Perhaps every employee wonders if they can be fired on sick leave. After all, health can fail at any time. But it is unlikely that anyone would like to discover that an employment contract was terminated with him during his illness. To avoid illegal actions, you need to be savvy in matters of labor law.
What does the law say?
To the question of whether they can be fired on sick leave, it is worth looking for the answer in article 81 of the Labor Code. It clearly indicates that the employer cannot terminate the contract with his subordinate during his temporary disability on his own initiative. If such a nuisance has occurred, the director has the opportunity to reinstate the employee in his position and pay him sick leave to avoid negative legal consequences.
Otherwise, the employee may apply to the judicial authorities with a claim for unlawful dismissal. Having studied domestic practice, we can conclude that such cases almost always win the plaintiff. As a result, the defendant has to reinstate the employee in his position, to pay him compensation for non-pecuniary damage, as well as wages for the time during which he was in involuntary absenteeism.
Sick or absenteeism?
Can they be fired on sick leave? Legislation gives a negative answer. But what if the employer did not know the reasons for the absence of the employee? Most likely, this will be considered absenteeism and a letter of resignation will be signed. But is everything so simple as it seems at first glance?
In fact, the employer has no right to dismiss an employee without finding out the reason for his absence. But the employee himself has no obligation to inform his superiors about his release on sick leave. The fact is that temporary disability can occur for various reasons, including the most serious. Thus, a person may be physically unable to notify the boss of his absence. The director must independently find out the reasons for the absenteeism of the subordinate to his workplace.
Reduction and elimination
Dismissal by reduction on sick leave is not possible. If the employer does not plan to completely complete the activities of the enterprise or branch, terminating the contract with a temporarily disabled employee is illegal. Nevertheless, do not confuse reduction with complete elimination. If the enterprise or branch where the employee on the sick leave worked, completely ceases to exist, the dismissal is legal.
Dismissal of an employee on sick leave of his own free will
If an employee has a sick leave, but he has expressed a desire to terminate the employment contract, such dismissal will not have any negative consequences for the management of the enterprise. But a different situation may arise. For example, an employee wrote a letter of resignation while in a working condition. But on the same day he gets on sick leave. In this case, the employee has the full right to withdraw his application. In case of refusal, dismissal at the sick-list will be considered illegal.
Also, an employee can write a letter of resignation during a sick leave. In this case, the following statements are true:
- The date of dismissal may be considered the day after two weeks from the date of writing the application.Moreover, if this period is partially or fully covered by the sick leave, the employee is relieved of the obligation to work out.
- The date indicated in the application itself, which is later in relation to the closure of the sick leave. In this case, the employee will be required to work the prescribed 14 days.
Sick during the trial period
Can they be fired on sick leave during a probationary period? In this case, temporary disability is not an obstacle to termination of relations. If the boss considers that the employee does not meet the requirements of the organization or has violated any official duties or norms, they can dismiss him, even despite the sick-list. However, there are some significant details. Notify the employee who is on probation, the dismissal is necessary for 15 days. If this rule has not been complied with, the employee may file a lawsuit with the court for reimbursement of funds for each day of delay in advance notice.
Disability
In some cases, as a result of temporary disability, a person may be assigned a disability. But this is not a reason for dismissal. The employer has the right to terminate the contract only if the medical commission recognized the person as incapable. Otherwise, his workplace should be kept behind him. Also, in accordance with the conclusion of the commission, the employer may have an obligation to transfer the employee to another position, implying easier work.
End of employment contract
In many enterprises, fixed-term employment contracts are concluded with employees. Despite the fact that the dismissal of an employee on sick leave is prohibited by law, this rule does not apply to cases when the contract expired. In this case, the chief may dismiss the temporarily incapacitated employee without consequences. Nevertheless, this does not relieve him of the obligation to pay the sick leave in full, even if the end date is later than the completion of the employment contract.
Mutual agreement
The only case when it is possible to dismiss an employee on the sick leave at the initiative of the employer is the consent of the employee to such a decision. Consent must be in writing and transmitted in person or through postal services. On the day of dismissal, the employee on sick leave should receive a calculation and a work book. If the employee due to health reasons cannot come to the company, he will be sent a corresponding notice of dismissal, as well as an invitation to collect the funds and documents. If, by the time of dismissal, the sick leave has already ended, the calculation is carried out on a common basis. If the employee’s illness has dragged on, then with his consent, a work book and settlement through the postal services will be sent to him within thirty days.
Sick leave payment
Dismissal at the initiative of the employer during a sick leave is considered illegal. But if the employee himself expressed such a desire, the question becomes acute regarding the payment of a disability certificate. So, if at the time of entering the hospital person was officially considered an employee of the enterprise, payment is made on a common basis. Moreover, it should cover even the period in which a person was no longer considered an employee of the organization. A former employee has the right to payment of sick leave also in the event that disability occurs within a month after dismissal. But in this case, it will be equal to approximately 60% of earnings.
Sick leave
Dismissal on sick leave is often due to the fact that the absence of an employee on the spot lasts too long. In this regard, the question of the maximum possible duration of incapacity for work of an employee is acute. It is worth noting that the maximum duration at the legislative level has not been established.But here there are some subtleties.
If the employee needs outpatient treatment, the medical officer issues him a temporary disability sheet for a period of 10 days. If at the next examination it was found that additional treatment is required, the term of the document can be extended up to 30 days. To increase the sick leave period over a month, the conclusion of a medical commission is necessary. If the prognosis for recovery is favorable, a certificate of incapacity for work is issued for a period of up to 10 months. In severe cases (after serious injuries or operations), the sick-list is extended one-time up to 12 months with the possibility of further increasing this period when passing the medical commission.
Reasons for going on sick leave
Dismissal on the initiative of the employer of an employee on sick leave is impossible, regardless of what is the reason for the disability. It may be as follows:
- for a disease requiring outpatient or inpatient treatment;
- maternity;
- to care for a disabled close relative (spouse or one of the parents);
- after dental procedures;
- after emergency hospitalization or emergency call;
- for caring for a child up to 7 years (for the entire period of the disease) or up to 15 years (up to 15 days).
Conclusion
Unfortunately, not all employers conscientiously fulfill their obligations regarding employees. So, there are cases when the authorities resorted to the dismissal of workers who were on sick leave. This is prohibited by the Labor Code. If such an offense has been committed against you, feel free to go to court. Most likely, the court will take the side of the illegally dismissed employee who will receive the right not only to reinstatement, but also to material compensation.