Ole Kristian Olsby March 30 2022 Court of Appeal provides guidance for dismissing employees by email Littler Norway | Employment & Immigration - Norway Ole Kristian Olsby Employment & Immigration FactsDecisionCommentIn principle, employers must send dismissal notices to employees in person or by registered letter. However, a recent ruling from the Borgarting Court of Appeal has allowed dismissal by email upon delivery in the employee's mailbox to also be accepted in some cases.FactsThe Borgarting Court of Appeal's judgment(1) applied to a caretaker in a condominium, who was dismissed at the end of the probationary period. The notice was placed in the caretaker's mailbox one day before the end of his probationary period and sent by email on the same day. One of the questions that was submitted to the Court was whether this was enough for the dismissal to have been given before the end of the probationary period.The board of the condominium, which was the caretaker's employer, had rang the doorbell on the caretaker's door in the morning to deliver the notice. The caretaker was home at this time, but neither he nor his spouse claimed to have heard the doorbell ring.Later that afternoon, the employer tried to ring the doorbell again; however, the caretaker was out of town. The notice was then placed in the caretaker's mailbox and sent to him by email. At the same time, the chairman of the condominium sent a text message to the caretaker, notifying him of the dismissal.According to section 15(4) of the Working Environment Act, employers must deliver dismissal notices in person or send them by registered letter to the employee's address. The dismissal is considered to have taken place when it has "reached the employee".The Court judged that the dismissal was neither delivered in person to the caretaker nor sent by registered mail. Therefore, could it still have been considered to have taken place before the probationary period had expired?DecisionThe Court first dealt with the email dismissal. Electronic communication is often equated with paper-based communication, but the provision in section 15(4) of the Working Environment Act does not, in principle, allow for dismissals by email.However, the Court emphasised that the law does not prevent dismissals from being sent by email if the employer receives confirmation from the employee that they have received the dismissal. In that case, the dismissal can be said to have "reached the employee". However, the caretaker had not had access to his email while he was out of town. The Court, therefore, ruled that the dismissal had not reached the employee.As regards the dismissal placed in the caretaker's mailbox, the Court drew a parallel to the usual rules of contract law. According to these rules, written acceptance is considered to have "reached the recipient" when it has been placed in the recipient's office or home, even if it has not actually been read.In the same way, the Court held that the dismissal as a starting point must be considered to have reached the recipient when it had been placed in the caretaker's mailbox. The fact that the caretaker was not at home when the dismissal was placed in the mailbox was not decisive.On this basis, the Court concluded that the dismissal had reached the employee before the end of the probationary period.CommentAlthough the Court accepted the dismissal in the caretaker's mailbox, there may be individual circumstances that lead to different outcomes. It is, therefore, safest to follow the law's main rule on personal delivery or registered mail.If a dismissal is given in ways that do not follow the rule of law, employers should ensure that they have documentation that proves that the dismissal has actually reached the employee. When it is sent by email, for example, a delivery or reading confirmation can be requested. When delivered in a mailbox, a picture can be taken of the dismissal having been delivered.Finally, the question of when a dismissal has reached an employee is most pertinent when there are possible legal implications; for example, at the end of the probationary period and the respective calendar date. Some problems can, therefore, be avoided by ensuring that notice of dismissal is given well in advance.For further information on this topic please contact Ole Kristian Olsby or Lise Gran at Homble Olsby | Littler by telephone (+47 23 89 75 70) or email ([email protected] or [email protected]). The Homble Olsby | Littler website can be accessed at www.homble-olsby.no.Endnotes(1) LB-2021-118220.