Employment Law: Disputes about Termination and Dismissal
When the employment relationship is terminated through dismissal or summary dismissal, and the employee disputes the legitimacy of this, special procedural rules apply. The Norwegian Working Environment Act Chapter 17 contains provisions on negotiation rights, lawsuit deadlines, and the employee's right to remain in position while the dispute is ongoing. These rules are central to ensuring real protection against dismissal while balancing the interests of both employees and employers in a conflict situation.
Employee's right to negotiate
Purpose and content
The right to negotiate is regulated in the Norwegian Working Environment Act § 17-3 and gives the employee the opportunity to request negotiations with the employer when the employment relationship has ended through dismissal or summary dismissal. This right applies regardless of whether the employee claims that the dismissal is illegal or merely demands compensation.
The purpose of the right to negotiate is to give the employee a better basis for assessing whether the dismissal or summary dismissal is legitimate. This can help resolve disputes at an early stage without the parties having to go to court.
Procedure and deadlines
An employee who wishes to request negotiations must follow a specific procedure:
The request for negotiations must be submitted in writing to the employer
The request must be submitted within two weeks from when the dismissal/summary dismissal took place
Emails will likely be sufficient to meet the requirement for being in writing
The decisive factor for calculating the two-week deadline is when the dismissal or summary dismissal has reached the employee. It is not required that the employee has actually become aware of the dismissal or summary dismissal.
Conducting negotiations
When the employee has requested negotiations, the employer is obliged to ensure that a negotiation meeting takes place:
The meeting should be held as soon as possible and no later than two weeks after the request is received
Both the employer and the employee have the right to be assisted by an advisor, such as a lawyer
A protocol of the negotiations must be drawn up, which must be signed by the parties and any advisors
The negotiations must be concluded no later than two weeks after the date of the first negotiation meeting, unless the parties agree to continue negotiations beyond this deadline.
Employer's right to negotiate
The employer also has the right to request negotiations if these have not already been held. However, this right applies only when the employee has filed a lawsuit or the employer has been notified that a lawsuit will be filed.
The same rules apply to the employer's request for negotiations as when the employee requests negotiations:
The request must be submitted in writing
The request must be submitted as soon as possible and no later than two weeks after the employer has been notified of the lawsuit
The employer must ensure that the negotiation meeting is held
An important difference is that the employee is obliged to attend negotiations when the employer requests it. If the employee does not attend, this may affect the right to remain in position and can also be considered in the assessment of reasonableness or the determination of compensation.
Employee's right to remain in position
Purpose and main rule
The right to remain in position during disputes about dismissals is regulated in the Norwegian Working Environment Act § 15-11. This rule has two main purposes:
Ensure that the employee gets a real opportunity to continue in the employment if the dismissal is later declared invalid
Ensure that the employee has income during the period the dispute is ongoing
The main rule is that the employee has the right to continue in the position as long as negotiations are ongoing under § 17-3. This right also continues after negotiations are concluded, provided the employee has filed a lawsuit within the deadlines set out in § 17-4.
Exceptions from the main rule
The right to remain in position does not apply in cases of:
Dispute about summary dismissal
Dismissal during the probation period
For hired workers
For temporary employees
For participants in labor market measures organized by or in cooperation with NAV who are dismissed due to transition to regular work, transfer to another measure, or completion of the measure
In the case of disputes about summary dismissal, dismissal during probation, for hired workers, or temporary employees, the court can nevertheless, upon the employee's request, decide that the employment relationship should continue until the case is finally decided. This requires that a lawsuit is filed within the deadlines set out in § 17-4.
Employer's request for resignation
Even though the employee initially has the right to remain in position, the employer can request that the court decides that the employee should resign during the handling of the case. This is regulated in § 15-11(2) second sentence. The condition is that the court finds it "unreasonable" for the employment relationship to be maintained during the handling of the case.
In the assessment of unreasonableness, several factors are relevant:
The consequences that continuation or resignation will have for the employee and the employer
What opportunities exist for reassignment or other work tasks
Whether there is a strained relationship between the parties that may affect the work environment
The financial consequences for the business
The likely outcome of the dismissal case
There is a distinction made between dismissals justified by the employee's conduct and dismissals justified by the company's circumstances. For dismissals justified by the company's circumstances, there must be more before the court grants the employer's request for resignation.
Lawsuit deadlines
Length and starting point of the deadlines
The Norwegian Working Environment Act § 17-4 establishes the following lawsuit deadlines:
Eight weeks if the employee will claim that the dismissal/summary dismissal is illegal
Six months if the employee only claims compensation
The deadlines are calculated from:
The conclusion of negotiations if negotiations have been held
The dismissal/summary dismissal took place if no negotiations have been held
Exceptions from the deadlines
There are several exceptions to the lawsuit deadlines:
The parties can agree on a longer lawsuit deadline
If the employer's dismissal or summary dismissal does not meet the formal requirements in § 15-4, no lawsuit deadline applies
In case of dismissal during leave due to pregnancy, childbirth, adoption, or military service, the court may grant reinstatement of the lawsuit deadline if deemed reasonable
Consequences of missing the deadline
If the lawsuit deadline is missed, the court shall dismiss the lawsuit. This applies even if the employee was excusably unaware of the deadlines or other circumstances. Missing the lawsuit deadlines in § 17-4 is not considered absence, and therefore, reinstatement cannot be granted under the Dispute Act's rules.
Even though there is no lawsuit deadline where the dismissal does not meet the formal requirements, the Supreme Court has established that it must generally be required that a lawsuit regarding the legality of a past action must be filed within a reasonable time.
Evidence assessment in disputes regarding the termination of employment
Burden of proof
The starting point is that the employer bears the burden of proof for the factual circumstances on which the dismissal or summary dismissal is based. Thus, the employer has the burden of proof for the facts on which the decision is based.
The burden of proof may, however, shift during the case. When one party has presented evidence for a matter, it may be up to the other party to refute this. Under the circumstances, the employee may be the closest to clarifying factual matters.
Evidence requirements
In dismissal and summary dismissal cases based on severely blameworthy or defamatory conditions, the general rule is a requirement of qualified, clear, or strong probability preponderance. This is stricter than the general weight of evidence principle otherwise applicable in civil matters.
However, there are exceptions to this stricter evidence requirement. In cases where the consideration for third parties is significant, such as in the suspicion of abuse against children or irresponsible conduct towards patients or clients, the general weight of evidence principle may apply.
Proximity of evidence and documentation requirements
The examination of the legitimacy of the dismissal or summary dismissal must be based on the factual circumstances at the time of dismissal or summary dismissal. Proximity evidence has the greatest weight, while information that emerges after the dispute has arisen, which alters the picture given by the proximity evidence, will normally have limited evidential value.
However, courts can rely on party and witness statements to illuminate the employer's assessments and the basis for them. The strictness of the documentation requirements depends on the grounds for dismissal. The more discretionary and subjective criteria are, the better documentation required.
Conclusion
The procedural rules in disputes regarding the termination of employment are central to ensuring real job protection. The rules are designed to balance the employee's need to dispute a dismissal or summary dismissal against the employer's need to implement necessary changes in the business. To safeguard their rights, it is important that both employees and employers are aware of and adhere to the deadlines and procedures set out in the Norwegian Working Environment Act.
