Happily never after

Oslo Municipality terminated a health worker due to a lack of skills. The employee had been with the company as an unskilled worker for 11 years before he was offered the opportunity to take a skilled labour certificate.

Shortly afterwards, the company received several complaints about the employee from users and colleagues. The complaints included that the employee did not handle washing and stoma care for users, lacked knowledge of diabetes medication and did not understand when a user's condition was so serious that more qualified health care had to be called in. It was also pointed out that he did not fill in reports as he was supposed to, which could lead to serious conditions going unnoticed.

The company implemented several measures. It conducted a comprehensive survey of the employee's skills. He also underwent a five-month training programme and worked shifts with other colleagues. Despite this, his performance made it necessary to notify the Norwegian Board of Health Supervision. After an assessment, the Board decided to revoke the employee's authorisation, and the company terminated his employment.

No reasonable doubt

The Norwegian Supreme Court concluded that the termination was justified. The employee's performance was significantly lower than average, and the company had made reasonable enquiries for other suitable work without success.

The employee's social circumstances and high seniority required the company to investigate other suitable work before termination. Given his loss of authorisation and advanced age, he would have difficulty finding new work. However, the company had fulfilled this duty by contacting the restructuring manager in general and specifically investigating options in the employee's neighbourhood. No other suitable work was available.

IUNO’s opinion

Before employees are terminated due to the company's circumstances, companies have a duty to investigate other suitable work. The court's judgement is significant because it also establishes such a duty when employees are terminated due to the employee's circumstances. However, this duty is only linked to the balancing of interests between the parties and is limited and situational. The court also emphasised that companies are not required to create new positions. The company’s duty can only exist if:

• The termination reason is not serious enough to exclude other positions
• The employee has a particular need to continue working
• The company has other suitable work to offer

IUNO recommends that companies generally assess whether other alternatives can be applied, before reaching a final decision on terminating an employee.

[The Norwegian Supreme Court’s decision of 26 June 2024 in case HR-2024-1188-A]