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Violation of the duty of loyalty was valid ground for summary dismissal

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calendar 26 April 2020
globus Norway

In connection with an ongoing conflict between two dentists in an office community, a dental assistant was terminated without notice after having facilitated the sharing of her employer’s personal notes and thoughts about the conflict to the opposing party. The Court of Appeals found the summarized dismissal to be rightful.

Two dentists in a shared office community each had a sole proprietorship and their own dentist assistant. In relation to a conflict between the dentists, the dentist assistant’s employer had written a personal note with serious accusations against the opposing party. The note was placed in a closed file, and the dentist assistant shared the note with the opposing party’s assistant. The opposing party’s assistant made a copy of the note, which was shared with her employer. This deteriorated the conflict significantly, and the dental assistant was terminated without notice. The dental assistant felt that both a termination with or without notice was ungrounded.

The dentist argued that the dental assistant had showed gross misconduct due to her disloyalty. When confronted with the incident, the dental assistant lied about her part. The dental assistant’s actions made it impossible for the dentist to trust her in the future. The dental assistant argued that the opposing party had not been informed of anything that the dentist had not already said or would say at a later time. Further she argued that she had a certain duty with regards to the opposing party’s dental assistant.

The main question for the Court of Appeals was therefore whether the summarized dismissal was validly grounded.

Disloyalty was a gross misconduct of the contract of employment

The Court of Appeals found that the dental assistant’s actions were a prerequisite for the copy being shared with the opposing party. The court further found it irrelevant whether parts of the note had been shared with the opposing party previously or would be so at a later time. As this was a personal note, it was for the dentist to decide what, how and when it’s content potentially would be shared.

The fact that the dentist on occasions of previous breaches of trust had gone out of her way to help the dental assistant both economically and otherwise was added weight. Several performance appraisals with this as a subject had been held, and the dental assistant had been given a written warning. After sharing the personal note, the dental assistant was given the opportunity to explain and a discussion meeting was held, in where both parties agreed that the employment could not be continued. The parties did however not reach any further agreement.

The court found it reasonable to assume that the dental assistant knew that the note would be shared and the consequences this would entail. When the court found that the dental assistant had acted disloyally in a matter that was to be considered a gross misconduct of the contract of employment, it was further put weight on the fact that on her duty of loyalty to safeguard the dentist’s interests, that her actions had actively opposed the dentist’s interests and the fact that the dentist was dependant on a relation of trust with the dental assistant as she was her only employee in a small office community.

Based on an overall assessment, the Court of Appeals concluded that the summarized dismissal was valid.

IUNO's opinion

Terminations without notice is a drastic measure, why strict conditions are required. The judgement illustrates that the relation of trust between employer and employee is a significant prerequisite within the employment relationship, and that disloyalty is a breach of the contract of employment. At the same time, the court adds weight to the circumstances prior to the summarized dismissal and the following procedural actions.

IUNO therefore recommends that companies, despite a breach of trust, look at the employment as a whole, consider other possible sanctions and comply with the procedural rules prior to any final decision being reached.

[Borgarting Court of Appeals’ verdict of the 9th of March 2020 in case LB-2019-119893]

Two dentists in a shared office community each had a sole proprietorship and their own dentist assistant. In relation to a conflict between the dentists, the dentist assistant’s employer had written a personal note with serious accusations against the opposing party. The note was placed in a closed file, and the dentist assistant shared the note with the opposing party’s assistant. The opposing party’s assistant made a copy of the note, which was shared with her employer. This deteriorated the conflict significantly, and the dental assistant was terminated without notice. The dental assistant felt that both a termination with or without notice was ungrounded.

The dentist argued that the dental assistant had showed gross misconduct due to her disloyalty. When confronted with the incident, the dental assistant lied about her part. The dental assistant’s actions made it impossible for the dentist to trust her in the future. The dental assistant argued that the opposing party had not been informed of anything that the dentist had not already said or would say at a later time. Further she argued that she had a certain duty with regards to the opposing party’s dental assistant.

The main question for the Court of Appeals was therefore whether the summarized dismissal was validly grounded.

Disloyalty was a gross misconduct of the contract of employment

The Court of Appeals found that the dental assistant’s actions were a prerequisite for the copy being shared with the opposing party. The court further found it irrelevant whether parts of the note had been shared with the opposing party previously or would be so at a later time. As this was a personal note, it was for the dentist to decide what, how and when it’s content potentially would be shared.

The fact that the dentist on occasions of previous breaches of trust had gone out of her way to help the dental assistant both economically and otherwise was added weight. Several performance appraisals with this as a subject had been held, and the dental assistant had been given a written warning. After sharing the personal note, the dental assistant was given the opportunity to explain and a discussion meeting was held, in where both parties agreed that the employment could not be continued. The parties did however not reach any further agreement.

The court found it reasonable to assume that the dental assistant knew that the note would be shared and the consequences this would entail. When the court found that the dental assistant had acted disloyally in a matter that was to be considered a gross misconduct of the contract of employment, it was further put weight on the fact that on her duty of loyalty to safeguard the dentist’s interests, that her actions had actively opposed the dentist’s interests and the fact that the dentist was dependant on a relation of trust with the dental assistant as she was her only employee in a small office community.

Based on an overall assessment, the Court of Appeals concluded that the summarized dismissal was valid.

IUNO's opinion

Terminations without notice is a drastic measure, why strict conditions are required. The judgement illustrates that the relation of trust between employer and employee is a significant prerequisite within the employment relationship, and that disloyalty is a breach of the contract of employment. At the same time, the court adds weight to the circumstances prior to the summarized dismissal and the following procedural actions.

IUNO therefore recommends that companies, despite a breach of trust, look at the employment as a whole, consider other possible sanctions and comply with the procedural rules prior to any final decision being reached.

[Borgarting Court of Appeals’ verdict of the 9th of March 2020 in case LB-2019-119893]

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Anders

Etgen Reitz

Partner

Sofie

Aurora Braut Bache

Associate

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