We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
19 June 2019
On 15 May 2019 the Supreme Court ruled in a case concerning the validity of an amendment termination. In its decision, the court commented on the difference between the threshold for amendment terminations and that for ordinary complete terminations of employment.(1) Although the matter at hand was regulated by the Ship Employee Act, the Supreme Court's judgment is relevant for amendment terminations under the Working Environment Act.
Hurtigruten (a Norwegian tourist ship which travels along the Norwegian coast, among other places) terminated its employment relationship with its chief officer after he chose the wrong course for passing Finnsnesrenna, Troms, during a thick fog, which resulted in the ship running aground. On giving the employee notice of his termination from the position of chief officer, Hurtigruten offered him the position of first mate. The employee accepted the offer, but instituted legal proceedings regarding the amendment termination.
The district court deemed the amendment termination valid. However, the Court of Appeal concluded that the amendment termination was invalid because, among other things, Hurtigruten had given insufficient consideration to the employee's long and faithful service and had not obtained risk evaluations from maritime experts in making its decision.
At the start of its assessment, the Supreme Court provided principal comments regarding the threshold for amendment terminations. It stated that in an overall assessment of whether an amendment termination is objectively justified, the fairness of the termination is relevant. It is also relevant whether the employee is allowed to continue as an employee of the company. However, the weight of this aspect will vary according to the individual circumstances of a case. A comparison of the new and old positions will also be significant.
After reviewing the basis for the termination in the case at hand, the Supreme Court performed an overall assessment of whether the termination was based on objectively justified grounds. The court emphasised the strict security requirements which apply at sea and held that the chief officer had been in a leadership position. The Supreme Court stated that the chief officer had violated applicable regulations and demonstrated poor judgement in his assessment of the course. Contrary to the Court of Appeal, the Supreme Court found that the basis for Hurtigruten's decision was sufficient and that it had not been necessary to obtain a risk evaluation from maritime experts. In its overall assessment, the Supreme Court emphasised that the chief officer had continued to be an employee of Hurtigruten as a first mate, a position with significant similarities to his previous position. Therefore, the Supreme Court concluded that the amendment termination was valid.
The Supreme Court's decision does not significantly clarify the threshold for amendment terminations. Although it substantiates that the threshold for amendment terminations is lower than that for ordinary and complete terminations of employment, the individual circumstances of a case will determine how much lower this is. Therefore, it is likely that the threshold for amendment terminations will be subject to further development and clarification through case law regarding other changes in employees' positions.
For further information on this topic please contact Ole Kristian Olsby or Lise Gran at Homble Olsby | Littler by telephone (+47 23 89 75 70) or email (email@example.com or firstname.lastname@example.org). The Homble Olsby | Littler website can be accessed at www.homble-olsby.no.
(1) The Supreme Court judgment is available in Norwegian here.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.