Employee's Right to Terminate the Employment Contract – Conditions, Legal Effects, and Burden of Proof

While the employer's right of dismissal is expressly regulated in the Working Environment Act § 15-14, the employee's right to terminate the employment contract is not legislated in the Working Environment Act. Instead, this right follows from general contractual principles. The employee's right of termination implies that the employee can immediately resign from the position if the employer significantly breaches their duties in the employment relationship, and at the same time make a claim for compensation for financial loss.

Legal basis for the employee's right of termination

The employee's right of termination is based on general contractual rules regarding termination, which also apply to employment contracts. The right is not explicitly regulated in the Working Environment Act, but is supported by case law, particularly from the fundamental ruling in Rt. 1997 p. 1506 (Stryn Pharmacy).

However, for certain professions, there are statutory provisions that regulate the right of termination:

• The Education Act § 4-6 (3) provides legal basis for a trainee contract to be terminated if the training establishment significantly breaches its duties

• The Maritime Labor Act § 9-5 regulates a seaman's right to resign in certain cases, without necessarily ending the employment contract

Conditions for employee termination

For an employee to terminate the employment contract, there must be a significant breach by the employer. The requirement of significance implies that there must be serious violations of the employer's obligations.

Typical examples of conditions that may constitute significant breach include:

1. Lack of salary payment

   • Repeated or seriously delayed payment

   • Incorrect calculation of salary over time

2. Harassment of the employee

   • Bullying or harassment from management

   • Lack of intervention in cases of colleague harassment

3. Violation of safety regulations

   • Failure to ensure safe working conditions

   • Lack of training or protective equipment in high-risk positions

4. Serious breaches of labor protection legislation

   • Violation of working time regulations

   • Lack of compliance with health and safety regulations

5. Psychosocial work environment problems

   • Severe cooperation problems that the employer does not address

   • Persistent bullying or harassment that the employer does not intervene against

The threshold for termination - Stryn Pharmacy ruling

The Supreme Court in Rt. 1997 p. 1506 (Stryn Pharmacy) provided crucial clarifications regarding the threshold for the employee's right of termination. The case concerned three pharmacy employees who did not return to work after sick leave due to prolonged cooperation problems with the employer.

The Supreme Court established the following key principles:

1. Basic requirements for the work environment are part of the rights and obligations in an employment relationship

2. There is a distinction between:

   • Physical working conditions (facilities and circumstances)

   • Psychosocial conditions (conflicts arising from communication and cooperation)

3. When it comes to psychosocial work environment problems, a lot is required before it can be considered a significant breach justifying termination

The ruling illustrates that the threshold for termination is high, especially regarding conflicts and cooperation problems. Nevertheless, the Supreme Court concluded in this case that the employer had significantly breached the employment contract, particularly due to the employer not fulfilling its "special duty" to improve conditions after the problems were identified through an inspection by the Health Directorate.

Factors for assessing significant breach

When assessing whether an employer's breach is significant, several factors must be considered:

1. Nature and severity of the breach

   • The more serious the breach of the employer's obligations, the easier the requirement of significance will be met

2. Duration of the breach

   • Prolonged breach will more readily be considered significant than isolated incidents

3. Employer's knowledge and actions

   • Whether the employer has been made aware of the problems

   • What measures the employer has implemented to rectify the conditions

4. Subjective conditions of the employer

   • Whether the breach was intentional or negligent

   • Whether the employer has attempted to conceal or downplay the problems

5. Consequences for the employee

   • What consequences the breach has had on the employee's health, safety, or welfare

Consequences of termination

When an employee terminates the employment contract due to the employer's significant breach, the following legal effects occur:

1. Immediate termination

   • The employee can leave the position without notice period

   • The employment relationship ends with immediate effect

2. Claims for compensation

   • The employee can claim compensation for financial loss

   • This may include lost wages during the period of finding new employment

   • Possible expenses related to job-seeking or retraining

   • Any loss of pension rights or other benefits

3. No waiting period for unemployment benefits

   • Unlike voluntary resignation, the employee will normally not face a waiting period for unemployment benefits from NAV

Practical considerations and burden of proof

It is important that an employee considering terminating the employment contract documents the breach and their communication with the employer. This can be crucial in any later dispute over whether the right of termination was justified.

The employee should usually make the employer aware of the breach and give the employer the opportunity to rectify the conditions before termination becomes relevant. This can strengthen the employee's position if the case is later brought to court.

In practice, it will be the employee who must prove that there was a significant breach by the employer that justified terminating the employment contract. This underscores the importance of good documentation.

The difference between employee termination and voluntary resignation

It is important to distinguish between the employee's termination of the employment contract and a regular voluntary resignation:

Conclusion

The employee's right to terminate the employment contract is an important safety valve in cases where the employer significantly breaches their obligations. However, the threshold for termination is high, and the employee should be cautious in asserting this right without clear violations of the employer's duties. Good documentation and attempts to resolve the problems through dialogue with the employer will be important both for assessing whether the conditions for termination are met and for standing stronger in any future dispute.