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Contesting the candidates is only possible during the social elections procedure
The employer has the possibility to contest the candidate lists in the event that a candidate does not comply with the conditions for eligibility. The Supreme Court recently confirmed that this is only possible within the strict terms provided in the social elections procedure.
The official start of the social elections procedure is only a few days away. As an employer, you should strictly comply with the chronology of the elections calendar. In the coming weeks, we will regularly update you on the different steps. You also have the possibility to follow this up yourself by means of our online tool.
The candidate lists must be handed over or sent to the employer on day X + 35 (i.e. in function of day Y, which falls between 13 and 26 March 2012) at the latest.
The employer can contest these candidate lists before the labour tribunals, for example, because one or more candidates do not meet the eligibility conditions. Within that framework, the Law distinguishes between two possible terms to file an appeal. The applicable term depends on whether or not the unions or an employee filed an internal complaint by day X + 47 (i.e. between 25 March and 7 April 2012) at the latest. If no internal complaint was filed, the employer's terms for filing an appeal are shorter:
- on day X + 52 at the latest (i.e. between 30 March and 12 April 2012) if no complaint was filed;
- on day X + 61 at the latest (i.e. between 8 and 21 April 2012) in the event that a complaint was filed.
There was a discussion in case law with regard to the question whether the employer could still contest the validity of a candidacy after the procedure, for example because he only finds out later, in the framework of an irregular dismissal of a (candidate-) employee representative, that a candidate did not comply with the legal conditions. In a recently published ruling of 17 October 2011, the Supreme Court said that this was not possible; the conditions of eligibility can only be contested within the terms of day X + 52 resp. day X + 61.
For more information please visit www.claeysengels.be