Requirements for dismissal due to inadequate work performance

In Norway, dismissing an employee due to poor work performance can be particularly challenging for employers. The Norwegian Working Environment Act sets high standards for justification, and the process requires thorough documentation and correct case management. In this blog, we take a closer look at when and how employers should proceed with dismissal due to poor employee performance.

The requirement of objectivity in dismissal due to inadequate work performance

Section 15-7 of the Working Environment Act states that " Employees may not be dismissed unless this is objectively justified based on circumstances relating to the undertaking, the employer or the employee ". This requirement protects employees against unfair dismissals and sets a high threshold for when a dismissal can be conducted.

For a dismissal to be considered justified due to poor work performance, the work performance must be significantly below what can be expected. However, this is different from the requirement of "material breach" that applies to summary dismissal. Case law shows that inadequate work performance can provide grounds for dismissal when the work performance is clearly below what can be expected. It is not necessary for the deficiencies to be so serious that they constitute material breach of contract.

This assessment must be made specifically based on several factors: employment contract, job instructions, industry requirements, type of work tasks and job level. For example, there are stricter requirements for a manager than for an ordinary employee.

Also read: When terminating an employee becomes necessary

Documentation requirements: The employer has the burden of proof

The employer is responsible for proving that the dismissal is based on an objective reason. This involves extensive documentation requirements. Among other things, the employer must be able to document that:

• The employee has not performed the job in a satisfactory manner
• Thorough follow-up and guidance have been provided
• The deficiencies are so serious that they can provide just cause for dismissal
• The process leading up to dismissal has been sound

Examples of failures that can be documented include carelessness, persistent late attendance, exceeding deadlines, incorrect prioritization of work tasks, failure to achieve performance targets and failure to conduct assigned work tasks. A lack of ability and willingness to co-operate may also be relevant, as this often affects productivity.

The law does not require the employee to have acted willfully - it is performance, not fault, which is assessed. An employee can therefore be dismissed even if they do the best they can if their performance still falls short.
Before a dismissal can be conducted, you must first have done your part to help and facilitate so that your employee has a real chance to succeed in the job. Here we look at what this means in practice.

Also read: What are the required employment termination documents?

This is how you should proceed if an employee is not performing as expected

1. Organization and training: Before a dismissal is considered, the employer must ensure that adequate training and facilitation is provided. This includes making the necessary equipment and premises available, as well as providing training adapted to the employee's age and experience.
2. Ongoing follow-up and documentation: Poor work performance must be documented over time with regular documentation. The employer should provide clear feedback and guidance, and this should be documented in writing. Regularly documenting performance helps to ensure that the basis for any dismissal is verifiable.
   For example, all employees should have regular appraisal meetings with their manager to ensure that what is expected of the individual in terms of performance is being achieved.
3. Warning: Although a warning is not a statutory prerequisite for dismissal, it can have great evidential value. The warning should be given in writing and provide a clear signal of necessary improvements. The employee must be given reasonable time to improve after the warning has been given.
4. Consultation meeting: The employer has a duty, as far as possible, to discuss the dismissal with the employee and employee representatives before a decision is made. The rule is intended to maintain the right of defense, so that both parties can express their opinion on any dismissal. The decision on dismissal cannot be made before the discussion meeting has been held.
5. Reasonableness assessment: An overall assessment must be made in which the employer's need for dismissal is weighed against the disadvantages for the employee. Factors such as the employee's age and social circumstances may be considered. These are often factors that emerge in the discussion meeting, and the employer is required to assess whether the disadvantages to the employee indicate that dismissal should not be given.

In addition, the basis on which the dismissal is based must exist at the time the dismissal is given. The Supreme Court has ruled that the norm in the Working Environment Act sets requirements for the case processing and assessments made by the employer before the decision to dismiss is made. In addition, the court must have a sufficient factual basis to verify the objectivity of the assessments made by the employer.

Important factors for dismissal due to inadequate work performance

Norwegian employment law is strict, and employees enjoy strong protection. If you employ staff in Norway, dismissals based on inadequate performance require careful preparation and proper case handling. You must document both the performance shortcomings and your own follow-up efforts, hold a discussion meeting, and make a balanced assessment of reasonableness. Given the high level of job protection, it is crucial to follow procedures meticulously. Doing so increases the likelihood of a lawful termination and reduces the risk of costly and unnecessary conflict.