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Bristande arbetsprestation - saklig grund för uppsägning?

Ternow, Per (2008)
Department of Law
Abstract
This thesis covers dismissal due to the employee's underachievement. The 7 § of the Swedish Employment Protection Act states that there must be just cause for dismissal. There are two different situations that classify as just cause for dismissal&semic shortage of work or reasons related to the individual employee concerned. Underachievement falls within the latter. The circumstances under which just cause for dismissal prevails is not defined in the legislation. Instead this has been determined through statements in the preparatory work of the legislation and through court decisions. There are however situations when just cause for dismissal is not statutory, such as when it is considered reasonable that the employer transfers the... (More)
This thesis covers dismissal due to the employee's underachievement. The 7 § of the Swedish Employment Protection Act states that there must be just cause for dismissal. There are two different situations that classify as just cause for dismissal&semic shortage of work or reasons related to the individual employee concerned. Underachievement falls within the latter. The circumstances under which just cause for dismissal prevails is not defined in the legislation. Instead this has been determined through statements in the preparatory work of the legislation and through court decisions. There are however situations when just cause for dismissal is not statutory, such as when it is considered reasonable that the employer transfers the employee to other tasks or if the employee suffers from a medical condition. Underachievement can be considered a just cause for dismissal but this does not have to be the case. There are other important factors such as whether or not the employer has fulfilled his duty of loyalty and not least the employee's attitude towards the situation at hand. The employer's duty of loyalty consists of certain steps that must have been taken before the dismissal of the employee is carried out. To begin with the employer and the employee should try to solve the problems arising at the workplace, for example by dialogue, capacitation or other supporting measures. The employer should also, by a warning or admonition, point out any inadequacy in the employees work performance. The next step is to try to transfer the employee to other tasks. If this also fails dismissal can be possible, but it is important to point out that dismissal should be considered as a resort out and only be possible when all other measures taken have proved ineffective. The employee's obligations consist first and foremost of a responsibility to fulfil the duty to work, but also to cooperate solving the problems at the workplace by, for example, accepting a transfer to other tasks. An important ground for judgement regarded by the Swedish labour court is what conclusion can be made for the future, i.e. how the situation can be expected to evolve over time. The last chapter of the thesis includes an analysis of the legislation from a perspective of the theory of normative patterns. According to this theory the legislation is a codification of the moral values in the society, out of which one can distinguish certain patterns. The analysis in this thesis is based on the normative patterns Protection of Established Position and The Market Functional Pattern. My conclusion is that the Swedish employment protection act is mostly influenced by Protection of established position, with strong employment protection and far-reaching obligations to rehabilitate employees. Nevertheless are there also parts of the legislation that are influenced by The Market Functional Pattern, such as the possibility to claim shortage of work as just cause for dismissal and the possibilities to disregard from the employment protection due to employees who commits crimes. (Less)
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author
Ternow, Per
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Arbetsrätt
language
Swedish
id
1562519
date added to LUP
2010-03-08 15:55:30
date last changed
2010-03-08 15:55:30
@misc{1562519,
  abstract     = {This thesis covers dismissal due to the employee's underachievement. The 7 § of the Swedish Employment Protection Act states that there must be just cause for dismissal. There are two different situations that classify as just cause for dismissal&semic shortage of work or reasons related to the individual employee concerned. Underachievement falls within the latter. The circumstances under which just cause for dismissal prevails is not defined in the legislation. Instead this has been determined through statements in the preparatory work of the legislation and through court decisions. There are however situations when just cause for dismissal is not statutory, such as when it is considered reasonable that the employer transfers the employee to other tasks or if the employee suffers from a medical condition. Underachievement can be considered a just cause for dismissal but this does not have to be the case. There are other important factors such as whether or not the employer has fulfilled his duty of loyalty and not least the employee's attitude towards the situation at hand. The employer's duty of loyalty consists of certain steps that must have been taken before the dismissal of the employee is carried out. To begin with the employer and the employee should try to solve the problems arising at the workplace, for example by dialogue, capacitation or other supporting measures. The employer should also, by a warning or admonition, point out any inadequacy in the employees work performance. The next step is to try to transfer the employee to other tasks. If this also fails dismissal can be possible, but it is important to point out that dismissal should be considered as a resort out and only be possible when all other measures taken have proved ineffective. The employee's obligations consist first and foremost of a responsibility to fulfil the duty to work, but also to cooperate solving the problems at the workplace by, for example, accepting a transfer to other tasks. An important ground for judgement regarded by the Swedish labour court is what conclusion can be made for the future, i.e. how the situation can be expected to evolve over time. The last chapter of the thesis includes an analysis of the legislation from a perspective of the theory of normative patterns. According to this theory the legislation is a codification of the moral values in the society, out of which one can distinguish certain patterns. The analysis in this thesis is based on the normative patterns Protection of Established Position and The Market Functional Pattern. My conclusion is that the Swedish employment protection act is mostly influenced by Protection of established position, with strong employment protection and far-reaching obligations to rehabilitate employees. Nevertheless are there also parts of the legislation that are influenced by The Market Functional Pattern, such as the possibility to claim shortage of work as just cause for dismissal and the possibilities to disregard from the employment protection due to employees who commits crimes.},
  author       = {Ternow, Per},
  keyword      = {Arbetsrätt},
  language     = {swe},
  note         = {Student Paper},
  title        = {Bristande arbetsprestation - saklig grund för uppsägning?},
  year         = {2008},
}