Advice and Tips
Dismissal: What are your legal rights if it happens to you?
Most people consider losing their job to be a dramatic life event. Below you’ll find useful information about the rights, processes and contracts associated with dismissal.
An employment relationship usually ends when an employee either resigns their position or is dismissed. An employer must have a justifiable reason for dismissing an employee; they must also follow proper procedure when giving this employee a dismissal notice.
When someone loses their job, it can have dramatic consequences for their life; this is why it’s important that people know their rights if they end up in this situation. Most of the laws on employment termination in the private sector may be found in The Working Environment Act, while employment termination laws in the public sector are regulated by The Civil Service Act (the laws in both sectors are quite similar to one another).
Below you’ll find descriptions of laws found only in The Working Environment Act. You can get more information about The Civil Service Act’s laws by contacting Tekna’s Legal Department.
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Employee rights upon dismissal
The employer must have a meeting with the employee before giving them a dismissal notice. The employee’s entitled to bring along a company union representative to this meeting (Tekna recommends doing so). During the meeting, the employee must be given the opportunity to express their viewpoint before any decision about dismissal is made.
A dismissal notice must be given in writing, and it must be either delivered personally or sent by registered mail to the employee. There are several formal requirements connected to this notice; it must contain information about the employee’s right to demand negotiations about the termination as well as any deadlines they must consider if taking legal action.
Employment dismissal based on an organization’s financial situation
This form of dismissal is usually caused by a situation where there’s a need for downsizing. There must be a justified reason for choosing only certain employees for termination. An employee assessment’s usually based on the following criteria: competency/job performance, seniority and social factors. The employer is obligated to offer the employee other suitable work if this work exists and if the employee is qualified to perform this work.
A terminated employee also has a preferential right to be given a new job in the same organization for one year after their dismissal date; however, the employee must be qualified for this job.
Dismissal based on employee performance
This is when an employee’s dismissed because they’ve failed to perform a duty/duties connected with their job. Examples of this include poor/disloyal conduct or lack of cooperation. An important point to take into consideration here is whether or not the employer has given the employee a chance to correct their behavior.
Other forms of dismissal
In cases where terms of the employment contract have been seriously breached, termination may be necessary. This means in practice that an employer ends the employment relationship immediately. If this happens, the same rights with regard to negotiations and appeals apply (see point 8).
Sometimes an employer terminates an employment contract before an employee has even started working at their company. If this happens, the employer is still bound by the terms of the employment contract. See separate article about employment termination before taking up a position.
An employee’s entitled to a standard dismissal and has the right to receive their wages during the notice period in accordance with their employment contract.
If there is a pre-agreed trial period, during this time an employee has a shorter notice period (often 14 days) than normal in addition to somewhat less protection from being dismissed. A trial period can last a maximum of six months.
If an employer dismisses an employee from one position and at the same time offers them a different position, this is called an amendment termination. This form of dismissal follows the standard rules for termination; a company must have valid grounds for taking this action.
Protection from dismissal due to illness or parental leave
An employee can’t be dismissed during the first 12 months of illness. After this time, illness may be used as grounds for dismissal. An employer is not allowed to dismiss a woman because she’s pregnant. This law also applies to employees who are out on parental leave.
A one-month notice period is common if nothing else has been agreed in the employment contract or collective bargaining agreement; however, many Tekna members have a three-month notice period. The notice period is extended in cases of advanced age and continuous employment.
Negotiations and legal actions
Any employee who has been dismissed is entitled to demand negotiations. The deadline for doing so is two weeks after receiving a dismissal notice. Legal action must be taken within eight weeks after these negotiations are over. An employee is entitled to continue working while their dismissal case is going through the court system. This doesn’t apply in cases involving resignation, or if a notice of dismissal is given during a trial period.
A severance agreement is when an employee voluntarily resigns their position in exchange for compensation. This agreement is often used as an alternative to dismissal and implies that by signing this agreement, the employee has given up the right to file a lawsuit. Tekna recommends that members send a draft of their employment contract to the Legal Department for quality assurance before signing it.