The answer to the question about dismissal during the period of sick leave depends on whether the employee himself wanted to quit or whether the employer made such a decision. unilaterally.
Dismissal of an employee on sick leave at the initiative of the employer
IN Labor Code it is expressly stated that the dismissal of an employee on sick leave at the initiative of the employer is prohibited (Article 81 of the Labor Code of the Russian Federation). The only exception is the situation when the employer himself ceases its activities (the company is liquidated or the individual entrepreneur “winds up” the business).
What awaits an employer who has fired an employee on sick leave on his own initiative?
If the employer realizes that he acted unlawfully and reinstates the dismissed employee no later than the day when he is declared fit for work by a doctor, the employee is paid sick leave benefits and continues to work as usual. Those. There are no negative consequences for the employer.
The worst option would be if the employee goes to court with a claim for illegal dismissal. Judges, as a rule, take the side of workers in such situations. As a result, the employer will have to reinstate the employee by paying him for the time of forced absence at the average salary and compensating for moral damages (Article 237, Article 394 of the Labor Code of the Russian Federation).
Dismissal of an employee who is on sick leave threatens the employer and its officials with administrative liability (Parts 1 and 2 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation):
For employer officials - a warning or a fine in the amount of 1,000 rubles to 5,000 rubles;
For an individual entrepreneur - a fine from 1,000 rubles to 5,000 rubles;
For an employer-organization - a fine from 30,000 rubles to 50,000 rubles.
Dismissal for absenteeism
Sometimes workers are fired because they do not report their illness, and the employer regards their absence from work as absenteeism. In this regard, many employers have a question: is the employee obliged to inform the employer about sick leave? So, the employee has no such obligation. Therefore, in order to protect itself, it makes sense for the employer to make efforts to find out the reason for the employee’s absence (for example, try to reach the employee or his relatives). After all, it happens that he would be happy to report that he is sick, but he simply physically cannot do this (for example, after an accident he is unconscious).
Downsizing and liquidation are not the same thing for hospital purposes
If the employer does not plan to completely close down the activity, but is only reducing staff for some reason, then laying off an employee who is on sick leave is again illegal. True, if we are talking, for example, about closing only separate division located in a different area than the parent organization, then reduction (dismissal) of the sick employee is possible. After all, the closure of such an OP is equivalent to liquidation (Article 81 of the Labor Code of the Russian Federation).
Dismissal during sick leave, if the employee decided to part with the employer himself
In this case, the dismissal of the employee does not threaten the employer with any consequences. negative consequences. After all, the employee decided to quit at will. And if, for example, on the day of dismissal the employee went on sick leave, then he still needs to be fired on that very day. Of course, if the employee has not withdrawn his resignation letter (
The Labor Code of the Russian Federation provides for various: at the initiative of the employer, at the initiative of the employee, by agreement of the parties, etc. (Article 77 of the Labor Code of the Russian Federation). During a period of temporary incapacity for work, an employee can also be fired. But not in all cases.
Dismissal during sick leave at the initiative of the employer
The employer does not have the right to fire an employee with whom an open-ended employment contract is concluded during a period of temporary incapacity. An exception is the case when the organization is liquidated or the entrepreneur-employer ceases its activities (Article 81 of the Labor Code of the Russian Federation).
But if an employment contract was concluded with an employee for a certain period, and this period expires during the employee’s illness, then dismissal on sick leave is possible. Moreover, despite the employee’s absence from work, he will still need to be notified in writing about the upcoming dismissal due to the expiration of the contract at least 3 calendar days in advance (Article 79 of the Labor Code of the Russian Federation). To do this, you can, for example, send him a message by mail.
On the date of dismissal of an employee who is on sick leave, you will need to issue an order and make an entry about the dismissal in the employee’s work book and personal card (Article 84.1 of the Labor Code of the Russian Federation). And also transfer to the employee wages and other payments due to a bank card. A note must be made on the order that the employee is not familiar with it due to his absence from work on the day of dismissal. In addition, it is necessary to send a notice to the employee that he must pick up the work book or can agree to receive it by mail.
The employee will need to pay for sick leave after he submits it to the accounting department. In this case, temporary disability benefits must be paid for the entire period of the employee’s illness, taking into account his length of service (Part 1.4 of Article 6, Part 1 of Article 7 of the Law of December 29, 2006 N 255-FZ). The rule limiting benefits based on 60% of average earnings does not apply, since temporary disability occurred before the date of dismissal (Part 2, Article 7 of Law No. 255-FZ of December 29, 2006).
Dismissal on sick leave at your own request
Quitting at your own request while on sick leave is a life situation. Suppose an employee wrote a letter of resignation and then fell ill. The employer has the right to fire him during sick leave, because in this case, the contract is terminated at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation).
