During the trial period the employee’s lack of suitability for the work, or lack of proficiency or reliability constitute objective justification for ending the employment. Thus, the right to dismiss an employee during the period of trial is somewhat wider than otherwise. In order to apply the provision on dismissal during the trial period, the notice must have been given within the expiry of the agreed trial period.
It may be difficult to assess whether an employee shows lack of suitability for the work, or whether the employee lacks proficiency or reliability. In the following, a short description of the various bases for this is provided:
1) Suitability for the work:
The following are examples of lack of suitability for the work: Inadequate or careless execution of tasks, poor interpersonal skills, lack of independence and initiative, a negative attitude to the work, etc.
The employee must be given a real opportunity to succeed with his/her work, and a condition for this is that the employer gives an introduction to the tasks. As a minimum, the employer must clarify the areas of responsibility and give instructions as to how the tasks are to be carried out. The education and experience of the employee will be of importance with respect to the extent of the training and guidance the employer must provide, and the employer ought to be able to expect a quicker adaptation to the work in positions with high qualification requirements.
If certain aspects of the position are particularly important (for instance that a salesperson is good at providing service to customers), it must be possible to make stricter demands for this part of the work than for other areas.
It will often be difficult to document that the employee is not sufficiently proficient. In any case this must be seen in conjunction with the requirement for follow-up (see below). In general, it can be said that the employer cannot make ideal demands regarding the employee’s execution of his/her work. It must be possible to expect, however, that the work performance is at an average level.
It will be a strength to the employer if he/she has made clear demands regarding the employee’s performance and is able to document that the employee has not been able to comply with these demands.
Examples of lack of reliability may be that the employee repeatedly arrives late for work, that he/she is absent from work without a valid reason or in other ways shows that he/she is not to be trusted.
Before a decision of dismissal due to lack of suitability for the work, or lack of proficiency or reliability is made, the employer must be able to document that the employee has received adequate training and feedback during the period of trial.
a) The employee should be followed-up closely and regular follow-up meetings should be held.
b) If necessary, additional training should be given. In any case, a progress and follow-up plan should be created in cooperation with the employee. A template for this is available here (in norwegian).
c) Give the employee time to improve or correct his/her behaviour.
d) Documentation should be produced for all conversations. Remember that in the event of a lawsuit, the employer has to produce evidence of the matters on which a dismissal is based; documentation, therefore, is essential
e) A warning in writing should be considered if the employee does not show any signs of improvement. You can use our template for written warnings (in norwergian).
Notice during the period of trial
Before a decision of dismissal is taken, the employer, pursuant to the Working Environment Act Section 15-1, shall discuss the matter with the employee.
The actual decision should be made the day after the consultation meeting at the earliest. Also, remember that a notice of dismissal must be formally correct and shall be delivered to the employee in person or sent by registered mail.
During the trial period a notice of 14 days from date to date applies unless otherwise agreed in writing or laid down in a collective pay agreement.
NHO’s standard agreements, therefore, contain provisions regarding periods of trial, etc.
If an employee during a period of trial brings civil action against the employer regarding the validity of the dismissal, he/she, as a main rule, is not entitled to remain in his/her position while the lawsuit is being dealt with. If the employee in a trial period demands a consultation meeting, a template for minutes is available here. (in Norwegian)