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Can an employee terminate their employment if they return from sick pay but are unable to fulfill their duties for health reasons? In response to a reader question, Dr. Lawyer Mária Hajdu-Dudás responded.
The question was detailed as follows: My client would like to terminate his employee who has been on sick leave for almost a year. His entitlement to sick leave expires on May 12, 2023, but he will no longer be able to perform his duties after that and will go into rehabilitation. On which official form can the termination be made (by post, in person, etc.) and when can the termination period begin at the earliest? Based on the years worked, he is also entitled to a severance payment of two months and an additional notice period of 15 days, which will of course be paid to him.
ANSWER FROM OUR EXPERT
The starting point is that someone can no longer earn even if they are no longer entitled to sick pay. And the employer must pay attention to whether you can earn or not, not whether you receive benefits.
If you are unable to work, you must pay the health insurance contribution to the employee. And the employer has to wait until the doctor declares him fit for work.
And if he is able to work, then in this case the employer is obliged to send the employee for an occupational medical examination (that is, whether he can carry out his duties is decided by the company doctor).
If it turns out that he is suitable for carrying out his professional activity, in addition to the possible wage increase, he must also be hired in accordance with the content of his employment contract (reasons for termination may also exist). arise naturally, such as E.g. staff reductions, inappropriate rework, etc.).
And if the qualifications are not suitable, in this case the employer has the right to dismiss due to health unsuitability. However, he is no longer obliged to do so under the rules in force since January 1, 2023. According to Section 55 Paragraph 1 of Law I of 2012 to the Labor Code (MT.), the employee is exempt from fulfilling his standby and work obligations for the duration of his incapacity for work or is unable to do so for health reasons. to carry out his activity. In this case, he is not entitled to any compensation. It is a kind of quandary because the employment relationship continues, the employee cannot work, the employer cannot hire him, but neither party intervenes.
You can read Tax Zone’s previous articles on labor law HERE!
Termination can be made either by post with acknowledgment of receipt or in person. The notice period begins on the day following the notice of termination. Exception: Incapacity to work due to illness, in which case it begins on the day after one year after the end of the sick leave.
Of course, the reason for termination is not just medical unsuitability. If the employer has in the meantime e.g. B. if the number of employees is reduced or the employment relationship is actually terminated, this also represents a legal reason that can be communicated to the employee now.
The rehabilitation process can begin independently; it is not the responsibility of the employer. Its importance lies in the fact that the employer can terminate the employment relationship of an employee who receives rehabilitation allowance or rehabilitation benefit, taking into account the employee’s performance, for health reasons, giving reasons if the employee cannot be employed in his original position and the employee from From a health perspective, the employee cannot offer a job that is suitable for their condition or the employee does not accept the job offered without a good reason.
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