Sweden: The Labour Court rules on the burden of proof regarding the validity of an invoked notice of resignation

The case concerns whether an employee was summarily dismissed by his employer or if the employee resigned on his own initiative. The employee’s trade union claimed that the company summarily dismissed the employee without objective reasons, while the employer argued that the employee had resigned by submitting a hand-signed notice of resignation during a personal visit at the employer´s premises. According to the trade union, the notice of resignation was a forgery and was not submitted by the employee to the employer.

The Labour Court stated that, when an employer claims that an employee has resigned by a hand-signed written notice of resignation which can be presented in original, and it is argued that the document is a forgery, the employer has the burden of proof that the document is authentic. The employer must then make it predominantly likely that the document is authentic. This alleviation of the burden of proof is due to the evidentiary effect which follows from the presentation of the original document. In addition, the employer shall prove that the document was submitted by the employee to the employer.

According to four witnesses of the employer, the employee had visited the employer’s premises and submitted a signed notice of resignation.  The Labour Court found that the fact that their statements were not identical increased their credibility rather than reduced it, as it indicated that the witnesses had not coordinated their statements. The Labour Court underlined that the union had not presented any analysis regarding the authenticity of the notice of resignation, although the union had been in possession of the original document for a long time. Further, the union claimed that the employer, following the last date of employment as stated in the resignation letter, had acted as if the employee was still employed. However, the Labour Court did not find that what the trade union had presented diminished the evidential value of what the witnesses had stated regarding the authenticity of the resignation letter and that it was submitted by the employee to the employer.

Accordingly, the employer had made it predominantly likely that the document was authentic and had proved that it was submitted by the employee to the employer. Consequently, the employee had not been summarily dismissed by the employer.

Key Action Points for Human Resources and In-house Counsel

When an employer claims that an employee has resigned by a hand-signed written notice of resignation which can be presented in original, and it is argued that the document is a forgery, the employer must fulfil its burden of proof by making it predominantly likely that the document is authentic.