Dismissal in Employment Relationships – Conditions, Process, and Case Law

Dismissal represents the employer's right to terminate the employment contract with immediate effect when an employee has been found guilty of gross misconduct or other significant breach of the employment agreement. This contractual principle is enshrined in the Working Environment Act § 15-14. The threshold for dismissal is very high, as this reaction results in the employee losing both their job and income immediately, often leading to a waiting period for unemployment benefits and significant social consequences.

The Legal Basis for Dismissal

The right to dismiss is rooted in the Working Environment Act § 15-14 and is based on general contractual principles of termination due to significant breach. This right has a long tradition in Norwegian labor law and was anticipated as early as in the Labor Protection Act of 1936, although the rules took their current form with the Working Environment Act of 1977.

For a dismissal to be justified, the employee must have been guilty of "gross misconduct or other significant breach of the employment agreement." The expression "gross misconduct" specifies "significant breach" and is encompassed by this term.

Typical Reasons for Dismissal

It is not possible to provide an exhaustive list of circumstances that may qualify for dismissal, but typical examples include:

• Refusal to obey orders

• Illegal or criminal activities

• Breach of loyalty or confidentiality obligations

• Use of intoxicants while on duty

• Harassment of colleagues, customers, or others

• Financial misconduct such as embezzlement

• Violence or threats

What is particularly notable about dismissal as opposed to termination, is that the circumstances are usually of such a nature that the employer has a need to terminate the employment relationship immediately.

Comprehensive Assessment in Dismissals

Isolated Incidents and Repeated Misconduct

A dismissal is often triggered by a single act that is so serious that it alone qualifies for dismissal. However, repeated minor breaches can together form a basis for dismissal. This is especially relevant in cases where the employee has received warnings or reprimands but continues with the same type of misconduct.

The Requirement of Guilt

The wording in § 15-14 suggests that subjective blame is required, as the employee must have "been guilty of" gross misconduct or significant breach. It is, however, unclear whether there is an absolute requirement that the situation be subjectively blameworthy. In practice, the employee's degree of guilt will nonetheless be an important factor in the comprehensive assessment. The Supreme Court has stated that consideration should be given to whether the employee's conduct was due to thoughtlessness or was the result of deliberate behavior.

Reasonableness Assessment and Proportionality

The Supreme Court has established that in the assessment of dismissals, "a broader overall evaluation" must be carried out, considering both the employee's and the company's circumstances. The dismissal must not appear as an "unreasonable or disproportionate reaction."

Relevant factors in this overall evaluation may include:

1. The nature and severity of the action

2. The consequences or potential damage of the action

3. The employee's subjective circumstances (intent, negligence)

4. The employee's position (managers are assessed more stringently)

5. The employer's behavior (follow-up, facilitation)

6. Whether termination is a sufficient reaction

The Significance of Considerations of Reasonableness

Supreme Court practice does not provide unequivocal answers as to the weight that pure considerations of reasonableness should be given in dismissal cases. As dismissals typically impact the employee harshly, there must be special circumstances before subjective considerations of reasonableness, such as age, responsibilities, and prospects for new employment, can play a decisive role in cases where the employee's conduct, in isolation, constitutes gross misconduct.

Recent lower court practice may suggest that considerations of reasonableness have gained increased importance in the overall assessment, but it is questionable whether this development is consistent with the guidelines from the Supreme Court.

Illustrative Cases from Jurisprudence

The Professor Case (Rt. 2002 p. 273)

In this case, a professor was dismissed after sexually harassing several female students, a research fellow, and a technician. The Supreme Court emphasized that the professor acted in violation of his duties and ignored a previous warning and reprimand. This represented gross misconduct that formed the basis for dismissal.

The Porn Download Case (Rt. 2005 p. 518)

Two employees were dismissed for downloading pornography and engaging in other internet use in violation of the company's rules. The Supreme Court found that the dismissal appeared to be a disproportionate reaction. It was crucial that the employer had for a long time been aware that employees were breaching the internet use rules without following up on this. The Supreme Court also noted that the two employees had long seniority without previous remarks.

The Sara Hotel Case (Rt. 1988 p. 1188)

In this case, bar staff refused to use a new cash register system. The Supreme Court ruled that this was an unjustified refusal to follow orders, but consideration had to be given to the employer's behavior. It was noted that it was unclear why the employer had suddenly changed their stance in connection with training for the system. The dismissal thus appeared to be a disproportionate reaction.

Dismissal versus Termination

A central factor in the assessment of dismissal is whether termination appears to be a sufficient reaction. If the court believes that there is no basis for dismissal, the dismissal may be upheld as a termination if the conditions for termination are met, per the Working Environment Act § 15-14 (3). This presupposes that the employer has made a specific claim in this respect.

The difference between dismissal and termination is significant for the employee:

• Upon dismissal, the employment relationship ceases immediately

• Upon termination, the employment relationship persists during the notice period

• Upon termination, the employee generally has the right to remain in the position while any dispute is ongoing

Procedure in Dismissal Cases

In dismissals, essentially the same procedural rules apply as with termination. This involves:

1. Duty to Confer: The employer must, as far as practicable, discuss the matter with the employee and union representatives before the decision to dismiss is made.

2. Formal Requirements: The dismissal must be communicated in writing and include information regarding the employee's right to demand negotiations and initiate legal proceedings, as well as deadlines for this and who is the employer and proper party to sue.

Unlike in termination, the dismissal does not have to include information about the right to remain in the position or preferential rights, as these rules do not apply in the case of dismissal.

An important difference from termination cases is that procedural errors in dismissal do not automatically render it invalid. Breach of formal requirements means that no time limit for legal action begins to run.

Conclusion

Dismissal is the most severe action an employer can take against an employee and presupposes that the employee has been guilty of gross misconduct or other significant breach of the employment agreement. A comprehensive assessment must be made where both objective and subjective factors are considered. The dismissal must appear to be a reasonable and proportionate response in light of the circumstances.

The threshold for dismissal is very high, and the employer must ensure that both the substantive conditions and procedural rules are fulfilled for the dismissal to hold legally.