Mediation is a hot topic in employment law. When an employee falls ill as a result of an industrial dispute, a company doctor often recommends mediation in order to normalise labour relations between employer and employee again. In recent years, parties have also increasingly litigated on issues related to mediation. Recently, a judge had to consider such a case. The central question in this case was: who gets to choose the mediator? Can employer independently decide which mediator leads the mediation process? Or does employee also have a choice in this?
More specifically, the case involved the following:
It involved an employee who had fallen ill at some point due to a labour dispute with her employer. The company doctor recommended that a formal external mediation process be initiated.
The employee sends an e-mail to her employer, writing that she looks forward positively to the mediation. The employee adds that she feels it is important to engage an independent mediator who is knowledgeable and has received proper certification/training, and that the mediator is chosen jointly. The employee suggests that she selects three mediators from which the employer will then choose one mediator.
Thereupon, the employer proposes that the mediation be led by an HR manager. The employee rejects this proposal as she does not consider the HR manager to be an independent mediator as he is simply part of the employer.
The employee then consults the company doctor again. The company doctor concludes that the employee's restrictions and complaints have demonstrably worsened, and reiterates that the external mediation advice is still valid. Thereupon, the employer informs the employee that mediation will not take place with the HR manager, but that an appointment with an independent mediator has been scheduled.
However, the employee does not agree to this proposal either. The employee indicates that she does not agree to engage a mediator chosen by the employer alone. The employee again suggests that she will choose three mediators, from which the employer can then choose one.
The employer rejects the employee's proposal, stating that the mediator has not been used by the employer before and reiterating that it is an independent mediator. The employer further adds that it determines which mediator is engaged, as it also pays the mediator. In other words, employer is of the opinion "he who pays, decides".
The employee, however, maintains that mediation should take place with a mediator chosen jointly by the parties. The employer then informed the employee that if she did not attend the appointment with the mediator, salary payments would be stopped.
Subsequently, the employee started legal proceedings to enforce continued salary payment. In the context of these proceedings, the court rules as follows.
The employer took the position that it was entitled to stop paying wages because the employee had refused to cooperate in mediation. The subdistrict court interpreted this position as a reliance on the statutory provision, which stipulates that the employee is not entitled to continued payment of wages during illness as long as he refuses, without good reason, to cooperate with the reasonable instructions given or measures taken by or on behalf of the employer aimed at enabling the employee to perform suitable work. More specifically, the employer argues that the employee was obliged to accept the mediator proposed by the employer, initially the HR manager and later the external mediator, and that she had no valid reason to reject these mediators.
The question the court must therefore answer is whether the employer's requirement that the employee cooperate in mediation through a mediator chosen by the employer should be considered a reasonable requirement to which the employee must cooperate.
As the company doctor advised "formal external mediation", the court held that, in any case, the employer could not suffice with an interview supervised by the HR manager. The employee was therefore entitled to reject this proposal, the subdistrict court ruled.
This also applied to the mediator appointed unilaterally by the employer. According to the subdistrict court, mediation only works when both parties have confidence in the mediator. According to the judge, a mediator chosen by one of the parties, which choice is not supported by the other party, cannot be regarded as a reasonable rule within the meaning of the law. The employee was therefore entitled to require the employer to jointly choose a mediator.
The subdistrict court took into consideration that the STECR Werkwijzer states that the advice of the company doctor in the event of a conflict may consist of:
1. a conversation between the employee and the person with whom he has a conflict;
2. a conversation in the presence of an internal third party (e.g. someone from HR or a confidential advisor); Or if that no longer offers a solution:
Starting mediation. Mediation is defined in the STECR Werkwijzer as: "an intervention through mediation talks in which parties resolve their conflict themselves under the guidance of a professional and independent mediator registered in the MFN register".
Given this STECR Werkwijzer, engaging an internal third party after the company doctor has recommended external mediation is a bypassed stage. And an external mediator proposed unilaterally cannot be considered an independent mediator without the cooperation of the other party, the subdistrict court ruled.
However, the Subdistrict Court also considered that it remains to be seen whether an employee's proposal, namely that she name three mediators from which the employer may choose one, can be considered the right approach. The subdistrict court considered that it might be better for both parties to approach one mediator each, and for these two mediators to jointly nominate a third mediator to conduct the final mediation.
In short, the subdistrict court ruled that the employee had rightly refused to cooperate in mediation. The reason why the sub-district court ruled that the employer had wrongfully discontinued continued payment of wages. The wage claim brought by the employee is therefore upheld.
Employees who object to the mediator chosen by the employer may benefit from this ruling. Employers will probably be somewhat less happy with the Court's ruling. But on the other hand, of course, one swallow does not make a summer. In practice, in our experience, most subdistrict court judges seem to be of the opinion that the employer may indeed unilaterally select a mediator, and that the employee cannot simply refuse to cooperate. Employees should therefore be well aware of this.
In any case, employers would be wise to appoint a mediator carefully. The best approach and the best way to proceed may differ from case to case. Always seek proper advice from an employment lawyer
Do you have any questions? Feel free to contact one of our employment lawyers. We will be happy to assist you!
Or perhaps you are looking for a mediator? If so, please contact our office, as Monique Spee is an MfN-registered mediator as well as an employment lawyer.