Denmark: Sound Evidence Needed to Support Termination With Cause, Court Rules

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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 The June 13 unpublished ruling (B-1841-16) upheld a Dec. 9, 2016, Viborg City Court decision that had been appealed by the employer.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.

Three Strikes

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

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 correspondents@bna.com

To contact the editor responsible for this story: Rick Vollmar at rvollmar@bna.com

For More Information

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 Danish

here.

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