In dealings with an employer, members of trade union governing bodies and individuals authorised to represent a trade union enjoy special protection against the termination of their employment. The individuals covered must be expressly identified in a resolution of the trade union’s governing body, subject to statutory limits based either on the number of union members or on the number of managerial employees employed by the employer.<\/p>\n
This protection means that an employer may neither serve notice to terminate the employment contracts of such individuals nor terminate those contracts. The employer is also prohibited from unilaterally changing their terms and conditions of employment to their disadvantage.<\/p>\n
An employer may terminate the employment contract of a protected employee only after obtaining the consent of the governing body of the trade union to which the employee belongs. The employer should submit a written request for consent, stating the reasons justifying the proposed action.<\/p>\n
The trade union should respond within 14 working days where termination by notice is proposed, or within seven working days where termination is without notice.<\/p>\n
If the trade union fails to communicate its position within the applicable time limit, its silence is deemed to constitute consent to the termination or amendment of the employment contract. In such circumstances, the employer may proceed without receiving an express response from the union.<\/p>\n
In practice, trade unions generally respond within the prescribed time limits, but tend to refuse to consent to the dismissal of their members. A literal reading of the relevant provisions would suggest that, where the union withholds its consent to the dismissal of a protected member, the employer is prevented from terminating the employment contract.<\/p>\n
However, case law recognises that an employment contract may, in certain circumstances, be terminated even where the employee is a protected trade union representative and the union has withheld its consent. Courts have repeatedly emphasised that trade union protection is not a licence to act with impunity.<\/p>\n
Where the circumstances show that the allegations against an employee are unrelated to their trade union activities and that the employee’s conduct is particularly reprehensible, the union should consent to the termination of the employment contract.<\/p>\n
If an employee relies on the absence of trade union consent in court proceedings, the court may consider this an abuse of rights and refuse to reinstate the employee or award compensation. Courts have found an abuse of rights not only where a union refused to consent to the dismissal of a representative who reported to work intoxicated or bullied other employees, but also where the employee has been declared medically unfit to work in the position concerned.<\/p>\n