Union representative dismissed: receives compensation of DKK 1.4 million
A senior union representative and IT consultant of 15 years was summarily dismissed and terminated over allegations of offensive language. It has now been settled by labour arbitration that the bank was neither permitted to terminate the employee’s contract or summarily dismiss him for this reason.
Instant dismissal
The case arose from a complaint filed by a former colleague who, upon leaving the bank, informed the bank that the senior union representative had, on two occasions, used language that the colleague perceived as offensive in relation to his origin and ethnic background.
Shortly after, the senior union representative was called in to a meeting with the bank, at which he explained his version of events.
He acknowledged that he had used the words in question, but explained that the remarks were made in an informal and friendly context, where the colleague himself had previously used the same language.
According to him, their tone had always been casual, and in his 15 years at the bank he had never before been criticised for his way of speaking.
A few days later, the bank decided to instantly dismiss him.
The bank justified the dismissal on the grounds that the employee’s utterances constituted a breach of the bank’s policies and guidelines on offensive behaviour.
According to the bank, this constituted a significant breach of the employment contract, which had led to a complete breach of trust.
At the same time, the fact that he was a senior union representative was stated as an aggravating factor. In light of this, the bank determined that the circumstances, taken as a whole, warranted instant dismissal.
Lack of context
According to the case, however, the decision to dismiss the employee was made without the bank having investigated and documented the specific context in which the words had been used.
Precisely this lack of disclosure about the sequence of events became a key element of the arbitration proceedings.
According to Mette Hjøllund Schousboe, one should refrain from using language that could be perceived as offensive. However, the context and situation in which the words are used must be taken into account when assessing potential disciplinary action.
“The arbitration ruling makes it clear that an employer cannot dismiss an employee simply because there is a presumption that the employee has done something that may constitute grounds for summary dismissal,” says Mette Hjøllund Schousboe, adding:
“In this case, the union representative had merely repeated language used by the individual himself, and it was clear from the context that it was not intended to be offensive. That helped underscore that the bank could neither terminate nor summarily dismiss the employee on those grounds.”
Arbitration ruling – and an end to the matter
According to the arbitration ruling, the umpire stated that the bank should, for example, have presented the senior union representative’s statement to the colleague to gain a clearer understanding of the sequence of events.
As this was not done, the bank found itself in a difficult position in evidential terms.
The former colleague who had reported the offensive language did not wish to make a statement at the arbitration proceedings. Instead, the arbitration tribunal relied on the union representative’s statement, which it deemed credible, and the fact that, in his more than 15 years of service, he had never been criticised for his work or conduct.
In light of this, the umpire found that the bank did not have sufficient grounds for either summary dismissal or termination. It was further emphasised that it could not be assumed that the union representative had intended to offend his colleague, and that, in the circumstances, he had reason to believe that his colleague would not feel offended.
The arbitration tribunal underlined that the bank could well have addressed the issue – for example, by making it clear that such language would not be acceptable going forward. That would have been a proportionate response, whereas summary dismissal was too extreme a measure, it was argued.
Compensation of DKK 1.4 million
The arbitration tribunal awarded the former senior union representative and IT consultant total compensation of DKK 1,422,407.26.
The amount covers compensation for the unjustified summary dismissal and termination as well as lost pay and other claims under the collective agreement.
Failure to investigate
The former senior union representative emphasises that, in his view, the remarks were made in a context entirely different from the one the bank later relied upon.
According to him, the two colleagues had an informal and confidential relationship and were on friendly terms at the time.
“They were made in a situation where the colleague had used the same words about himself. I took it as an internal, friendly tone, and I had never been told that it was a problem,” he says.
He points out that, in his view, the bank never thoroughly investigated the specific context – neither the relationship between the colleagues nor the situation in which the language was used – before deciding to dismiss him.
For the former senior union representative, the arbitration award brings closure to a series of events that have dominated his life since his summary dismissal.
“It's been an extremely difficult time. That’s why it means so much that a line has now been drawn under it, and it has been established that the dismissal was unjustified,” he says, adding:
"I wish the bank had talked to me and investigated the matter properly. I would gladly have accepted a reprimand or a warning and learnt from it. Instead, I had to face the harshest possible action,” he says.
Today, he has moved on to a new job, but the experience still haunts him. However, the arbitration ruling provided the redress he had hoped for.
“To me, it’s more than anything about justice. I'm deeply grateful for the indispensable support and dedication shown by Finansforbundet throughout the process."