Terminated without cause - the work shortage was self-created

Published:

The Danish Dismissal Board’s decision of 22 September 2025

Termination after sick leave created conflict

The Danish Dismissal Board recently heard a case involving the termination of a clinic secretary shortly after she returned from sick leave. The Dismissal Board determined that the sick leave was related to a meeting that had occurred shortly before the sick leave was taken between the employee and the employer.

The employer cited restructuring and staff overcapacity as the reasons for the dismissal. The main issue was that the employer hired a new secretary while the clinic secretary was on sick leave. The new secretary's position significantly overlapped with the clinic secretary's previous duties.

The termination was announced on the clinic secretary's first day back from sick leave, when she had just been welcomed back by her colleagues and the management team. Later that day, she was called in for an interview and terminated. The following day, she received a written warning for her reaction, which the employer claimed caused unrest among her colleagues.

The Danish Dismissal Board's assessment - the employer created a shortage of work

The Danish Dismissal Board found that the employer had not documented an actual need to reduce staff. The Board emphasized that the alleged overcapacity was solely the result of the employer's decision to hire a new secretary while the clinic secretary was absent.

The Danish Dismissal Board found that the employer should have anticipated the need for staff reduction at the time of hiring the new secretary and that the employer had created the situation that was later used as the reason for the dismissal.

Additionally, the Board emphasized that the termination was justified by both the clinic secretary's sick leave and her social behavior. Since the sick leave could be attributed to a specific workplace incident as well as the general atmosphere, it was considered an aggravating circumstance.

The consequence for the employer

The Danish Dismissal Board ruled that the dismissal was unfair and not objectively justified, cf. section 6(2)(e) of the General Agreement between the Danish Dental Association and HK/Service. The employer was therefore ordered to pay compensation of DKK 125,000.

Littler notes

The decision shows that employers cannot create excess capacity by hiring new staff during an employee's sick leave and then use that as grounds for termination. If the illness is also attributed to conditions in the workplace, termination will be considered particularly critical.

Littler recommends that employers carefully assess the need for new hires during employee absences and ensure that any terminations are based on clear, documentable facts.