Appropriate position for dismissed executive officer in the notice period

When dismissing an executive officer, there are limits as to which tasks you may assign to the executive in the notice period. This was established in a Western High Court ruling where a department head of a municipality dismissed due to restructuring was not obligated to perform the tasks assigned to him by the employer in the notice period.

The Court found that an executive officer cannot be assigned to a position in the notice period which does not involve similar management tasks as before the dismissal. The consequence may be that the executive officer must be released from his duty to work if the management does not want the executive officer to continue his tasks in the notice period and if it is not possible to make another arrangement.

The notice of termination was 12 months

A department head with the Municipality of Aabenraa was dismissed when his department was closed down in connection with a general restructuring of the administration. The department head's notice of termination was 12 months. He was not released from his duty to work in the notice period, but was instead offered a position as consultant with the Health and Care Administration.

The department head was not of the opinion that the position was appropriate and he therefore commenced legal proceedings against the municipality claiming salary in the notice period and compensation.

Material change


The Western High Court found that, when assessing whether the position was appropriate, the content of the position was to be specifically assessed compared to his previous position as department head. The position as consultant did not involve any management tasks or budget responsibility as did his former position. The Court found that the position as consultant constituted such a material change of the employment that it could not be considered an appropriate position. The municipality had therefore breached the contract of employment.

However, the Court found in favour of the municipality as the department head had received salary during the entire notice period and consequently, he had suffered no indemnifiable loss. Further, no claim for compensation for injury to the department head's feelings or reputation existed under section 26 of the Liability in Damages Act, even though he had performed tasks in the notice period which he was not obligated to perform.

Comments

The ruling establishes that it is not possible to assign any kind of task to a dismissed executive officer in a notice period. The tasks must be appropriate compared to the previous position.

Consequently, a dismissed executive officer cannot be assigned tasks involving less responsibility than before the dismissal. Instead, the tasks must be similar to the previous tasks, including management tasks. A relevant alternative to consider may therefore be to release the employee from the duty to work.

The content of this Newsletter is not, and should not replace, legal advice.

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