Ship workers may terminate their own employment without further justification. A dismissal by the employer, however, must always be fairly justified in the circumstances of the employer or the business, or in circumstances that are due to the employees themselves. When does an employer really have such fair basis to dismiss a ship worker?
Dismissal due to the employer’s or the business’s circumstances
Downsizing and readjustment processes can be necessary to ensure a sound basis for further operation or to make operations in the business more efficient. In such situations, the employer will normally have a fair basis for dismissal as long as the employer has no other suitable work to offer the employee. Remember that a fair selection must nevertheless be made and a balancing between the employer’s need for dismissal and the disadvantages for the employee.
Pursuant to the Norwegian Ship Labour Act, registration of a ship in NIS will always provide a fair basis for dismissal if the employer has no other suitable work to offer the employee.
Dismissal due to the employee’s circumstances
Typical circumstances of an employee that may constitute a fair basis for dismissal are:
- Disloyalty and breach of instructions
- Harassment
- Insufficient work performance
- Missing work and illegal absence
- Use of drugs
Note that employees have strong protection against dismissal and that the threshold for fair dismissal is high. In the case of dismissal due to insufficient work performance, for example, the courts have set a requirement that there must be a pronounced failure or a qualified deviation in the work performance. If this is not the case, the dismissal may be considered unfair. Due to the special circumstances at sea, circumstances that may pose a safety risk will normally constitute a fair basis for dismissal.
Dismissal due to illness of the employee
The employer cannot dismiss a ship worker on sick leave due to absence during the first 12 months of sick leave, regardless of the cause of the illness and the prospects for recovery. The Ship Labour Act specifies that an employee who wants to invoke protection against dismissal due to sick leave must give notice of the reason for the absence within a reasonable time. The employer may also request a doctor’s certificate as confirmation of the total absence. However, an employee on sick leave may be dismissed on other grounds than the illness itself.
Dismissal during the probation period
During the probation period, the Ship Labour Act gives the employees somewhat weaker protection against dismissal. Dismissals during the probation period are justified by the employee’s adaption to the work, professional skill or reliability. However, the rules on dismissal during the probation period do not restrict the employer’s right to dismiss an employee pursuant to the ordinary rules on dismissal.
Redundancy and offer of alternative employment
The threshold for a valid dismissal will normally be lower than if the employee is at the same time offered a new position in the business, typically in connection with reorganisation. Redundancies and offers of alternative employment will also be relevant if there are changes beyond the employer’s right to manage.
How to proceed?
The Ship Labour Act sets strict requirements for how the employer shall act in dismissal processes. Requirements for the employer to inter alia hold a discussion meeting with the employee and the employee’s representative before a decision on dismissal is made. This way, the employee is given the opportunity comment and counter the circumstances a dismissal could be based on, and the employer will have the best possible basis on which to make a considered decision.
The Ship Labour Act also sets requirements for the dismissal to be in writing, as well as delivering this to the employee personally or to be sent as a registered letter. If the employee is working on board, the dismissal should preferably be delivered in person.
The dismissal shall contain the following information:
- The employee’s rights to demand negotiations and file an action
- The employee’s rights to continue in the position
- The deadlines applicable to demand negotiations, file an action and to continue in the position
- Who the employer is and the correct defendant in potential disputes
Remember: As a starting point, ship workers are not entitled to continue in their positions during the processing of actions related to the validity of a dismissal.
Remember: If the dismissal is based on the circumstances of the business, the dismissal shall also contain information on priority.
Did you know:
- There is no requirement for the employee to have received an oral or written warning for a dismissal to be able to be considered to be factually justified.
- A dismissal cannot be justified solely by the fact that the employer has found a candidate for the position who is “better” or “more able”.
- A dismissal that does not meet the formal requirements will generally be found to be invalid if the employee does not take legal action within four months.
If you are unsure of the process, we recommend you seek legal advice today. SANDS’ employment legislation team regularly assists employers and shipping companies in dismissal processes both on land and at sea. Feel free to contact us.