Both summary dismissal and compensation?

Justified summary dismissal of a salaried employee did not deprive him of the right to compensation for unfair dismissal.

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If an employee is dismissed without reasonable cause on grounds of the employee’s or the company’s circumstances, the employee is entitled to compensation for unfair dismissal. But is the right to compensation forfeited if the employee materially breaches the employment relationship during the notice period? That was the question to be decided by the Western High Court in this case.

The employer dismissed a warehouse manager with approx. 10 years’ seniority after an incident where he had yelled at a warehouse worker, also citing problems of cooperation with a supplier.

During the notice period, the warehouse manager sent three emails to the managing director of the company and his wife, who was a bookkeeper at the company. Among other things, the warehouse manager called them ”cheats”, ”ridiculous” and ”cowards” and said that he would write to one of the company’s customers that the employer was a liar.

This lead to summary dismissal of the warehouse manager – and legal proceedings.

Unfair dismissal, justified summary dismissal
The warehouse manager pointed out, among other things, that he had not previously received a warning or criticism in relation to his collaboration skills. The ”unfortunate remarks” in the emails were to be seen in light of the fact that the warehouse manager felt he was being unfairly treated.

The employer submitted that the warehouse manager had made rude and defamatory remarks even though he had previously received criticism about his language.

The Western High Court stated that the justification of the dismissal had to be assessed in light of the circumstances at the time of dismissal and that the dismissal was not justified as the warehouse manager had not previously received a warning or criticism in relation to the circumstances constituting the basis for the dismissal.

The subsequent emails to the managing director and his wife were, however, sufficiently rude so as to justify the summary dismissal.

With regard to the question of whether the summary dismissal meant that the compensation for unfair dismissal was forfeited, the Court concluded in its majority ruling that it does not follow from the wording or the legislative material to the Salaried Employees Act that a salaried employee's claim to compensation may be forfeited as a result of subsequent circumstances. Accordingly, the warehouse manager was awarded compensation for unfair dismissal.

Norrbom Vinding notes

  • that the judgment shows that employees under notice will not forfeit their right to compensation for unfair dismissal, even if the dismissal is followed by justified summary dismissal; but
  • that there is disagreement in case law on this question, and that there are several high court judgments which come to the opposite result and allow employees to forfeit the right to compensation under section 2 b of the Salaried Employees Act if there has subsequently been a justified summary dismissal on grounds of gross misconduct.

The content of the above is not, and should not be a substitute for legal advice.

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