A labor dispute mediation process can prevent a lot of misery. Conflicts in the workplace occur more often than people think – between colleagues, supervisors or due to prolonged stress. The question is: do you choose to repair the relationship through mediation or does the conflict end up in court? The labor lawyers of Arslan Advocaten explain how to resolve a labor dispute, what your rights are and what happens if mediation fails.

What is a labor dispute?

A labor dispute arises when the collaboration between employee and employer is seriously disrupted. This can be caused by disagreements about performance, workload, illness or reorganization. Sometimes a situation arises where one of the parties can no longer work with the other.

A labor dispute does not immediately lead to dismissal, but can result in prolonged tensions or reporting sick. That’s why it’s important to take action in time.

The role of mediation in labor disputes

Mediation is a form of mediation in which an independent mediator helps both parties reach a solution. The goal is not to determine who is right, but to restore communication and make agreements with which both parties can move forward.

Advantages of mediation

• Prevents escalation and legal proceedings;
• Provides room for restoring trust;
• Can lead to agreements on resumption of work or termination;
• Saves time, money, and stress.

In mediation, both parties sign a mediation agreement with agreements about confidentiality and voluntariness. Everything that is discussed during the conversations remains confidential and cannot be used in a lawsuit.

When is mediation mandatory?

The law does not oblige mediation, but judges and the UWV do expect parties to first try to resolve a conflict before they start a procedure. Especially in the case of a labor dispute during illness there is an obligation to participate in rehabilitation. Mediation can be part of this.

What if mediation fails?

If mediation does not yield results, there are two possibilities: termination of the employment contract by mutual agreement or via the court. In case of termination in consultation, a settlement agreement is often drawn up with agreements about the transit fee, notice period, and reference.

If it is not possible to come to an agreement together, the employer can request the termination of the employment contract from the court due to a disrupted employment relationship.

Termination due to disrupted employment relationship

The judge can terminate an employment contract on the basis of article 7:669 paragraph 3 sub g BW: a serious and permanent disruption of the employment relationship. The judge examines whether sufficient attempts have first been made to restore the relationship, for example through mediation. If those attempts have been insufficient, the termination can be refused.

Example from case law

An employee became ill after a conflict with his supervisor. The employer requested termination due to a disrupted employment relationship. The court refused the request because the employer had not offered mediation. Only after mediation had failed could dismissal be considered.

Rights and obligations of parties

For employees

• You must cooperate in reasonable attempts at recovery, such as mediation;
• You cannot simply refuse to participate without good reason;
• In case of non-activation, you retain right to pay.

For employers

• You must seriously offer mediation in case of a labor dispute;
• You can only file a dissolution request if recovery is not possible;
• You must take into account reasonableness and fairness in termination.

Labor dispute and illness: double complexity

A labor dispute often goes hand in hand with illness or burn-out complaints. In that situation, the normal rules about dismissal during illness and the employer’s duty of care apply. The occupational health and safety service can advise mediation as part of the recovery process.

What happens in court?

If mediation fails, the district court judges whether the employment contract should be dissolved. The judge looks at:

• The seriousness and duration of the conflict;
• The attempts to come to recovery;
• The attitude of both parties during mediation;
• The possibility of reassignment to another position.

In case of dissolution, the employee usually gets a transition fee. Only in case of serious culpable behavior of the employee, this right expires. If the employer is seriously at fault, the employee can receive a fair compensation.

Frequently asked questions about labor disputes and mediation

Am I obliged to participate in mediation?

No, but refusing without good reason can have negative consequences, for example, in a procedure about dismissal or continued wage payment.

What does mediation cost?

The costs are usually shared between employer and employee. In case of internal mediation, the company itself can bear the costs.

Can I be fired during mediation?

Not in principle. Mediation is intended to lead to a solution. Only in case of serious misbehavior can an employer consider dismissal on the spot in the meantime.

What if mediation fails?

Then you can start a procedure through the district court or the UWV. Let a labor law lawyer advise you on this.

Arslan Advocaten helps with labor disputes and mediation

The labor law specialists of Arslan Advocaten guide both employers and employees in labor disputes, mediation processes, and procedures in the court. We help prevent escalation and provide support in termination agreements or restoration of work relationships. Contact us for immediate legal advice.