Provocerade uppsägningar - om samspelet mellan materiella och processuella rättsregler
Provoked Dismissals - on the Application of Material and Procedural Rules Governing this Legal Concept
Author
Summary, in English
The title of my thesis is “Provoked Dismissals – on the Application of Material and Procedural Rules Governing this Legal Concept”. Since the Swedish Law of Employment Protection came into force, the requirement of proper cause for dismissal has been a widely discussed topic within the field of labour law. That an employer needs proper cause when dismissing an employee is perhaps not surprising. However, that an employer may sometimes need proper cause when the employee himself or herself terminates the employment relationship is a concept more difficult to grasp. A resignation formerly conducted by the employee may in reality have been caused by the employer. The reasons for this can be many. The employer may have forced the employee to terminate the employment through threats, through failure to implement adequate rehabilitation measures or through harassment. If so, the resignation may be regarded as a “provoked dismissal” and the employer must then show proper cause.
However, as regards proof, this legal institution is problematic. The employee carries the burden of proof if he or she claims that a signed resignation is not the result of a voluntary act of the employee, but rather the result of the employer’s unfair acts or omissions. This thesis has shown that an employee who claims to be the victim of a provoked dismissal (or constructive dismissal) rarely wins in court. One reason for this is the problematic situation concerning evidence and another reason is the material law. When the employee has been able to fulfil his or her burden of proof, he or she has just as often fallen on the requirements of material law which the court has interpreted restrictively.
Provocation has been understood as acts deliberately intended to make the employee resign. A Swedish employer is free to use temporary anger, depression or bad mood to convince the employee to resign as long as the anger or otherwise bad mood is not caused by the employer.
This thesis also deals with the technical legal problems regarding the relation between ordinary and summary dismissals, within the concept of provoked dismissal. Provoked dismissal is a legal concept subject to its own set of rules. Finally, the concept of provoked dismissal is an important complement to the requirement of proper cause for dismissal in Swedish labour law. It protects persons who would otherwise have been without protection, even though it covers fewer situations than I thought when I started writing this thesis.
However, as regards proof, this legal institution is problematic. The employee carries the burden of proof if he or she claims that a signed resignation is not the result of a voluntary act of the employee, but rather the result of the employer’s unfair acts or omissions. This thesis has shown that an employee who claims to be the victim of a provoked dismissal (or constructive dismissal) rarely wins in court. One reason for this is the problematic situation concerning evidence and another reason is the material law. When the employee has been able to fulfil his or her burden of proof, he or she has just as often fallen on the requirements of material law which the court has interpreted restrictively.
Provocation has been understood as acts deliberately intended to make the employee resign. A Swedish employer is free to use temporary anger, depression or bad mood to convince the employee to resign as long as the anger or otherwise bad mood is not caused by the employer.
This thesis also deals with the technical legal problems regarding the relation between ordinary and summary dismissals, within the concept of provoked dismissal. Provoked dismissal is a legal concept subject to its own set of rules. Finally, the concept of provoked dismissal is an important complement to the requirement of proper cause for dismissal in Swedish labour law. It protects persons who would otherwise have been without protection, even though it covers fewer situations than I thought when I started writing this thesis.
Department/s
Publishing year
2012
Language
Swedish
Full text
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Document type
Student publication for professional degree (Master's level)
Topic
- Law and Political Science
Keywords
- arbetsrätt
- labour law
- provocerad uppsägning
- frånträdande av anställning
Supervisor
- Per Norberg