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Issuing a written notice is one of the means an employer has available to them if they wish to correct an employee’s unwanted/unregulated behavior.
A notice also acts as a signal from the employer that if the situation about which the employee is being informed doesn’t change or improve, he/she will be in danger of being dismissed. At the same time, a concrete evaluation must always be made as to whether a situation is serious enough to justify issuing a written notice.
Is the reason for issuing a written notice legally regulated?
Neither the Working Environment Act nor other employment laws contain any rules about notices.
However, legal practice in dismissal cases show that if the employee in question has previously been issued a written notice about the same situation and given information about the consequences of non-compliance, this fact will be significant for evaluating its objectivity in accordance with the Working Environment Act section15-7.
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It is also the case that a notice can become significant during an employee selection process when an organization is downsizing and/or there is redundancy. If subjective criteria for this selection such as “suitability”, “ability to cooperate” and the like are utilized, an employee who has gotten a written notice will be in a far worse situation than one whose record is “immaculate”.
In order for the employer to be able to convince a court that the situation may end with a dismissal if the employee continues to deviate from a previously issued corrective indictment, the follow-up documentation in the form of a written notice may be a deciding factor in the case.
When can a company issue a written notice?
It should be noted that a written notice is not an implement to be used the first time an employee doesn’t follow the company’s job performance guidelines or behaves in an undesirable manner at work. On the contrary, the first course of action is usually to have a supervisor give this employee informal verbal guidance either during the workday or speak with him/her at more formal scheduled meetings.
It is only when employees don’t change their behavior after receiving clear corrections have been given that there will be reason to issue a written notice to them. Examples of when a notice should be issued to an employee include: violation of safety procedures, violation of employee’s duty of loyalty, non-compliance with working hours, etc.
What are the processing requirements in a written notice case?
Notice issuance is not regulated by law, and requirements for a written notice have not been clarified in legal practice. So there are no formal requirements as to what might cause a notice to be issued or what a written notice must include.
However, for the sake of contradiction, the following points should appear in a notice:
- A description of the situation on which the notice is based
- A description of how the employer expects the employee to behave in the future
- The consequences if the situation on which the notice is based repeats itself (f. ex. that this may have consequences for the employment relationship)
There is no formal requirement stating that it is the organization’s chief executive that has to issue the warning, nor is there any requirement regarding the ensuing case process (that the company board must review the case, etc.).
At the same time, the question may be raised as to whether or not the employer should have discussions with the employee before issuing any written notice. In the ruling from the Borgarting Court of Appeals in 2006 (LB-2005-30042), the court takes up this same question, stating:
"It could have been appropriate that the meeting that had been urged by the director, when A himself could determine the meeting time and bring a union representative to it, had been held before such a strong reaction as a notice implying dismissal was issued."
Must an employee accept a written notice?
"A notice is issued as a result of an employer practicing their right to exert authority. This practice presupposes a requirement for objective reasons, meaning that the notice must be based on correct facts, must cover a reasonable need and must not represent a disproportionate or unreasonable reaction to the recipient."
The employer normally requires the employee to sign off on having received the written notice, which is routine practice. However, the employee is not obligated to accept the notice’s contents.
An employee who has received a notice that he/she feels is unjustified must consider taking up the case with their employer in order to get them to rescind or moderate it. The employee can confirm having received the notice and make a note on it that the basis for the notice is being disputed, giving a brief explanation of the reasons for this dispute.
An employee can essentially not go to court and demand a ruling declaring that a notice must be rescinded. This is because a notice normally has no legal power in and of itself, even if it subsequently may be given significance. Yet cases concerning a notice’s injustice may be allowed to be presented to the courts.
If this happens, a central condition will be that the notice must be regarded as having a great deal of significance for the working relationship as a limitation for the employee, by for example hindering his/her opportunities for career growth within the organization.
In the public sector an employee can appeal a written notice to the Civil Ombud, who then evaluates the written notice to decide if it is justified. If the Ombud finds that the written notice was not justified, they may ask the employer to re-evaluate the case.
The usual outcome in these cases is that the employer rescinds the written notice. Several of these cases concern written notices issued after the employee’s statements in e-mails to other employees or in newspaper ads, as well as in cases where the ombud has in their conclusion emphasized the consideration of the employee’s freedom of speech, duty of loyalty and contradiction.
What happens after a written notice is issued?
When a written notice is issued, the employer will most likely monitor the employee in accordance with what appears in the notice. If the employer fails to do this, allowing new points about which the employee has previously received a notice to pass by unheeded, the previous notice will lose its merit.
While a former written notice may be brought forth at a later time, its significance depends on how far back in time it was issued. The ruling from the Labour Court in 2012 (ARD-2012-4) addresses this question directly, stating:
"In our point of view, when the company chose to issue a notice to the employee, it had made a choice about how it would react in this situation; therefore, once this notice was issued, the relationship was in principle over and the matter settled.
If in retrospect new untenable circumstances arise, previous notices will be allowed and considered central to any assessment about whether there is a basis for rightful termination or dismissal. At the same time, not every subsequent untenable circumstance or every instance of being passed over for a promotion provide a basis for reviving previous notices and forming a basis for ending an employment relationship."