One of the most frequent questions that a worker usually asks himself when he is on medical leave, especially in those cases in which his employment situation is not especially stable or in case of prolonged leave, is whether he can be fired during that period.
The reality is that
you can be fired while on sick leave,
either due to common illness, non-work accident or professional contingencies, provided that there are real and legal causes for it.
However, the very fact of being on leave cannot be the cause of the dismissal.
Sick leave can never be the reason for dismissal
Currently, Spanish legislation allows the dismissal of practically any worker freely,regardless of the employment situation in which he finds himself; provided that it is justified in any legal cause.
The only situation of sick leave that is protected by dismissal is that caused by diseases caused by pregnancy or maternity.
However, the company must justify the dismissal in certain assessed causes, includedin the Workers’ Statute:
- For serious and culpable breaches of the worker that motivate a disciplinary dismissal,such as repeated and unjustified absences or unpunctuality, disobedience, verbal or physical offenses or harassment of co-workers, decreased performance, habitual drunkenness or drug addiction, breach of trust.
- For reasons that motivate an objective dismissal,such as ineptitude of the worker or lack of adaptation to the job, for lack of attendance, justified or not, that exceed certain limits.
- For technical, economic, production or organizational reasons incurred in the company.
Obviously, the company will always adduce any of these causes if it fires someone while on sick leave.
But, in the event of a claim, it is up to her to prove that this cause exists and that the dismissal is not really due to the situation of leave that affects the worker.
How to proceed if you are fired while on leave?
In the first place, the company must communicate the dismissal, for which the most common thing is to send the dismissal letter by burofax, indicating the causes of the dismissal and the period from which it will be effective.
You can be fired while on sick leave but they can not force you to physically go to the headquarters of the company,with more reason if your leave situation is incompatible with that transfer.
Once the letter is received, you have 20 working days (not counting Saturdays, Sundays and holidays) to challenge the dismissal,regardless of whether or not you are still on leave.
For this it is necessary to present a work conciliation ballot before the corresponding Conciliation Service.
If it is impossible to do so personally because of the state of health, any other person on behalf can present the ballot.
Is dismissal for sick leave unfair?
If, at trial, it is proven that the real cause of the dismissal is the sick leave,the Spanish jurisprudence has opted, so far, to qualify the dismissal as unfair.
In that case, the company will be obliged to offer these two options to the worker:
- Return to the old job.
- Pay compensation for the legal amounts provided:
- If the contract is dated after February 12, 2012, the amount will be 33 days of salary per year worked up to a maximum of 24 monthly payments.
- If the contract is of an earlier date, two amounts will be added: 45 days of salary per year worked prior to February 12, 2012, with a maximum of 42 monthly payments, plus 33 days of salary per year worked after that date, with a maximum of 24 monthly payments.
Is it possible to collect unemployment after a dismissal while on leave?
As long as you remain on sick leave, you will continue to receive the benefit for temporary disability.
Once the leave is over, the situation will depend on the origin of it:
If the leave is due to common illness or non-work accident…
The maximum amount to be collected as temporary disability will become the one that would correspond as unemployment benefit.
Once the leave is over, you can request unemployment,if you are entitled to benefit, but what has already been charged during the period of leave will be deducted.
If you are not entitled to a benefit, this amount will not be deducted in any case. Nor will it be discounted if what you are entitled to is unemployment benefit (non-contributory benefit).
If the leave is due to illness or accident at work…
The same amount will continue to be charged for temporary disability until the end of the leave. If you are entitled to unemployment benefit, no amount will be deducted.
conclusion
In short, it is true that you can be fired while on leave.
However, dismissal for sick leave is not possible.
It is necessary for the company to justify its decision in legal and assessed cases that support an objective or disciplinary dismissal.
If you have been fired while on sick leave and want us to analyze your case, contact AYCE Laborytax and our labor advisors will help you in the defense of your rights.
