Dismissal during probationary period declared invalid

In a recent judgment, the Supreme Court held that the dismissal of a waiter during his probationary period was invalid. The dismissal was based on alleged lack of reliability arising from misleading information provided by the employee when applying for the position.

The employee obtained a job as a waiter at a high-end restaurant in Oslo without disclosing that he had shortly beforehand been summarily dismissed from a similar restaurant due to cooperation issues and allegations of threats and related conduct. That summary dismissal was later declared invalid in a final and binding judgment by the Oslo District Court.

The Supreme Court emphasized that a job applicant may not provide directly misleading information about himself or his previous employment relationships. At the same time, an applicant is entitled to highlight information that reflects positively on his qualifications and background. Whether there is a duty to disclose information depends primarily on whether the information concerns professional qualifications and work experience that are directly relevant to the applicant’s suitability for the position.

According to the Supreme Court, where an applicant has withheld information that he must have understood to be material to the employer, and where the omission, viewed in its overall context, must be regarded as clearly disloyal conduct, the omission may justify dismissal on grounds of lack of reliability. The assessment must be based on the contractual duty of loyalty owed by both the employer and the job applicant. However, it must also take into account the fundamental principle that employees should be given a second chance and that applicants are primarily required to disclose matters that are directly relevant to their professional qualifications.

The judgment provides guidance on the scope of a job applicant’s duty to disclose information and on the circumstances in which an employee may be dismissed during a probationary period due to omissions or non-disclosure in the recruitment process.

Source: Supreme Court