Statutory protection of wrongful termination
In this article we’ll look further into the employees’ protection as a result of wrongful termination.
The Working Environment Act says:
(1) The employee can’t be terminated unless it’s factual justified in the company’s, the employee’s or the employer’s circumstances.
(2) If the termination is due to a downsizing or rationalisation meassures, it is not factual justified if the employer has another suitable job in the company to offer the employee. When deciding whether a termination has a factual reason in a downsizing or rationalisation meassures, a balance must be accomplished between the company’s needs and the disadvantages the termination inflicts on the individual employee.
(3) A termination that’s due to the employer outsourcing or aiming to outsource the company’s operations on assignment using independent contractors, is not factual unless it is necessary for the sake of the company’s continued operation.
The paragraph provides as stated in the headline, protection against wrongful termination. This is a paragraph that you should know a bit more about. The requirement of factual justification is a legal standard that has developed through case law. This paragraph is relevant when the employer has sent a termination to the employee. However, the paragraph is also relevant where the employer has made a change to the work tasks covered by the employment contract to such an extent that it must include termination of change.
Accordning to case law, the assessment will be discretionary, where a fair balance must be accomplished between the interests of the company and the employee, cf. Rt.2011-1674 section 35. It is therefore the spesific circumstances of the case that must be weighed against each other.
The court may rule this assessment and check whether the termination is based on correct factual information and whether the procedure for proper handling has been followed, cf. Rt.1984-1058 p. 1067
The effects of wrongful termination – employee may claim invalidity, compensation or both
In the event of wrongful termination, the employee can file a claim that the termination is invalid. This means that the employment continues. However, the employee is often not interested in continuing in the position. It may therefore be more practical to claim compensation. Paragraph 15-12 in “arbeidsmiljøloven” regulate the effects of wrongful termination.
How much compensation in the event of wrongful termination?
We get many questions about how much you can claim in compensation in the event of wrongful termination. The short answer is- it depends. § 15-12 (2) in “arbeidsmiljøloven” states that compensation is determined at the amount that the court finds reasonable, taking into account the financial loss, the employer’s and the employee’s cicumstances and the circumstances in general.
In case law emphasis is placed on compensating the loss of income you have had as a result of the wrongful termination. Furthermore, you can get compensation for non-economic loss as a result of the strain you have been subject to.
When calculating the loss of income, the value of other work can be deducted in total or partly. In the district court judgement TVEFO-2018-57417, the employee had gross loss of income of around NOK 425,000 In the same period, she had earned NOK 159,633, net. In this case, a deduction of NOK 75,000 was made In the loss of income so that the total loss of income was 350,000. Holiday pay and interest compensation were also added so that the claim was NOK 400,000.
In, addition, compensation for non-economic loss of NOK 50,000 was awarded for the burden imposed by the wrongful termination.
In summary, you can recive compensation for both loss of income and compensation for non-economic loss. The size of the compensation for non-economic loss is mostly between NOK 10,000 and NOK 100,000, depending on the spesific cicumstances of the individual case.
Is it profitable to hire a lawyer?
In the initial assessment we make of your case, we will make an assessment of your chances of reaching the legal claim. Furthermore, the lawyer will consecutively make assessments of the case, in relation to what pays off for you, Since the employer in many cases ends up covering the lawyer’s cost, it is often profitable to hire a lawyer.
Free lawyer in case of wrongful termination?
In very many cases, either out of court or in court, it ends up that the employer has to cover the lawyer’s costs for the employee. In any case, we would recommend that you have your case assessed by a lawyer so that you can assess what possibility you have to win in court.
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