Articles Oct 20, 2023 3 minutes

Summarily dismissal and dismissal due to violation of instructions

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When summarily dismissing or dismissing an employee for a breach of instructions, it is important to ensure that clear instructions have indeed been provided. Otherwise, things can go terribly wrong!

Instructions from the employer may address various issues and serve various purposes. Further, instructions may be given orally or in writing, and they may be either general (apply for all employees) or specific (apply for individual employees or groups of employees). All employers issue instructions in one form or another.

In many disputes regarding the validity of a summarily dismissal / dismissal based on circumstances relating to the employee, a violation of instructions is a more or less central part of the employer’s justification for the summarily dismissal / dismissal. This is not surprising, as the employee’s breach of duties constitute a crucial element in nearly all cases of summarily dismissal as well as in many dismissal cases based on circumstances relating to the employee. A breach of duty is a violation of a rule or norm of conduct, and this rule or norm must necessarily have a basis. Instructions from the employer may serve as such a basis.

However, not all rules or norms of conduct must follow from instructions. Some rules and norms follow from the law (e.g., you should neither steal nor stab someone with a knife), while other rules/norms are derived more or less directly from the contractual relationship/employment (e.g., you have a duty of loyalty to your employer), and others are derived from more general societal norms and rules (e.g., you should display common courtesy towards your colleagues and others). In other words, employers are not required to document all rules and norms of conduct in employment contracts, employee handbooks, ‘code of conduct’, etc.. For instance, an employer can summarily dismiss an employee who has stabbed a colleague, even if there is no written instruction stating that employees cannot stab each other with knives.

Summarily dismissal / dismissals based on breaches of instructions raise several issues and challenges that employers should be aware of.

One aspect is related to evidence: if a summarily dismissal / dismissal is based on a breach of instructions, the employer must be able to prove that a (sufficiently clear) instruction was provided. Surprisingly, in many cases brought before the court, employers fail to do so. This can happen either because the instruction was not provided in writing (and therefore cannot be documented), because the instruction was unclear, or because the employer did not consistently enforce the instruction. Another aspect (or variation) involves the requirements that the court imposes on employers to explicitly specify the conduct norms they expect employees to follow. This raises questions like whether it is self-evident, for example, that an employee must arrive on time according to the posted schedules or should this also be included in a written instruction?

| “These decisions show that many employers do not take instructions seriously enough in terms of both their formulation and enforcement.”

In recent times, there have been several rulings from the Norwegian district courts regarding the validity of summarily dismissals / dismissals where the central issues have revolved around whether the employee violated the employer’s instructions. In most of these cases, employers have lost because they were unable to prove either the existence of a sufficiently clear instruction or that the instruction was violated. In many of these cases, it also seems as if the employer did not adequately assess whether they could prove the alleged breach of such instructions. Examples of such court decisions include TMOR-2022-44317 (instructions on timekeeping, payment for services rendered to employees, and invoice/price quote preparation), TROG-2022-12851 (instructions/procedures for employee purchases), and TSRO-2022-18890 (instructions on punctual attendance, shift changes, and closing routines).

We should be cautious in drawing trends from snapshots of decisions from the district courts. Nevertheless, these decisions show that many employers do not take instructions seriously enough in terms of both their formulation and enforcement, and that many employers (and advisors) do not make adequate assessments of whether the employer can actually prove that the actions or omissions allegedly justifying the summarily dismissal / dismissal constitute a breach of an instruction. In many cases, the employer themselves may not have a clear understanding of what the instruction entails, and this is never a good starting point when these matters must be explained before the court!