industrial disputes system. The Supreme Court also found that a dismissal resulting in the employee not having his claim heard is not a violation of article 6 (1) of the European Convention on Human Rights.

The union commenced proceedings, but not in time

In the recent Supreme Court ruling, a member of 3F was dismissed by his employer who was a member of the employers' association DI (previously HTS). The employee claimed that the dismissal was unfair and commenced legal proceedings through his union. The union participated in a mediation meeting, but subsequently, the union found that there were no grounds for an industrial hearing of the case. The employee complained to the union's internal mediator who stated that the union should have proceeded with the case before the industrial disputes system. As this did not take place, the only possibility was to commence proceedings before the civil courts as the industrial time-limits had been exceeded. On behalf of the member, 3F then commenced proceedings before the civil courts. DI claimed dismissal of the action.

Even though the union was in fact the reason for the case not being pursued before the industrial disputes system, the Supreme Court found - also in this case - that the employee was prevented from having the case heard before the ordinary courts. The Supreme Court seems to attach material importance to the fact that 3F would otherwise have had freedom of choice between the ordinary courts and the industrial disputes system, which cannot be the intention of the established system.

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Within a short period of time, the Supreme Court has delivered three rulings dismissing the claims of employees before the civil courts in cases where the claims were based on collective agreements, and where it had not been proved that the unions had not commenced industrial proceedings. With this ruling, the Supreme Court has set a very firm line as regards this question, which gives the unions every reason to provide clear advice on the legal position in case a member's claim cannot be pursue by the union before the industrial disputes system.

The content of this Newsletter is not, and should not replace, legal advice.

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Erik Wendelboe Christiansen

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Marianne Lage

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