What is the role of the confidential counselor in a labor dispute?
The role of the confidential counselor in an employment conflict is traditionally limited. Traditionally, employment conflicts fall outside the remit of a confidential counselor. However, in practice we see that the confidential counselor is increasingly called in for an (imminent) employment conflict, which often even prevents a legal conflict.
Early involvement of a legal advisor can lead to legalisation and hardening, which can unnecessarily escalate the conflict.
If there is undesirable behaviour resulting from the employment conflict, such as intimidation or attempted bullying, then the confidential counselor obviously has an important role to play.
The traditional role of the confidential counselor in labor disputes
The traditional role of the confidential counselor in a labor dispute focuses on assisting employees in situations of unacceptable behaviour, as Intimidation, with bullying, aggression and violence, discrimination en sexual harassment and with integrity issues.
In cases of purely labor law conflicts, such as disagreements about contracts, employment conditions, performance or dismissal, the role of the confidential counselor is limited. These matters are usually the responsibility of Human Resources (HR), managers, or in some cases, legal advisors.
Modern role of the confidential counselor in an impending labor conflict
In practice, we see a shift in the role of the confidential counselor in the event of an impending labor conflict. This shift means that the confidential counselor increasingly acts as a sounding board in labor disputes. This change is prompted by the fact that employees often cannot find clear refuge within the organisational structure in the event of a (threatening) labor conflict.
If an organisation already has an HR manager, employees still experience this as an extension of management, which makes employees feel unheard and is therefore more likely to seek assistance from an external legal advisor. However, quickly involving a legal advisor again leads to legalization, resulting in an unnecessary escalation of the conflict.
If an (external) confidential counselor is available for labor conflicts and has relevant knowledge, this can prevent legal conflicts from arising. It is important that employees feel supported and understood by someone who represents their interests and who searches together for the best approach. An effective conversation, possibly with the help of an impartial third party, can solve many problems and avoid legal disputes. A confidential counselor can offer much more accessible and informal guidance that can benefit the conflict. Another possible solution can be mediation.
Preconditions for the role of a confidential counselor in an employment dispute
The confidential counselor can play an important role in facilitating less formal, but effective solutions. Such as providing background advice when having a difficult conversation between employee and manager or between employee, HR manager and manager. This not only saves a lot of suffering and costs, but also contributes to a healthier and more safe working environment. This more extensive role requires that the confidential counselor has some knowledge of labor disputes and other occupational health and safety matters, such as absenteeism due to illness.
The organisation determines the tasks of the confidential counselor
It is up to each organisation to determine what role and tasks the confidential counselor has when it comes to a (threatening) labor conflict. It is important that there is clarity within the organisation. It is advisable to record this in the policy. It is important that the confidential counselor has sufficient basic knowledge.
It is important to know where the boundaries of the role of a confidential counselor are (also for the organisation and the employee) so that expectations are clear. The confidential counselor can always refer you to the official or agency that has the authority. So it is important to be clear about that too.
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