Local government violated the danish company transfer act by dismissing a school counsellor

Date 16 feb. 2009

On 21 October 2008, the Western High Court ruled in a case in which a local government had dismissed a school counsellor with reference to his position being discontinued as a consequence of a new school counsellor arrangement.

 

The case in brief

In connection with the introduction of a new school counsellor arrangement, a local government dismissed a school counsellor as of 31 June 2004 with reference to his position being discontinued.

 

Subsequently, a new position was advertised for the handling of the consultancy related to the new school counsellor arrangement and the school counsellor applied for the position, but was rejected. Subsequently, the school counsellor applied for a position as counsellor, but was rejected by letter of 1 April 2004.

 

The school counsellor requested a reason for the rejection. In a letter of 9 April 2004, the reasons for the rejection were stated as lack of visionary and reflective considerations compared to the intentions of the new arrangement.

 

It appeared from the case that all former 14 school counsellors in the local governments which were part of the new school counsellor arrangement had been employed, either as consultant or counsellor, with the exception of the counsellor in question and another counsellor who had retired. The school counsellor’s position was also among the positions which had been advertised. On 1 April 2004, the school counsellor was employed as counsellor in another local government.

 

Later, the school counsellor approached the parliamentary ombudsman regarding the development of the case.

 

The ombudsman stated that the local government’s transfer in connection with the school counsellor arrangement was covered by the Danish Company Transfer Act. Based upon this, the ombudsman requested that the government resumed the case of the dismissal.

 

Furthermore, the ombudsman stated that he did not find basis for criticising the rejections which the school counsellor had received from the institution to which the school counsellor jobs had been transferred.

 

Rules applying to dismissal in connection with transfer of companies

The Danish Company Transfer Act states that dismissal based on transfer of a company or a part of a company is not considered reasonably founded in the company’s situation unless the dismissal is a consequence of economic, technical or organisational changes which lead to changes in the employment situation.

 

The statement of the High Court

The Western High Court stated that a specific evaluation of whether it was contrary to the Danish Company Transfer Act to dismiss the school counsellor in question had to be made. The parties were not aware that the dismissal of the school counsellor was encompassed by the act. The High Court stated that since the dismissal of the school counsellor was not reasonably founded in the company’s situation and had not been treated according to the Danish Company Transfer Act, the possibility of exploiting the school counsellor’s competences in the new organisation had not been taken into account. Moreover, the High Court noted that the school counsellor was professionally competent to perform his job as a counsellor according to the new arrangement.

 

Based upon the above, the High Court concluded that the dismissal was not reasonably substantiated in the company’s situation. However, the High Court noted that the violation of the Danish Company Transfer Act did not imply an annulment of the dismissal but warranted compensation alone.

 

At the assessment of the size of the compensation, the court attached importance to the fact that the dismissal was subject to a significant legal insufficiency. Furthermore, it emphasised the term of the employment, the wage level and the fact that the school counsellor at his resignation had become employed elsewhere.

 

 

If you have questions or require additional information on the Danish Company Transfer Act, please contact attorney Dan Moalem ( dmo@mwblaw.dk ) or attorney Christina Lund ( clu@mwblaw.dk ).

 

The above does not constitute legal counselling, and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of a reader’s use of the above as a basis of decisions or considerations.