Illness and dismissal of an employee
In accordance with art. 53 of the Polish Labor Code, the employer may terminate the employment contract without notice if the employee’s inability to work due to illness continues: longer than 3 months
– if the employee has been employed for a given employer for less than 6 months, longer than the total period of receiving remuneration and benefits in this respect and receiving a rehabilitation benefit for the first 3 months
– if the employee has been employed by the employer for at least 6 months or if the incapacity for work was caused by an accident at work or an occupational disease;
The aforementioned provision regulates the admissibility of terminating an employment contract without notice because of the employee’s long-term excused absence. This is due to the logical assumption that the employer employs employees in order to benefit from their work, and the employee’s long absence from work destroys this goal.
It is worth remembering that only after the end of the “protection period” the employer may terminate the employment contract, however, provided that the employee did not show up at work when the reason for absence ceased to exist. Termination of the employment contract without notice may not occur after the employee has appeared for work in connection with the cessation of the reason for absence.
By ‘appearing’ is meant the arrival at the place of work in readiness and objective capacity to perform it. Importantly, as an employee arriving to work, the employee may legally exercise the statutory entitlement to not work (e.g. holiday).
In turn, the failure of the employee reporting his return to work to undergo the medical examination, to which he was directed by the employer, justifies the termination of employment pursuant to art. 53 § 1 point 1 lit. b of the Labor Code (see judgment of the Supreme Court of June 21, 2005, reference number II PK 319/04).
It is also worth knowing that an employee cannot receive a statement about the termination of the contract during the “protection period”, ie when he or she receives, for example, a rehabilitation benefit. The employer may provide the employee with such a statement only from day 91, not earlier. Although it would seem that this is only a technical issue, the Labor Courts take it very seriously and often only for this reason they consider the employer’s statements on termination of the employment contract invalid.
KSJ Legal Law Firm successfully conducts labor law cases, including those regarding unjustified or fictitious termination of the employment contract. We advise at every stage of the proceedings, from the preparation of a legal opinion to obtaining a final decision before the court of second instance.
Attorney-at-law Joanna Susło
KJS Legal Kancelaria Adwokacka – Law firm in Wrocław
Advocate – Wrocław – Labour law