Introduction
What does the law say?
Court's assessment: situation at time of termination
Comment
When an employee is dismissed, it is not unusual for the employee to dispute the dismissal and the case ends up in the courts. The court must then decide whether the employer had sufficient grounds for dismissal, or whether the dismissal was illegal. If the dismissal was illegal, the employee can, as a general rule, both demand to get their job back and demand compensation.
A reasonable basis for dismissal will naturally vary from case to case. In the last year, however, the Supreme Court issued two judgments that shed light on what is decisive for there to be a sound and reasonable basis for dismissal.
The rule in section 15-7 of the Working Environment Act is that the employer can terminate the contract if there is a justifiable reason. The reason can be both conditions on the employer's side (eg, reorganisation) and conditions caused by the employee themselves (eg, negligence of duty). In the case of reductions in production and rationalisation measures, it follows directly from the law that, in addition to the reason for dismissal having to be legitimate and justifiable, a balance must be struck between the interests of the employer and those of the employee.
In case law, it has been established that the same balancing of interests must be done when the dismissal is due to the employee's circumstances. In one of the judgments the Supreme Court has handed down in the past year,(1) the condition of justifiable reason is understood to mean that there must be a legitimate and weighty reason for dismissal. In addition, the negative consequences of the dismissal for the employee must be weighed against each other and how strongly the employer needs to terminate the conditions of employment.
The Working Environment Act also contains a number of procedural rules in connection with dismissal. If the employer does not follow these procedural rules, the result is often that the grounds for dismissal are considered to be unjustified.
One of the most important rules is the requirement for a consultation meeting in section 15-1 of the Working Environment Act. The purpose of the consultation meeting is for the employer to inform the employee about why they are considering dismissal, and for the employee to present their view on the matter. The consultation meeting therefore helps to ensure that the grounds for dismissal are justifiable.
In dismissal cases, documentation is often the alpha and omega for the court's conclusion. It is therefore important to make a thorough report from the consultation meeting in which the topics discussed are clearly stated.
It is also a good idea to let the employee provide input for the minutes, so that everything is included. This provides good documentation that the employee's view is actually correct and taken into account and substantiates that the grounds for dismissal are justifiable.
Court's assessment: situation at time of termination
It has been established in case law that the court's assessment must be based on the information that was available when the employer decided to terminate, and which motivated the employer at the time of termination. In principle, the employer is thus locked into the conditions, evidence and justifications that were the subject up to the time of termination.
What about information that comes to light after the decision to terminate has been made? Can this be invoked before the court as support that the dismissal was justifiable? This has been the topic of the two cases that the Supreme Court has dealt with in the past year.
One case concerned a health worker who was dismissed because they had snuck into a patient's record for private purposes. The Court found that the decisive factual basis for the judicial review was the information that was available when the dismissal was given.
Nevertheless, the Court held that it was not excluded to supplement the grounds for dismissal with new information that came to light immediately after the dismissal was given and which was closely related to the factual basis on which the employer had justified the dismissal.
In this case, it concerned information about an text exchange with the patient about which the employee had failed to notify the employer. This information was not mentioned in the dismissal or in the minutes of the discussion meeting. The Supreme Court nevertheless believed that it could be taken into account in the assessment of whether the dismissal was justified.
In the second case, the question was whether the reduced ability to work of a sick employee gave grounds for dismissal. The Supreme Court emphasised that the employer could not bring in qualitatively different circumstances during the court proceedings than those which have been given weight during the dismissal process.
According to the Supreme Court, there is nevertheless a certain opening for the employer to deepen assessments related to the reasons for the dismissal regarding the employee at the time of dismissal.
The parties have the opportunity to give explanations and provide other evidence that sheds light on the conditions at the time of termination. However, information that comes to light after a dispute has arisen, and that changes the picture provided by more recent evidence, will have limited evidential weight.
The two judgments from the Supreme Court state that the right to supplement the grounds for dismissal after a dismissal has been given is narrow. Although the basis can be elaborated to some extent if the case ends up before the courts, it is important that the employer provides a well-documented basis for dismissal before the decision on dismissal is taken.
For further information on this topic please contact Ole Kristian Olsby or Mari Vindedal 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