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HR Legal

Employee’s disregard for safety justified termination

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Legal news
calendar 28 November 2021
globus Norway

It can be difficult to draw the line of when an employee’s behavior no longer is acceptable. In a recent case, a company decided to terminate an employee as a result of his dangerous behavior over seven years. Among other things, the employee had fallen asleep at work and had had problems with drugs and alcohol. The termination was justified because of the safety risk the employee had caused to his colleagues and the company’s operations.

The case concerned a quarry worker, who was employed by a company engaged with the extraction and sale of stones. Due to the nature of the work, the company consequently had strict safety requirements in place, namely as its operations involved the use of large machinery and heavy materials. Its employees were therefore carrying out work tasks that involved a high risk of getting injured.

Irrespective of the safety risks, the employee had repeatedly violated the company’s requirements over a period of seven years. He had both received written and oral warnings as a consequence, which had not resulted in any changes in his behavior. In fact, in addition to his past issues involving alcohol and drugs, the employee had, among other things, failed to present the company with a valid driver’s license, fallen asleep repeatedly during working hours while machinery was operating, driven recklessly, and broken into the workplace in the middle of the night to drive the company car and to repair his own car at the company’s workshop.

Following a discussion meeting, the employee was terminated as the company considered him to expose himself, as well as his colleagues and the company to a substantial safety risk. The employee was convinced that the termination was unjustified and brought the case to court.

Hazardous and unacceptable behavior justified termination

When the nature of a position comes with strict safety requirements, the threshold is lower for when a termination is considered justified following a breach of such requirements. Already because the employee could be considered to constitute a substantial safety risk, the termination of him was justified.

In its assessment, the court emphasized that the employee’s behavior constituted both serious and repeated breaches of his obligations towards the company. Although he had caused several near accidents, his behavior had not changed despite the fact that the company had issued warnings, attempted to relocate him and changed his work tasks. As relocations had not been successful, the company had even created a new service position for him. In his new position, the employee had chosen to drive so recklessly around the workplace in a tractor that it had to be kept with a permanent lock on the gear to avoid any accidents. The employee’s co-workers had also expressed that they felt unsafe when working nearby him and described serious co-operation issues and a lack of impulse control.

On this basis, the court also emphasized that the employee had neglected his obligations so seriously that he had breached his obligations under the employment contract, due to his failure to comply with his duty to perform his work and to follow the company’s instructions.

IUNO’s opinion

In situations where employees have had an unacceptable behavior over a longer period of time – even years – it can be difficult to suddenly proceed to termination. The reason is that when the company has not previously sanctioned the behavior, the duration can make it appear as though the company has accepted the employee’s actions. This case illustrates both the importance of warnings and that the severity of the behavior can be decisive.

There is not necessarily a requirement for previous warning for a termination to be justified. However, warnings can document that the employee’s behavior constitutes a recurring problem that is not tolerated. Nevertheless, IUNO recommends that companies carefully consider when formal, written warnings are to be applied. Warnings should only be issued when companies want to correct unwanted behavior or where the employee has breached his or her duties, but the company does not want to proceed to termination. For example, due to undocumented absence or lacking performance.

[The Norwegian Agder Court of Appeals’ judgement LA-2021-58180 of 26 October 2021]

The case concerned a quarry worker, who was employed by a company engaged with the extraction and sale of stones. Due to the nature of the work, the company consequently had strict safety requirements in place, namely as its operations involved the use of large machinery and heavy materials. Its employees were therefore carrying out work tasks that involved a high risk of getting injured.

Irrespective of the safety risks, the employee had repeatedly violated the company’s requirements over a period of seven years. He had both received written and oral warnings as a consequence, which had not resulted in any changes in his behavior. In fact, in addition to his past issues involving alcohol and drugs, the employee had, among other things, failed to present the company with a valid driver’s license, fallen asleep repeatedly during working hours while machinery was operating, driven recklessly, and broken into the workplace in the middle of the night to drive the company car and to repair his own car at the company’s workshop.

Following a discussion meeting, the employee was terminated as the company considered him to expose himself, as well as his colleagues and the company to a substantial safety risk. The employee was convinced that the termination was unjustified and brought the case to court.

Hazardous and unacceptable behavior justified termination

When the nature of a position comes with strict safety requirements, the threshold is lower for when a termination is considered justified following a breach of such requirements. Already because the employee could be considered to constitute a substantial safety risk, the termination of him was justified.

In its assessment, the court emphasized that the employee’s behavior constituted both serious and repeated breaches of his obligations towards the company. Although he had caused several near accidents, his behavior had not changed despite the fact that the company had issued warnings, attempted to relocate him and changed his work tasks. As relocations had not been successful, the company had even created a new service position for him. In his new position, the employee had chosen to drive so recklessly around the workplace in a tractor that it had to be kept with a permanent lock on the gear to avoid any accidents. The employee’s co-workers had also expressed that they felt unsafe when working nearby him and described serious co-operation issues and a lack of impulse control.

On this basis, the court also emphasized that the employee had neglected his obligations so seriously that he had breached his obligations under the employment contract, due to his failure to comply with his duty to perform his work and to follow the company’s instructions.

IUNO’s opinion

In situations where employees have had an unacceptable behavior over a longer period of time – even years – it can be difficult to suddenly proceed to termination. The reason is that when the company has not previously sanctioned the behavior, the duration can make it appear as though the company has accepted the employee’s actions. This case illustrates both the importance of warnings and that the severity of the behavior can be decisive.

There is not necessarily a requirement for previous warning for a termination to be justified. However, warnings can document that the employee’s behavior constitutes a recurring problem that is not tolerated. Nevertheless, IUNO recommends that companies carefully consider when formal, written warnings are to be applied. Warnings should only be issued when companies want to correct unwanted behavior or where the employee has breached his or her duties, but the company does not want to proceed to termination. For example, due to undocumented absence or lacking performance.

[The Norwegian Agder Court of Appeals’ judgement LA-2021-58180 of 26 October 2021]

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Anders

Etgen Reitz

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Aurora Braut Bache

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