Justified dismissal due to the employee's circumstances – Conditions and assessment under the Norwegian Working Environment Act
The Requirement of Justification for Termination Based on the Employee’s Conduct
An employee can be dismissed if the termination is justifiably based on conditions related to the employee themselves, cf. the Working Environment Act § 15-7(1). This requirement has evolved significantly since it was first introduced in the Employment Protection Act of 1936. The current requirement of justification means that the termination cannot be based on unreasonable or irrelevant grounds, while the grounds that are justifiable must carry enough weight.
The Supreme Court in HR-2021-2389-A (Patient Record) summarized the assessment of justification such that it should first be considered whether there is a legitimate and weighty reason for dismissal. Then, the interests of the employer and the employee must be weighed against each other. For the employee, the negative consequences of a termination are central, for the employer, how strong the need is to end the employment relationship.
Relevant Conditions That May Justify Termination
For a condition to justify termination, it must meet two fundamental requirements:
The condition must be attributable to the employee themselves
The condition must have significance for the business
Typical conditions that may justify termination include:
Inadequate Work Performance
An employee’s inadequate work performance can constitute justifiable grounds for termination if:
The performance is significantly below what can be expected
The inadequacy is not just temporary
The employee has received sufficient guidance, training, and instruction
The employer's requirements have been clearly communicated
The court has previously determined that it is not sufficient that the employer can "get a better person in their place" – so-called replacement dismissal.
Breach of Duty and Refusal to Obey Orders
An employee who does not comply with the employer’s instructions may find that this forms the basis for termination under certain circumstances. This assumes that:
The employer’s orders or instructions are clearly expressed
No conditions exist that give the employee the right to refuse performance
The employee has the right to refuse to perform work that may endanger life or health. Similarly, this often applies to performing work perceived as criminal or illegal.
Breach of Loyalty Obligation
Disloyal conduct can form the basis for termination. This may include:
Competing business to the detriment of the employer
Statements that harm the employer
Misinformation at the time of employment (under certain conditions)
Unjustified Absence
Unjustified absence from work constitutes a breach of the employee's duty to work. In assessing whether such absence gives grounds for termination, the following are emphasized:
The length or number of absences
The consequences of the absence for the employer
The business's routines
The nature of the position
The employee’s fault
An employee’s absence related to legally or contractually mandated leave is justified and cannot justify termination.
The Employer’s Procedures and Their Importance
The employer's procedures are a central element in the assessment of justification. Before the employer decides on termination, the question "as far as practically possible" should be discussed with the employee and their representatives, cf. the Working Environment Act § 15-1.
The purpose of the meeting is to ensure that:
The termination is based on a correct factual basis
The employer can make a prudent overall assessment
The employee has the opportunity to provide input
Lack of discussion can lead to the termination being considered unjustified, especially if the lack of discussion may have affected the employer's decision.
Assessment of Reasonableness
As part of the assessment of justification, a balance must be struck between the needs of the business and the disadvantages the termination imposes on the employee. Relevant factors in the assessment of reasonableness are:
Long and unblemished employment
The employee’s chances of finding new employment
Opportunities for relocation
Economic consequences for the employee
It must be emphasized that in termination justified by the employee's conduct, reasonableness has traditionally played "a more subdued role" than in termination justified by the business's conditions. However, the Supreme Court has stated that the trend has "moved towards placing greater emphasis on the employee’s social conditions", but such considerations remain of lesser importance when the termination is due to the employee’s own conduct.
The more serious the breach of duty, the less reason there is to place emphasis on considerations of reasonableness in the assessment of justification.
Summary
The threshold for dismissing an employee based on the employee’s conduct is high. The central issue is whether it "is deemed reasonable and natural to terminate the employment relationship after a comprehensive weighing of both parties' needs". The employer must be able to document that there is a factual basis for the termination, and that the procedures have been conducted in a satisfactory manner.
