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There are no formal requirements for a resignation submitted by an employee. However, the formal requirements for dismissal initiated by the employer are strict. As a general rule, failure to comply with these requirements will result in the dismissal being declared invalid if the employee brings legal proceedings. It is therefore essential that the formal requirements are observed.
Follow the procedural rules
Before issuing a dismissal, the employer must also ensure compliance with the procedural rules set out in the Working Environment Act. These rules differ for individual dismissals and collective redundancies. The following discussion concerns individual dismissals only.
In temporary employment relationships, no notice of dismissal is required if the employment is to end on the agreed termination date. However, an employee who has been temporarily employed for more than one year is entitled to written notice of termination no later than one month before the employment ends. If such notice is not given, or if the deadline is not met, the employer cannot require the employee to leave the position until one month after the notice has been provided.
Dismissal due to circumstances relating to the employee
There must be objective grounds
Dismissal based on circumstances relating to the employee requires objectively justified grounds. The employer bears the burden of proving that such grounds exist. In practice, a reasonableness assessment is also carried out, taking into account, among other things, the impact the dismissal will have on the employee.
Special protection against dismissal applies in cases involving illness, pregnancy, childbirth, adoption, and military service.
Dismissal due to circumstances relating to the undertaking
Objective grounds are also required
Dismissals based on circumstances relating to the undertaking must likewise be objectively justified. There must therefore be legitimate grounds for the change or elimination of the position. A balancing of interests must be undertaken between the interests of the company and those of the employee. The selection of which employee is to be dismissed must also be based on objective criteria.
The employee must be offered any vacant positions within the undertaking for which he or she is qualified. If the employee is offered suitable alternative employment but declines the offer, this should be documented in writing.
Summary discharge
Summary dismissal is not the same as ordinary dismissal
Summary dismissal differs from ordinary dismissal. A summary dismissal terminates the employment relationship immediately, without any notice period. This requires a material breach of the employment contract. However, a material breach alone is not sufficient. It must also be assessed whether summary dismissal is a reasonable response in the particular circumstances. Relevant factors include the employee’s length of service, social circumstances, and the consequences the summary dismissal may have for the employee beyond the immediate termination of employment.
Suspension
The employment relationship is put on hold
Suspension does not terminate the employment relationship, as dismissal or summary dismissal does. Instead, the employee is required to leave the workplace temporarily while it is investigated whether grounds for summary dismissal exist.
The basic requirements for suspending an employee are: There must be reason to believe that the employee has committed conduct that may justify summary dismissal; and: The needs of the undertaking must require that the employee be removed from the workplace while the matter is being investigated.
It must be assessed continuously whether the conditions for suspension remain satisfied. If they do not, the suspension must be lifted immediately. A suspension lasting more than three months must be justified by the special nature of the circumstances.
The employee retains the right to salary throughout the suspension period.
Procedural rules
Don't forget the consultation meeting
Before a decision is made regarding dismissal, summary dismissal, or suspension, a consultation meeting should normally be held with the employee. No decision should be made until the meeting has taken place and the employer has had sufficient time and opportunity to consider the information that emerged during the discussions.
The consultation meeting shall be conducted with the employee and the employee’s trade union representative, unless the employee does not wish to be accompanied by a representative. The employee has no statutory right to bring another adviser, such as a lawyer, but this should normally be permitted if requested.
During the consultation meeting, the employer should review the basis for any contemplated employment-related sanction and ensure that all relevant facts have been properly considered. The employee must be given an opportunity to clarify any misunderstandings and respond to allegations or points of disagreement.
There is no legal requirement to prepare minutes from the consultation meeting, but doing so is strongly recommended.
Following the meeting, the employer must make a final assessment as to whether the conditions for dismissal or another employment-related sanction are met, taking into account the information that emerged during the discussions. For this reason, a sanction should generally not be imposed on the same day as the consultation meeting.
If the outcome of the consultation meeting is a sanction that the employee disputes, the employee may request a negotiation meeting. Minutes must be prepared from the negotiation meeting and signed by the parties and their representatives. At such meetings, the employee is entitled to be assisted by an adviser, such as a lawyer.
If the parties fail to reach agreement and the employee wishes to pursue the matter further, the employee must comply with the statutory time limits for bringing legal proceedings under the Working Environment Act.
The employment relationship during and after the notice period
As a general rule, the employee has both the right and the obligation to perform his or her ordinary work duties during the notice period. Any changes to the employee’s duties must be assessed on a case-by-case basis.
An employee who disputes the dismissal is, as a general rule, entitled to remain in the position after the expiry of the notice period until the dispute has been resolved.
Special rules for dismissal during the probationary period
The probationary period does not give the employer free rein
The threshold for dismissing an employee for reasons relating to the employee is somewhat lower during the probationary period than after it has expired. In practice, the key issue is often whether inadequate performance is due to a lack of qualifications on the employee’s part or whether it results from insufficient training and supervision by the employer. It is therefore important that employers provide appropriate training and follow-up during the probationary period. Where performance concerns arise, the employer should document in writing that these issues have been raised with the employee.
The parties will often have agreed to a shorter notice period during the probationary period, and the employee generally does not have the right to remain in the position during a dispute.
A shorter notice period also applies during the probationary period where the dismissal is due to circumstances relating to the undertaking.
Severance agreements as an alternative to dismissal or summary dismissal
Voluntary termination of employment
Where both parties—the employer and the employee—agree that the employment relationship should end, the circumstances may be suitable for entering into a severance agreement. A severance agreement is an agreement between the employer and the employee whereby the employee, usually in exchange for some form of severance compensation, agrees to terminate the employment relationship.
Severance agreements may arise from different circumstances and may contain varying terms, but they are frequently used as an alternative to dismissal or summary dismissal.
The purpose of such agreements is generally to provide certainty and predictability for both parties, reduce the disadvantages associated with a dismissal, and avoid future disputes. Consequently, severance agreements often include a clause stating that all matters relating to the employment relationship and its termination have been fully and finally settled. This prevents the employee from later bringing legal claims or other proceedings. It is important, however, to ensure that the employee is given sufficient time to consider the agreement and, if desired, seek advice from a legal or other professional adviser. Otherwise, there is a risk of a subsequent dispute regarding whether the employee is legally bound by the agreement.
