18 April 2013

Withdrawal of termination

An employee was able to withdraw her own termination after having received the employer's termination as the Supreme Court found that the termination had not been decisive for the employer's actions.

In a recent ruling, the Supreme Court accepted that an employee could withdraw her termination after it was communicated to the employer. 

Facts

The employee was employed with Vejlefjord-Fonden as a psychologist. After a meeting with her superior, during which she was given a written warning and deprived of the possibility to work at home, she felt unwanted at work. She therefore decided to end the employment and sent a termination letter on 28 August 2008. The same day, the employer sent a termination letter, and the termination letters therefore crossed in the post. After having received the employer's termination, she withdrew her own termination. She hoped that the withdrawal would result in a decent dialogue about her work. The withdrawal was not based on the employer's termination giving her a longer notice of termination than one month.

The High Court did not accept the withdrawal

A majority of the High Court judges found that the termination could not be withdrawn as it had already been decisive for the employer's decision as time had been spent on new financial calculations based on the termination. The High Court also found that there was no evidence of a legitimate expectation that the employee could have her job back. The withdrawal was therefore to be considered motivated by the longer notice of termination if she was dismissed by her employer.

Supreme Court grounds and ruling

On the contrary, the Supreme Court found that the employee was covered by the practice widely allowing an employee to withdraw a termination, see the principle of section 39, 2nd sentence of the Contracts Act. Reference may specifically be made to a Supreme Court ruling from 2000, according to which a municipality was not entitled to maintain the termination of a public servant when he withdrew the termination two days later.

The Supreme Court therefore found that the internal considerations in relation to the termination were not sufficient to establish that the termination had been decisive for Vejlefjord-Fonden. No importance could be attached to the fact that the employee had received the employer's termination letter before her withdrawal.

The Supreme Court therefore affirmed the city court ruling ordering Vejlefjord-Fonden to pay the extra three months' notice.

Comments

In general, employees have a significantly broader scope than employers, which is also reflected in this ruling. In the light of this ruling, it will be exciting to see whether employers will also be granted a similar "right of withdrawal". In a case where an employer dismissed a woman not knowing that she was pregnant, the Supreme Court suggested that also employers could be granted a right of withdrawal, see the Supreme Court ruling of 20 February 2012. The case from 2012 concerned a pregnant social and health care assistant, who was dismissed due to sickness, which subsequently turned out to be pregnancy-related sickness. The Supreme Court found, however, that "the employer's obligation to pay compensation in this situation was conditional on the fact that the employer did not change the decision to dismiss the employee after having become aware of the pregnancy."

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