This is what you need to know about dismissals - a very serious reaction

Authors: Partner and lawyer Maria Elena Kvalen and lawyer Malin Stenseth

This is the difference between termination and dismissal

It is most common for an employment relationship to end with a dismissal from the employer or the employee itself. In the event of dismissal, the employee has the right to work and receive pay during a period of notice. This notice period must be at least one month. Read more about dismissal from the employer here.

In the event of termination, the employment contract is terminated with an order for immediate resignation. In contrast to dismissal, the right to work and salary ceases at the same time as the termination is announced. This means that the employee loses its basis of income on the day.

What conditions can give grounds for termination?

In order to have a valid basis for termination, the employee must have been guilty of gross breach of duty or significant breach of the employment contract.

Typical conditions that can provide factual grounds for termination are:

• Disloyalty and insubordination
• Harassment
• Unlawful absence
• Theft/embezzlement
• Inappropriate behaviour/use of drugs

We often also see the conditions listed above as grounds for dismissal.

As a result of termination having major financial consequences for the employee, termination is nevertheless reserved for the most serious cases. It is only when the conditions above are of a particularly serious nature that the employment relationship can be terminated by termination.

Consider: Is it critical for the business that the employee has to leave immediately?

Before an employee is notified of termination, the employer should make an assessment of how precarious it is that the employee resigns immediately.

If it is likely that the employee will commit new violations during the notice period, and for this reason it would be unjustifiable for the employee to work during the notice period, the interests of the business may justify termination. Examples include cases of sexual harassment or violence against employees or customers, as well as theft/embezzlement against the employer.

How to proceed?

The Working Environment Act sets out strict requirements for how the employer must proceed in both termination and dismissal processes. The procedure for these processes is very similar.

Among other things, there is a requirement that the employer must hold a discussion meeting with the employee and the employee’s representative before a decision is made on termination or dismissal. In this way, the employee is given the opportunity to comment on and counter the conditions on which a termination/dismissal will possibly be based, and the employer gets the best possible basis for making a well-considered decision.

As with dismissal, a termination must also be in writing. The termination must be delivered to the employee in person or sent by registered post.

The rules for the content of a dismissal or termination letter are also the same. Read more about content requirements here.

Did you know:

• There is no requirement that the employee must have received a verbal or written warning in order to have valid grounds for termination.
• If the employee requests it, the employer must state the circumstances invoked as a reason for the termination. The employee can demand to receive this information in writing.
• The employer can state in a written certificate that the employee has been terminated.
• In the event of termination, as a general rule, an employee does not have the right to continue in the position when a dispute is dealt with by the court.

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If you are unsure about the process, we recommend that you seek legal assistance today. SANDS’ employment law team regularly assists employers in dismissal processes. Feel free to contact us.