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Inability was not enough to summarily dismiss

August 2009 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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Continued poor performance is not enough in itself to justify summarily dismissing an employee already under notice. Particularly not if the poor performance is a result of the employee’s inability to do his job.

It is not all right to summarily dismiss an employee under notice for failing to improve his performance during the notice period. For the employer must assume that the poor performance will continue if it is the result of the employee's inability to do the job.

The High Court so held in a case concerning a sales assistant at a supermarket chain who had had several cash discrepancies. Despite reprimands and warnings, the discrepancies continued and he was given notice of termination. In that connection, he was warned that he would be summarily dismissed in case of major discrepancies in the notice period. And when a discrepancy of DKK 101 was recorded, the employer followed up on the warning.

At the subsequent proceedings, the Court held that the summary dismissal was unjustified, having regard among other things to the considerable risk of further discrepancies which existed at the time of the notice if the sales assistant was not moved to another function because he was most likely incapable of avoiding the cash discrepancies. Although there was no general duty on the part of the employer to move him, the discrepancy of DKK 101 did not - in these circumstances - constitute such gross misconduct as to warrant a summary dismissal. Accordingly, the sales assistant was entitled to compensation amounting to his salary for the remainder of the notice period.

But, unlike the lower court, the Court did not find that he was entitled to compensation for unfair dismissal under s 2 b of the Danish Salaried Employees Act. The employer was entitled to dismiss the employee because of the latest discrepancy.