Apr 8, 2025
Employee's Right to Terminate the Employment Contract – Conditions, Legal Effects, and Burden of Proof
While the employer's right of dismissal is expressly regulated in the Working Environment Act § 15-14, the employee's right to terminate the employment contract is not legislated in the Working Environment Act. Instead, this right follows from general contractual principles. The employee's right of termination implies that the employee can immediately resign from the position if the employer significantly breaches their duties in the employment relationship, and at the same time make a claim for compensation for financial loss.
Legal basis for the employee's right of termination
The employee's right of termination is based on general contractual rules regarding termination, which also apply to employment contracts. The right is not explicitly regulated in the Working Environment Act, but is supported by case law, particularly from the fundamental ruling in Rt. 1997 p. 1506 (Stryn Pharmacy).
However, for certain professions, there are statutory provisions that regulate the right of termination:
The Education Act § 4-6 (3) provides legal basis for a trainee contract to be terminated if the training establishment significantly breaches its duties
The Maritime Labor Act § 9-5 regulates a seaman's right to resign in certain cases, without necessarily ending the employment contract
Conditions for employee termination
For an employee to terminate the employment contract, there must be a significant breach by the employer. The requirement of significance implies that there must be serious violations of the employer's obligations.
Typical examples of conditions that may constitute significant breach include:
Lack of salary payment
Repeated or seriously delayed payment
Incorrect calculation of salary over time
Harassment of the employee
Bullying or harassment from management
Lack of intervention in cases of colleague harassment
Violation of safety regulations
Failure to ensure safe working conditions
Lack of training or protective equipment in high-risk positions
Serious breaches of labor protection legislation
Violation of working time regulations
Lack of compliance with health and safety regulations
Psychosocial work environment problems
Severe cooperation problems that the employer does not address
Persistent bullying or harassment that the employer does not intervene against
The threshold for termination - Stryn Pharmacy ruling
The Supreme Court in Rt. 1997 p. 1506 (Stryn Pharmacy) provided crucial clarifications regarding the threshold for the employee's right of termination. The case concerned three pharmacy employees who did not return to work after sick leave due to prolonged cooperation problems with the employer.
The Supreme Court established the following key principles:
Basic requirements for the work environment are part of the rights and obligations in an employment relationship
There is a distinction between:
Physical working conditions (facilities and circumstances)
Psychosocial conditions (conflicts arising from communication and cooperation)
When it comes to psychosocial work environment problems, a lot is required before it can be considered a significant breach justifying termination
The ruling illustrates that the threshold for termination is high, especially regarding conflicts and cooperation problems. Nevertheless, the Supreme Court concluded in this case that the employer had significantly breached the employment contract, particularly due to the employer not fulfilling its "special duty" to improve conditions after the problems were identified through an inspection by the Health Directorate.
Factors for assessing significant breach
When assessing whether an employer's breach is significant, several factors must be considered:
Nature and severity of the breach
The more serious the breach of the employer's obligations, the easier the requirement of significance will be met
Duration of the breach
Prolonged breach will more readily be considered significant than isolated incidents
Employer's knowledge and actions
Whether the employer has been made aware of the problems
What measures the employer has implemented to rectify the conditions
Subjective conditions of the employer
Whether the breach was intentional or negligent
Whether the employer has attempted to conceal or downplay the problems
Consequences for the employee
What consequences the breach has had on the employee's health, safety, or welfare
Consequences of termination
When an employee terminates the employment contract due to the employer's significant breach, the following legal effects occur:
Immediate termination
The employee can leave the position without notice period
The employment relationship ends with immediate effect
Claims for compensation
The employee can claim compensation for financial loss
This may include lost wages during the period of finding new employment
Possible expenses related to job-seeking or retraining
Any loss of pension rights or other benefits
No waiting period for unemployment benefits
Unlike voluntary resignation, the employee will normally not face a waiting period for unemployment benefits from NAV
Practical considerations and burden of proof
It is important that an employee considering terminating the employment contract documents the breach and their communication with the employer. This can be crucial in any later dispute over whether the right of termination was justified.
The employee should usually make the employer aware of the breach and give the employer the opportunity to rectify the conditions before termination becomes relevant. This can strengthen the employee's position if the case is later brought to court.
In practice, it will be the employee who must prove that there was a significant breach by the employer that justified terminating the employment contract. This underscores the importance of good documentation.
The difference between employee termination and voluntary resignation
It is important to distinguish between the employee's termination of the employment contract and a regular voluntary resignation:
Employee termination | Voluntary resignation |
---|---|
Based on the employer's significant breach | Independent of the employer's actions |
Immediate termination | Notice period must be observed |
Possibility of compensation | Normally no right to compensation |
Normally no waiting period for unemployment benefits | May result in a waiting period for unemployment benefits |
Conclusion
The employee's right to terminate the employment contract is an important safety valve in cases where the employer significantly breaches their obligations. However, the threshold for termination is high, and the employee should be cautious in asserting this right without clear violations of the employer's duties. Good documentation and attempts to resolve the problems through dialogue with the employer will be important both for assessing whether the conditions for termination are met and for standing stronger in any future dispute.