Employment in the public sector
Appointments made in the public sector are more regulated than those made in the private sector. This applies to the hiring procedure and process as w...
Advice and Tips
Dismissal in the public sector
Written by Tekna’s legal department
Modified: Mar. 2 2021
For most employees in Norway, the rules on hiring and dismissal are regulated by the Working Environment Act. But in the case of public sector employees, a separate law has been passed that guides hiring and dismissal.
This law is called the State Employee Act. It was enacted in 2017, replacing the Civil Servant Act from 1983.
In the following we’ll explain this law and the plans that apply to public sector employees. Embedsmenn, or high-level public officials, make up a separate group of employees in the public sector. We won’t go into detail here about the rules that apply to this group.
Under what circumstances can an employer start dismissal proceedings?
Dismissal may either be based on circumstances arising at the organizational level or on ones for which you as an employee are responsible.
Dismissal based on organizational circumstances - section 19
A civil servant may be dismissed when the dismissal is objectively justified by organizational circumstances. Although this should be interpreted in much the same way as is done in the private sector, the law’s framework shows that it is intended to apply to four different situations:
- Public organizations have received general cuts to their funding
- Work tasks have been discontinued as a consequence of re-organization and optimization
- Financing of externally financed positions has been discontinued
- The organization has relocated and the employee does not want to relocate
Other appropriate work
In Section 19’s second paragraph the point is made that a dismissal has not been objectively justified if the employer has other appropriate work to offer the employee. If a dismissal has been justified by one of the above situations, it is in other words not objective if your employer has other tasks to offer you.
It is a prerequisite that you have the qualification requirements for the position.
The law’s framework states that the employer is not obligated to create any position or combine tasks in order to construct a position.
The regulations in section 7 of the law provide some further delineations as to what may be regarded as other appropriate types of work. For example, it states that a higher-level position is not other appropriate work. If you are uncertain if this applies to you, we advise you to contact us so we can evaluate your case. The regulations also specify that offers of other appropriate types of work do not apply to employees who have been dismissed from tenured positions, educational positions, internships and positions in the Armed Forces such as commander and grenadier/constable.
Assessment: advantages and disadvantages
The new State Employee Act introduces a resolution that an assessment must be made that takes into account both the organization’s need to start dismissal proceedings and the difficulties this dismissal will cause the employee. If you receive a notice of dismissal, you can appeal this decision. In your appeal you can ask the appeals body to rule on this assessment. The appeals body’s decision regarding your case is legally binding. In other words you cannot take your case further to the courts (in contrast to what is allowed in the private sector).
First right of hire
If you are dismissed due to organizational circumstances, you have the first right of hire for other posted governmental positions. This is often called external first right of hire. We will describe this term further below.
Dismissal based on the civil servant’s circumstances - section 20
A dismissal may also be justified by circumstances caused by you the employee. A dismissal may be objectively justified if you:
- Are not able to resume your work due to illness
- No longer have the qualifications associated with your position
- Due to persistent unsatisfactory work performance are unsuited for the position or
- Have repeatedly failed to perform your duties
Illness
If the dismissal is justified by illness or a lack of qualifications, you are if possible to be offered other suitable work before being given a dismissal notice.
When illness is involved, there is another practical rule that applies: During the first year you are on sick leave, you are completely protected against being dismissed. This rule appears in the Working Environment Act section15-8. (The fact that this rule also applies to the public sector is a consequence of the State Employee Act section 21). It is general practice in the public sector that an employee has dismissal protection for two years after first becoming ill.
There is, however, one exception to this rule: If you have become 100 percent disabled and cannot resume working, the conditions for dismissal will have been met, even if two years have not passed.
It is also important to remember that an employer is obligated to do what they can to help the employee who is on sick leave return to work. If it is the case that you would be able to resume working if you got help to do so, there would probably be no objective reason to dismiss you. If your employer wants to dismiss you because you are on sick leave, they must document that they have first tried to facilitate your return.
Lack of qualifications
The point about lack of qualifications includes both the fact that the employee no longer has the qualifications required for the position and the circumstances in which the qualification requirements have changed. For example, dismissal may be objectively justified because the employee has lost their certificate, license, security clearance, etc.
Incompetence
Regarding the criterion about inadequate job performance, there is a requirement that this situation is «continuous». In previous laws the criterion was "permanent incompetence".
Violation of duties
This term did not exist in the old Civil Service Act, where the criterion was that the employee «has repeatedly violated their duties». A concrete evaluation must be made in each instance concerning what may be expected from an employee. This evaluation must emphasize both the quality and quantity of the employee’s work as well as their ability to converse and cooperate with managers and coworkers. A single «violation» is not sufficient. These kinds of situations must be reacted to with either a warning or disciplinary action.
