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The Norwegian model is based on tripartite cooperation between the government, unions and employers. Norway is a country with a well-regulated working life and good cooperative relations. The Working Environment Act and the collective agreement system are important pieces in this model. Those who are organized have access to help from the union and lawyers, and the union can help workers who are subject to unfair dismissals, lower wages or have questions about their employment contracts etc. To be proven right you must, as a starting point, have a brief knowledge of the dismissal rules in Norway.
According to section 15-7 in the Norwegian Labour Act the employees may not be dismissed unless this is objectively justified based on circumstances relating to the undertaking, or the employee.
The provision establishes that a dismissal of the employee must not be “unfair”. The courts can test whether the dismissal is based on a correct factual basis, and whether the justification is based on relevant arguments. The courts have full right of review and can also test whether sufficient emphasis has been placed on concrete reasonableness, cf. Supreme Court decisions (in Rt. 1984, p. 1058 etc).
The termination must be assessed based on the situation at the time of termination. Missing or incomplete reasons are given great weight, and the courts will review all circumstances that were motivating for the employer at the time of dismissal. A subsequent justification from the employer, or new circumstances that are not directly related to the dismissal, will normally have little weight.
It is common to distinguish between dismissal due to the employee’s circumstances, and dismissal due to the company’s circumstances. Circumstances on the employee’s side that can give factual grounds for dismissal are normally actions, such as clear cases of disloyalty, refusal of orders or fraudulent behavior. In the Supreme Court case in HR-2021-2389A, for instance, a healthcare worker was dismissed from her position because she had several times accessed documents in a patient’s medical record without any official need. This was considered a serious breach of privacy and duty.
The employer must prove that the conditions referred to have occurred. If the employer is wrong here, the dismissal will normally be deemed invalid. If the employer has stated grounds that may seem particularly burdensome, the employer has a particularly strict duty to provide documentation and evidence that the alleged conditions have taken place.
In the event of termination due to the employee’s circumstances, it can be significant whether it is a matter of repeated breaches of duty, but individual actions can also give factual grounds for dismissal if the actions, or negligence, are serious enough. Basically, there must be a clear marked deviation in work performance or behavior to be objective justification. Emphasis must be placed on conditions that can be excused, and also on possibly aggravating circumstances. In short, the factual assessment will result in an assessment of whether the dismissal appears to be a reasonable reaction when all circumstances are considered.
The provision in the law states that not every saving or rationalization gain can justify a dismissal. The employer must make a balance between the company’s needs to implement the change and the specific and individual disadvantages that the individual employee will suffer in the event of dismissal. Before dismissals are made, the facts must be assessed concretely for each individual employee.
In companies bound by a collective agreement, the principle of seniority is in a special position, see for instance the LO-NHO Basic Agreement, section 8-2 which states that seniority can only be waived when there is a “fair” reason. The conditions for deviating from seniority are tightened when the employees to whom the case relates have considerable seniority and if the differences in seniority are large (Labour Court judgement in ARD 2016-151 etc).
Also, outside the area of collective bargaining law, seniority will be important in the factual assessment. The Supreme Court has emphasized that in the case of downsizing, the more subjective and discretionary the justification of the undertaking is, the stricter the requirements are.
The law has some special provisions against dismissal, such as section 15-8 in the Norwegian Labour Act in the event of sickness: An employee who is wholly or partly absent from work owing to accident or illness may not be dismissed for that reason during the first 12 months after becoming unable to work. Unless other grounds are shown to be highly probable, absence from work owing to accident or illness shall be deemed to be the reason for dismissal during the period when the employee is protected against dismissal pursuant to this section.
For further studies of the Norwegian Labour Act, see an introduction to the law in English, push the link:
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