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Sorry, you are not a salaried employee!

September 2011 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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A trade union official was not protected by the Danish Salaried Employees Act. So ruled the Danish High Court.
The status as a salaried employee under the Danish Salaried Employees Act provides an employee with a number of protections – also in case of unfair dismissal. Since the advent of the first Salaried Employees Act in 1938, the social partners have tried to respectively limit and extend the concept of salaried employee as much as possible, spawning a number of lawsuits in the process. This case from the Danish High Court is the latest of those.
For 25 years a woman had been involved in trade union work – as an employee and as an elected official. In early 2008, she decided to run for office again and won.
But because of an increasing workload she went on sick leave in April 2008. She was off sick until the spring of 2009, when she was removed from office by the general meeting.
The union official believed she was a salaried employee within the meaning of the Danish Salaried Employees Act, and claimed unfair dismissal. Since the trade union had not given her a statement of employment particulars, she also believed herself entitled to a handsome compensation under the Danish Statement of Employment Particulars Act. The trade union, on the other hand, argued that she was not protected by the Danish Salaried Employees Act or the Danish Statement of Employment Particulars Act, and the case ended up in court.
Elected official or employee?
The Court ruled in favour of the trade union. The union official had been elected by the members of the trade union and was therefore an elected official accountable to the general meeting – and not to an employer – and she was therefore not subject to an employer’s right to direct and control.
Since a status as a salaried employee requires that the employee is subject to an employer’s right to direct and control, the union official was not covered by the Danish Salaried Employees Act or the Danish Statement of Employment Particulars Act.
Nor was the Court satisfied that she was an employee within the meaning of the Danish Statement of Employment Particulars Act.
 
Norrbom Vinding notes:
  • that the judgment is an important contribution to the interpretation of the definition of a salaried employee under the Danish Salaried Employees Act and the definition of an employee under the Danish Statement of Employment Particulars Act.
The above does not constitute legal advice and should not be relied upon as such

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