The importance of improper termination

After a decline in work, a craftsman in a construction company was asked to perform an asbestos decontamination job. Decontamination had not been part of the company’s services originally. However, a decline in finances and activities after the pandemic made an expansion of services necessary.

Despite having participated in a course on asbestos decontamination and having no other work tasks, the employee declined to take the job. After being temporarily laid off, the employee was called to a discussion meeting. During the meeting, the company failed to document the selection process and ask if there were any social considerations to take into account. When asked if he still would decline asbestos decontamination jobs, the employee gave no direct answer.

The employee was terminated because there were no other work tasks available. The notice of termination did not satisfy the formal requirements as it did not mention the employee’s preferential rights. Because of the faults in the process, the employee claimed the termination was invalid.

The effect can affect the outcome

The court concluded that the company’s breach of the formal requirements did not invalidate the termination. This was because the breach had no real effect. However, the employee was entitled to compensation for the breach. The termination was also justified because the company had no work to offer the employee.  

The lack of information on the employee’s preferential rights in the notice breached the formal requirements. However, as the company had not hired anyone new since the termination, the breach had no effect.

The employee was selected and made redundant, as all other employees had longer seniority and worked within areas the employee was not qualified to perform. As the company was already aware of the employee’s debt and parental responsibilities, it had no effect that the company did not ask about the employee’s social considerations.

The termination itself was justified. There was no doubt that the company’s financial situation was severe, and that the expansion of services was necessary. When the employee would not give a clear answer on whether he would perform the only work tasks available, the company had no other choice than termination.

IUNO’s opinion

Failure to satisfy the formal requirements of the notice of termination will as a main rule lead to an invalid termination. IUNO recommends that companies carefully follow the required termination process and meet the formal requirements of the notice. The only exception is where an invalid termination must be considered unreasonable. As this case illustrates, an invalid termination can be unreasonable when the breach has no actual effect.

Taking the time to hold a discussion meeting, presenting the necessary documentation, and asking the right questions can save companies from expensive and time-consuming lawsuits. Companies can also avoid that terminations are invalid by staying updated on the formal requirements and carefully reading through the notice of termination.

[The Hålogaland Court of Appeal’s judgement of 29 April 2023 in case LH-2022-174299]