The global solution for human resource professionals, combines custom research, strategic white papers, country primers, webinars and OnDemand educational programs, and the expert guidance...
By Marcus Hoy
Denmark's Western High Court ruled that an employer could not dismiss a worker for gross misconduct because the evidence supporting the dismissal was ambiguous. The June 13 unpublished ruling (B-1841-16) upheld a Dec. 9, 2016, Viborg City Court decision that had been appealed by the employer.
Attorney Soren Skjerbek of the Norrbom Vinding legal firm told Bloomberg BNA Aug. 10 that the decision illustrates the importance of adequate proof in termintion-of-employment situations and would clarify when dismissals can be legally made in similar circumstances.
The employee, a sales representative, had already resigned his position and was working out his notice period when the dismissal occurred. The company gave three reasons for the dismissal: the employee had failed to attend a meeting with his manager, failed to attend a sales meeting with a client, and taken goods from the company for his private use. Taken together, the employer claimed, these breaches were serious enough to justify a dismissal for gross misconduct. The employee sued the company to reclaim the salary he would have been entitled to during the notice period.
After considering the evidence, the court ruled that none of the reasons given by the employer was sufficient to prove gross misconduct. The company had not offered adequate evidence that the employee had deliberately missed the scheduled client meeting or the meeting with the manager, according to the decision, and the court accepted the employee's claim that he regularly purchased goods from the company at wholesale prices without negative consequences and had intended to pay for the goods in question.
No legal definition of gross misconduct exists, but legal practice has identified a number of offenses that would normally be deemed serious enough to trigger a dismissal, Skjerbek told Bloomberg BNA. These include unauthorized absences from work, serious incompetence, theft from the workplace, conflicts of interests, and the use of alcohol or drugs during work hours.
“Is is clear that this case was decided on the basis of the evidence submitted to the court,” Skjerbek said. “However, this does not change the fact that an unauthorized absence or dishonesty would, in principle, constitute gross misconduct.”
“This verdict shows that employers must ensure that evidence of gross negligence is in place before a dismissal can occur,” Skjerbek added. “However, the concept of gross negligence is a dynamic term with no defined meaning. Whether an offence will be defined as such depends on the specific employment relationship, the employee's situation, and the prevailing social norms.”
“If the employee has previously been issued with a warning for an offense and told that a repetition would trigger dismissal, then a subsequent dismissal would likely be justified,” he said. “Similarly, a dismissal would be justified if an employee carries out actions that the employer has clearly stated will not be tolerated.”
To contact the reporter on this story: Marcus Hoy in Copenhagen at email@example.com
To contact the editor responsible for this story: Rick Vollmar at firstname.lastname@example.org
For more information on Danish HR law and regulation, see the Denmark primer.
A statement on the ruling by Norrbom Vinding is available in Danish here.
Ruling B-1841-16 is available in Danishhere.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)