The significance of seniority in downsizing processes

Justice: Matningsdal, Møse, Normann, Ringnes, Falch

A large construction firm, that had reduced its workforce due to declining orders, had departed from the seniority principle when selecting which persons to dismiss and instead emphasised competence and professional skills. The Supreme Court held that a conclusion of unfair dismissal under section 15-7 of the Working Environment Act and section 8-2 subsection 1 of the Basic Agreement must always be specific and based on an overall assessment, and that the selection may be based on other criteria than seniority, such as qualifications, professional skills and competence. Referring to the seniority principle as a main rule could have misleading connotations, although it must form the basis for the selection. The Court of Appeal had applied the seniority principle beyond its legal basis. The Supreme Court found nevertheless, like the Court of Appeal, that the dismissals were invalid due to errors in the employer's procedure. A real assessment had been made of only a minority of the selection group. The assessment was thus too narrow and inadequate to justify the dismissals.