Examples of situations that may involve violation of duties are: breach of loyalty, inappropriate behavior or conduct, or lasting and unsolvable collaboration problems. There is a high threshold for dismissing an employee, and an employer must be able to show documentation that directly relates to the incidents that have been brought up to justify dismissal.
Notice periods
Notice periods in the public sector depend on the length of your employment.
If your employer dismisses you, your notice period will be one month during the first year of your employment. If you have been employed for more than one year, your notice period will be three months. After two years the notice period will be six months.
In cases where the employee quits, the notice period will be one month during the first year and three months thereafter.
Please note that dismissal in the public sector runs from date to date, in contrast to the private sector, where the notice period often starts from the first day of the month after notice has been given.
First right of hire in the public sector - section 24 – external first right of hire
If you have been dismissed due to organizational circumstances, you have the first right of hire for other civil service positions – what we often call ‘external first right of hire’.
In order for this regulation to apply, you must have been continuously employed in the organization for a total of at least 12 months over the past two years. No distinction is made between permanent and temporary employment
First right of hire applies from the date you received notice and for two years after your notice period has expired.
First right of hire is rescinded if you do not accept an offer of employment for an appropriate position. This regulation also applies if the offer concerns a new permanent position in the same organization from which you have been dismissed.
You have to follow along
Your employer is not obligated to take the initiative in offering you a new position; as a result, it will often be the case that you yourself have to take the initiative to apply for an advertised position. In this way you can show that you believe you have first right of hire. If you also fulfill the qualification requirements stipulated by the employer, you are to be hired for the position, even if there might be other applicants who are better qualified than you. If there are several ‘first right of hire’ applicants for a position, the one who is most qualified for the job is to be hired
There are also several applicable supplementary regulations which list several exceptions to the first right of hire regulation and appear in section 8. For instance, this right does not apply to educational and tenured positions, positions that are highly ranked or positions such as professor, docent, associate professor or assistant professor, unless the employee has been dismissed from this type of position. Neither does this right apply to temporary employees, including employees in professorial and other educational positions.
Who can make decisions regarding dismissals, and which rules apply to processing dismissal cases?
The Employment Council makes decisions regarding dismissals, which is stipulated by the State Employee Act section 32. This is the same body that hires public sector employees. This Council is a collegial body comprised of representatives for both employees and employer in an organization. Additionally, the Council is led by a representative appointed by the employer – see the State Employee Act section 6. According to the Public Administration Act, dismissal decisions are defined as being individual decisions, and the rules in this Act that determine how each case is processed also apply to a dismissal.
Advance notice
An advance notice is one of the documents that must be sent before any dismissal decision is made. This notice may be found in the Public Administration Act section 16. This notice contains information about the facts that tell why the employer is moving towards dismissal and the legal basis they are using for this dismissal. The notice also informs you of your right to both an attorney and access to your case documents (please refer to the Public Administration Act section18). You are also given the opportunity to present your case within a short deadline. The length of this deadline is not stated.
Right to explain your side of the case
You have the right to explain yourself orally to the Employment Council before it reaches its decision. You also have the right to receive help from a union representative or other advisor.
Right to appeal
If the Employment Council makes the decision to dismiss you, you can appeal this decision to a superior authority in accordance with the State Employee Act section 33. The appeal deadline is three weeks from the date when notification of the decision has been received (please refer to the Public Administration Act section 29).
The appeals board can override all aspects of the decision, including its processing, facts, legal enforcement and administrative discretion.
If the appeals board upholds the dismissal decision, you can file a lawsuit in order to try the legality of the appeals board’s decision. If you demand to be given your job back, the deadline for filing a lawsuit is eight weeks from when you were informed of the board’s decision. If you only want to demand compensation, the deadline is six months.
A note about embedsmenn, or high-level public officials
Embedsmenn are protected by the Constitution from dismissal in accordance with the Constitution section 22. Embedsmenn employed at government offices or in the diplomatic corps or consular service, civil authorities, heads of regiments and other military corps, commanders of fortresses and commanders-in-chief of warships may be dismissed by the King. Other embedsmenn, for example, professors, can only be removed from their positions by conviction.
It appears in the State Employee Act section 28 that an embedsmann can be removed by conviction when they show themselves to be permanently unfit to properly perform their duties in the line of service or when they no longer have the necessary or valid authority to uphold their office.
