An effective works council resolution requires the works council to be properly constituted. In practice, the question sometimes arises as to whether an employee still belongs to the works council or whether his membership has ended due to an effective resignation. This may raise the question of whether the works council member can contest a resignation once it has been declared, for example because he has been led to believe that resigning from the works council would have positive consequences for him.
According to Section 24 No. 3 BetrVG, the works council office can be resigned from by means of a unilateral declaration to the works council chairperson. Whether the resignation is contestable has not yet been decided by the highest court.
The challenge is generally considered inadmissible, as the contestability of the resignation would lead to considerable legal uncertainty. A challenge generally has retroactive effect and would therefore result in the invalidity of resolutions passed between the resignation and its challenge without the participation of the works council member. Legal certainty regarding the composition of the works council is therefore of great importance.
Many years ago, the Hesse Regional Labor Court (decision of October 8, 1992 – 12 TaBV 21/92) ruled that resignation from office due to fraudulent misrepresentation or threats may be contestable. On the one hand, it is conceivable that the deception or threat constitutes a serious infringement of the general personal rights of the works council member and that the protection of the misguided works council member outweighs the interest in legal certainty with regard to the composition of the works council. However, in its ruling, the LAG Hessen assumed that resignation from the works council is contestable as long as the works council has not yet passed any resolutions. This ensures the necessary legal certainty.
Without the possibility of contesting the resignation, a works council member has virtually no way of defending themselves against deception in connection with their resignation. An exception for contesting the resignation in cases of fraudulent misrepresentation, with the restriction that no works council resolutions have been passed, represents a compromise between the protection of rights acquired and the protection of the erring member. Although there must be clarity regarding the composition of the works council, this must not lead to a member who has been forced to resign through threats or deception being bound by their declaration. In our opinion, there is therefore much to be said for the view taken by the Hesse Regional Labor Court in 1992. However, it remains to be seen whether the Federal Labor Court and/or other regional labor courts will follow suit.
Co-Author: Amelie Adler (stud. iur)