During the spring, the Labour Court handled a case regarding a so-called constructive dismissal, AD 2023 No. 11. Below is a summary of what constructive dismissal means and what conclusions can be drawn from the case.
An employee's resignation can be considered as a termination from the employer's side under special circumstances. The resignation is then considered a constructive dismissal.
A dismissal is considered constructive if it is caused by the employer acting in violation of good practice in the labor market or otherwise unfairly.
If a dismissal is considered constructive, it can be declared invalid and the employee may receive financial and general damages.
The burden of proof lies with the party claiming constructive dismissal to show that the dismissal was caused by the employer's unfair actions or omissions.
The case AD 2023 No. 11 concerned a permanent store salesperson who resigned. The dispute in the case concerned whether the resignation was caused by the actions of the company's representatives and thus should be considered a constructive dismissal.
The employee argued that among the company's representatives, there had been a derogatory tone about Roma people in the workplace. The employee had Roma origin and had experienced that the representatives of the store had treated her in a demeaning manner.
The employer argued that the company had not had the opportunity to take action because the employee had not made any complaints about the alleged incidents until after the resignation.
The Labour Court found no reason to question the former employee's perception of poor conditions in the workplace. However, the Court considered that the employee's side had not shown that these conditions were the reason for the employee's resignation, nor that the employee had expressed their views to the store management during the employment.
The Labour Court considered that it was not proven that the company had acted unfairly and in violation of law and good practice in the labor market, thus causing the resignation.
The current case from the Labour Court emphasizes the importance of having evidence that misconduct has occurred and that feedback on this has been presented to the employer.
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