The 15th periodic report of Finland on revised European Social Charter; complaint 106/2014
Ministry for Foreign Affairs of Finland
The Ministry for Foreign Affairs of Finland has requested statement from Suomen Yrittäjät ry (The Federation of Finnish Enterprises) regarding the 15th periodic report on revised European Social Charter. Suomen Yrittäjät presents the following statement on the follow-up of decisions regarding the complaint no. 106/2014.
Suomen Yrittäjät considers Finnish legislation appropriate and to be in conformity with the Article 24 of the revised European Social Charter. Suomen Yrittäjät refers to the 13th periodic report of Finland where comprehensive arguments have been stated and notes that the Committee does not present proper reasoning for its decision. Suomen Yrittäjät also refers to its statement of 3rd November 2017, where arguments for conformity of Article 24 have been presented.
In addition, Suomen Yrittäjät would also like to stress that regarding reinstatement as an “other appropriate relief”, the literal reading of Article 24 leaves room for interpretation and therefore different solutions for national implementations must be possible. The Article 24 cannot be interpreted in a way that reinstatement is included as a specific and indispensable remedy according to the Article 24, as it is not explicitly mentioned in it. National systems must have options in implementation, as it is also stated in the appendix of the Charter.
Furthermore, is must be noted that neither the European Committee of Social Rights’ conclusions 2003 (Bulgaria) nor the Digest of the case law of the Committee contain sufficient reasoning why reinstatement is considered to be de facto prerequisite to conformity with Article 24.
Generally, an obligation for reinstatement is not appropriate relief in cases of dismissal as it means forcing contractual parties to continue their contractual relationship against mutual will. Also, from practical point of view, forced reinstatement would not be suitable solution for parties of employment relationship. Especially in small workplaces it is in practice impossible to continue working in situations where personal relations between employee and other employees and/or employer representatives are inflamed and dysfunctional, which is usually the case if the dismissal have been done and disputed later.
Janne Makkula Albert Mäkelä
Director, Labour Markets Legal Counsel