In this blog, we are going to look at some of the most common mistakes employers make when terminating an employee.
In order for the dismissal to be valid, the employer needs a reasonable cause.
The employer has the so-called burden of proof that a termination of the employee is reasonable. In order to prove this, it is necessary to have sufficient written documentation.
The type of documentation required will vary on a case-by-case basis. However, written minutes from the performance review meeting, previous warnings or other forms of feedback, performance measurements or, for example, correspondence with the employee will often be required. The purpose of the documentation is to be able to prove:
Without sufficient documentation, it will be very difficult to prove that there is a reasonable cause for termination.
Many employers are in a hurry once they have decided to dismiss a worker. What many employers are not aware of, is that it often takes a certain amount of time to build a reasonable cause for termination.
In Norway, it is very rare that the employer has reasonable cause to dismiss an employee after only one mistake. In most cases an employee’s inadequate performance, bad behavior or similar must have persisted for a certain period of time, before it can constitute reasonable cause for termination.
In addition, it is necessary to spend sufficient time on the dismissal process itself to ensure that all requirements for dismissal are met.
It is important to keep an ongoing dialogue and give concrete feedback to the employee, to give the employee a chance to improve, based on the feedback given by the employer. Other possible solutions must also be considered.
Also read: Be aware of the strict rules for termination of employment in Norway
Before deciding to dismiss an employee, discussions must be held with the employee. This is done at a so-called discussion meeting.
It is of great importance that the discussions are real. If the employee is given a dismissal notice during the discussion meeting, or the employer in other ways expresses that the decision of termination has already been made, the dismissal process may be deemed invalid.
It is therefore important that the employer awaits making the final decision until after the discussions have been completed. It is only after discussing the matter with the employee and thoroughly assessing all aspects of the case that there will be an adequate basis to consider whether a termination should be given or not.
Also read: Workforce reductions in Norway: Be aware of the employee rights!
When it is the employee that resigns, there are no formal requirements for how the notice should be given or to the content of the termination letter.
However, when you as an employer dismiss an employee, there are strict requirements. Firstly, the dismissal notice must be in writing. Secondly, there are several requirements for what the notice must contain. If the notice does not meet the requirements set out in the Working Environment Act, the dismissal may be deemed invalid.
Also read: Norwegian employment contracts – do’s and don’ts
The Working Environment Act states that the dismissal notice must be delivered to the employee in person or forwarded by registered post.
If you send the termination letter to the employee by ordinary mail, this will not automatically result in the termination being invalid. However, you will not be able to prove that the termination letter was received by the employee. This may result in the termination being deemed not to have been given or being unlawful.
Termination letters must therefore always be sent by registered mail or handed over personally to the employee as stated by law.
In the event of a personal handover to the employee, you must also remember to get a signature from the employee to confirm that the notice is received.
If mistakes are made in the dismissal process, or there is no reasonable cause for termination, the risk of compensation claims from the employee will be high.
Therefore, we recommend that you get a quality assurance of both the basis for termination and the procedure before you start any termination process. Mistakes are often difficult to correct after the fact. Getting assistance in advance can therefore be a good investment to avoid legal processes that will be both time-consuming and costly for your business.
Find out how we can assist your company with labour law in Norway