Termination of Employment and Union Representation

  • 2009-09-10
  • By Annija Melko [Kronbergs & Cukste]
In Latvia, an employee has the right to select and join a union of his choice. A union may be structured along trade, industrial, territorial or other principles.
As a general rule, unions tend to try to induce employees to join their ranks by holding out the prospect for improvement to working conditions, strengthening of legal protections, strength in negotiations over wages and other benefits. In return, union members are required to pay union dues set by the union, but ordinarily in the amount of one per cent of the respective unionized employee's wages.

Much of current union activity is focused on representation of unionized employees in unfair dismissal matters. Part one of section 110 of the Labor Law provides that as a rule, an employer is barred from terminating an employment contract with an employee who is a union member without the union's prior consent. The union consent requirement does not apply to employees terminated during the course of their initial employment probation period, or where the termination is for impairment at the workplace, or where an employee's reinstatement displaces the employee being terminated, or where the employer is undergoing liquidation.

It follows that in the usual course of events of a unionized employee termination attempt by an employer, the employer makes a submission to the applicable union containing a request for consent to terminate the employee, setting out the factual basis and grounds for termination together with supporting evidence. The union, after having had an opportunity to evaluate whether or not sufficient grounds for termination exist, makes its decision whether to grant consent or not.

The Labor Law imposes a duty upon the employer to determine whether the employee slated for termination is a union member. Curiously, the Labor Law does not impose a duty upon a union to  disclose union membership to the employer. It is therefore possible that an employer might terminate an employee without the benefit of knowing in advance that the employee is a union member. Under such conditions, the termination is invalid.

A non-unionized employee who senses or is aware of an impending termination may make a last minute application for membership in a union. This is not a rarity, and perhaps should not be contentious as a practice. What may however be of concern to a number of employers is that it is common practice for some unions in Latvia to axiomatically deny consent to terminate, without any consideration of the merits of the employer's grounds for termination. Where the union denies consent, ordinarily the only way for the employer to terminate the employee is through a successful court claim, giving rise to added employer costs. On one view, a union's axiomatic adherence to a 'no consent' policy in termination applications having no regard for the merits of the termination, may be considered to be a violation of a duty of fair representation, ironically adversely affecting the remaining members of the union who may be financing through their union dues a spurious challenge to a legitimate termination of a last minute new union member.

Section 110 of the Labor Law provides that a union must respond to the employer application for consent to terminate within seven days of receiving the application for consent to terminate. Under the law as supported by Supreme Court jurisprudence, where a union fails to respond at all, the union is deemed to have opposed the termination.

Annija Melko is an associate at Kronbergs & Cukste. Kronbergs & Cukste is a founding member of Baltic Legal Solutions offering a pan-Baltic approach to legal services. In Lithuania Baltic Legal Solutions is represented by Jurevicius, Bartkus & Partnerid.  In Estonia, Baltic Legal Solutions is represented by Glikman & Partnerid.