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An employee on sick leave could resume the position

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Legal news
calendar 21 February 2020
globus Norway

In connection with an unfair dismissal litigation, a health worker submitted a petition to resume the position at a municipal nursing home. The Courts of Appeal found no reason to deviate from the main rule of resuming the position.

A health worker was terminated from her 75 % position, after a 3-year sick leave, as her health had no view of improvement. The health worker had expressed a wish to remain in the position but did not include this in the court summons. As the municipal asserted that the health worker did not remain in position, the health worker submitted a petition to resume the position. The municipal did submit a petition that the health worker was to leave her position.

The municipal argued that resuming the position presupposes that the employee is capable of working, and that her leave was not legal. Further, the health worker had not been unlawfully locked out of her place of work, and the petition to resume the position was not timely. The health worker argued that resuming the  “position” is to be understood broadly as “employment”, and that the health worker was unlawfully locked out of her place of work, as the municipal’s lack of facilitation made it impossible for the health worker to perform her work duties.

The main question for the Courts of Appeal was therefore whether the health worker’s petition to resume the position would be accepted.

The managerial right remains during termination lawsuits

The Court of Appeals understood the municipals argument of non-legal leave to mean that the health worker had resigned from her position. The court did, however, not agree that there was illegal leave, as both parties had known that the health worker’s health made it impossible for her to perform her work duties. Despite this, the communication between the parties showed a joint understanding that the employment remained.

Based on preparatory work and incorporated case law, the court found that the term “position” had to be understood as the “employment” as another understanding would not harmonize with the employer’s managerial right to facilitate the work and potentially relocate. The court, therefore, concluded that the fact that the position’s concrete work tasks could not be performed could not be given crucial weight.

With regards to the question of unlawfully lock out, the court referred to the municipal’s arguments during the termination lawsuit, hereby that the health worker did not remain in the position. As the municipal had not submitted a petition that the health worker was to leave her position, the end of the employment had to be when the municipal submitted these arguments. Following this, the health worker’s petition was timely.

Lastly, the court found that the main rule is for the employee to resume the position, unless this must be found unreasonable. As the municipal’s managerial right remained, hereby to facilitate and relocate, the court did not find any unreasonable circumstances that could imply that the main rule should be deviated.

IUNO’s opinion

The judgement confirms the main rule of the employee’s right to remain in or resume the position, and at the same time the employer’s managerial right to facilitation is emphasized.

IUNO recommends companies to endeavor to facilitate for their employees prior to any potential termination. The judgement illustrates that the right to remain in or resume the position is strong and can only be deviated in clearly unreasonable circumstances.

A health worker was terminated from her 75 % position, after a 3-year sick leave, as her health had no view of improvement. The health worker had expressed a wish to remain in the position but did not include this in the court summons. As the municipal asserted that the health worker did not remain in position, the health worker submitted a petition to resume the position. The municipal did submit a petition that the health worker was to leave her position.

The municipal argued that resuming the position presupposes that the employee is capable of working, and that her leave was not legal. Further, the health worker had not been unlawfully locked out of her place of work, and the petition to resume the position was not timely. The health worker argued that resuming the  “position” is to be understood broadly as “employment”, and that the health worker was unlawfully locked out of her place of work, as the municipal’s lack of facilitation made it impossible for the health worker to perform her work duties.

The main question for the Courts of Appeal was therefore whether the health worker’s petition to resume the position would be accepted.

The managerial right remains during termination lawsuits

The Court of Appeals understood the municipals argument of non-legal leave to mean that the health worker had resigned from her position. The court did, however, not agree that there was illegal leave, as both parties had known that the health worker’s health made it impossible for her to perform her work duties. Despite this, the communication between the parties showed a joint understanding that the employment remained.

Based on preparatory work and incorporated case law, the court found that the term “position” had to be understood as the “employment” as another understanding would not harmonize with the employer’s managerial right to facilitate the work and potentially relocate. The court, therefore, concluded that the fact that the position’s concrete work tasks could not be performed could not be given crucial weight.

With regards to the question of unlawfully lock out, the court referred to the municipal’s arguments during the termination lawsuit, hereby that the health worker did not remain in the position. As the municipal had not submitted a petition that the health worker was to leave her position, the end of the employment had to be when the municipal submitted these arguments. Following this, the health worker’s petition was timely.

Lastly, the court found that the main rule is for the employee to resume the position, unless this must be found unreasonable. As the municipal’s managerial right remained, hereby to facilitate and relocate, the court did not find any unreasonable circumstances that could imply that the main rule should be deviated.

IUNO’s opinion

The judgement confirms the main rule of the employee’s right to remain in or resume the position, and at the same time the employer’s managerial right to facilitation is emphasized.

IUNO recommends companies to endeavor to facilitate for their employees prior to any potential termination. The judgement illustrates that the right to remain in or resume the position is strong and can only be deviated in clearly unreasonable circumstances.

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Anders

Etgen Reitz

Partner

Sofie

Aurora Braut Bache

Associate

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