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21 January 2015
In a December 3 2014 decision (HR-2014-2364-A), the Supreme Court assessed for the first time the question of the applicable standard of proof in a case regarding summary dismissal based on an alleged criminal offence. The Supreme Court's ruling considered the application of the standard of proof in criminal proceedings or cases regarding defamatory statements, and whether a lower standard of proof than 'beyond a reasonable doubt' would constitute breach of the European Convention of Human Rights and the Norwegian Constitution.
Norway's legal system, like many others, operates with three different standards of proof. In civil litigation, the general standard of proof is preponderance of the evidence (or a 'more likely than not' probability) – unlike in criminal cases, where the defendant's guilt must be proven beyond reasonable doubt.
According to case law, a stricter standard of proof may apply in certain civil cases, requiring clear and convincing evidence. The latter demands more than preponderance of the evidence but less than evidence beyond a reasonable doubt. In order to meet the standard and prove something by clear and convincing evidence, a party must prove that it is substantially more likely than not that the alleged fact is true.
The 'clear and convincing evidence' standard typically applies in cases where the accusations are deemed especially incriminating for one of the parties – for example, in cases regarding liability for non-economic loss following an acquittal for a serious criminal offence.
According to lower court judgments and general legal opinion, cases regarding summary dismissal – subject to certain limitations – require clear and convincing evidence. The question in the abovementioned case before the Supreme Court was whether the even stricter standard of proof (beyond all reasonable doubt) applied where a dismissal was based on an alleged criminal offence
According to Section 15-14 of the Working Environment Act, an employer may terminate an employment contract with immediate effect (summary dismissal) due to gross misconduct or other serious breach of the employment contract.
In the case at hand, the plaintiff was dismissed without notice due to alleged embezzlement from the employer. The plaintiff claimed that as the summary dismissal was based on allegations of a criminal offence, the standard of proof should be the same as in criminal proceedings – that is, the facts should be proved beyond reasonable doubt.
To support this argument the plaintiff asserted that the standard of proof should comply with the applicable standard of proof in the event that the employee had instituted legal proceedings for defamation, rather than contesting the dismissal.
The Supreme Court pointed out that the standard of proof in defamation cases could not be compared to dismissals without notice, as they are different case types and are regulated by separate sets of rules. In addition, such a standard of proof would be in direct conflict with the vast majority of court rulings regarding compensation after an acquittal.
Further, the plaintiff argued that a lower standard of proof (ie, lower than beyond reasonable doubt) would imply a breach of the presumption of innocence, as set out in Article 6(2) of the European Convention of Human Rights; Article 14(2) of the International Covenant on Civil and Political Rights; and the Norwegian Constitution.
The court disregarded the argument, pointing to the fact that the presumption of innocence in both of the conventions and the Constitution concern parties "charged with a criminal offence". Hence, the asserted articles are not applicable in civil litigation. The court specified that the case in question was a civil case, where the relevant sanctions could not be characterised as – or compared to – punishment.
The court concluded that cases concerning summary dismissals, as stated in previous case law and legal literature, generally require clear and convincing evidence, and that this also applied in the case in question. Further, the court stated that under no circumstances would the standard of proof in criminal cases apply in cases regarding summary dismissal.
The Supreme Court's ruling confirms the existing view regarding standard of proof in summary dismissal cases: as a general rule, the employer must provide clear and convincing evidence supporting the grounds for dismissal.
This decision reinforces the importance of the employer's procedure for summary dismissals and the value thereunder of having sufficient documentation and clarification of the facts.
For further information on this topic please contact Ole Kristian Olsby at Homble Olsby Advokatfirma AS by telephone (+47 23 89 75 70), fax (+47 23 89 75 71) or email (firstname.lastname@example.org). The Homble Olsby Advokatfirma website can be accessed at www.homble-olsby.no.
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