At the same time, the dismissal of an employee who is on sick leave must be formalized on the date indicated in the application, or on the date on which the last day of the employee’s two-week “work” falls (Letter of Rostrud dated 09/05/2006 N 1551-6).
Dismissal of an employee on sick leave by agreement of the parties
Frequently asked question on HR forums - how to fire an employee on sick leave. Since dismissal during sick leave at the initiative of the employer is unacceptable, dismissal remains by agreement of the parties. After all, on this basis, the contract can be terminated at any time (Article 78 of the Labor Code of the Russian Federation).
The employee’s benefit is that in addition to salary and compensation for unused vacation, the agreement may provide for the payment of severance pay to him. Its size is limited only for employees holding certain positions: managers, their deputies, chief accountants (Article 349.3 of the Labor Code of the Russian Federation). In other cases, the specific amount is established by agreement between the employee and the employer.
When dismissing by agreement of the parties during sick leave, it is extremely important to obtain written consent from the employee for such dismissal. Confirmation that consent has been received can be either the agreement itself, drawn up before the date of dismissal and signed by both the employee and the employer, or the employee’s statement of consent to terminate the contract by agreement of the parties.
We have provided a form and a sample for filling out an application for dismissal of an employee on sick leave.
2018-11-29T19:54:51+00:00
In what cases does an employer have the right to dismiss an employee at his own request during sick leave? Is it possible to terminate the employment relationship with an employee during illness on the initiative of the employer. How to write a letter of resignation if a certificate of incapacity for work has been opened, the procedure for dismissing an employee under labor law who is on sick leave
The Labor Code does not prohibit the dismissal of a person during sick leave, provided that this is the desire of the employee himself.
What should an employer do if an employee submitted a resignation letter of his own free will and went on sick leave?
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If there is a voluntary dismissal during sick leave, then the main task of the organization is to prepare all the documents correctly. In addition, you need to make sure that termination of the contract will be legal. Dismissal of a person in his absence from the workplace is possible only in certain cases.
General provisions
Termination of labor relations at the request of the worker is regulated by Article 80 of the Labor Code of the Russian Federation. It says the following:
- Any worker has the opportunity to stop labor Relations with the organization unilaterally.
- You must notify your intention to terminate your employment relationship no later than 14 days in advance. In separately specified cases, this period can be reduced to three days, or it may be absent altogether.
- If management does not insist on working off the job, then the person can leave work on the day the application is submitted.
- A resigning person has the right to change his decision at any time, before the termination of his employment obligations, even on the last day of going to work. An exception will be the case when another person has already been invited to the position by way of transfer.
- Even if on the last day of action employment contract documents for dismissal have not been completed; a person has the right to stop performing labor functions starting from the day following the day indicated in his application.
- On the last day of work, the former employee must be given the work book and a full payment must be made.
Neither this article of the Labor Code of the Russian Federation, nor other acts of labor legislation indicate that a person cannot be fired at his own request if he is not present at the workplace. Accordingly, it is possible to resign on sick leave at your own request.
When can you quit?
Let's consider a situation: a person filed a resignation letter of his own free will. But a few days before the day of dismissal, he went on sick leave. And on the last day on your own workplace he didn't come out.
What should a manager do, does he have the right to dismiss an employee on sick leave? Yes, if the employee has not expressed a desire to cancel his application. Being on sick leave will in no way affect voluntary dismissal. After all, this is the personal initiative of the employee himself. And the Labor Code of the Russian Federation prohibits dismissing an absent person if the initiative comes from the management of the enterprise.
Therefore, a sick person has the right to expect that he will be fired on the day specified in his application. They will also transfer the final payment (excluding payment for temporary disability) and issue a work book filled out in the prescribed manner.
Dismissal during illness
Let's consider the question - is it possible to resign during sick leave at your own request? Another nuance that may raise questions is a situation when a person falls ill and only then brings his application. Should the employer accept such a statement? How to resign correctly in this case? Labor legislation does not regulate this situation in any way. Accordingly, a person has every right to submit an application while on sick leave.
In this case, the processing time will remain unchanged. The application must be submitted no later than 14 days before the expected date of termination of the employment relationship. This period can be reduced in the following cases:
- The person leaving is on probationary period or a fixed-term employment contract has been concluded with him. In this case, the warning period is reduced to three days.
- A person has the right to resign on the day the application is written. This is possible if a person has entered full-time study, is drafted into the armed forces, retires, etc.
- The head of the organization agrees to shorten the warning period.
These rules apply in any situation.
Refusal to accept resignation letter
What to do if an employer refuses to accept an application from a sick employee, citing the fact that this moment the person does not fulfill his job duties and should not be at work.
In this case, you need to do the following:
- Draw up the document in two copies.
- Register it with the secretary.
- The employee must keep one copy and there must be a mark on it that the document has been accepted and the date of acceptance.
If a company representative refuses to register a document, you can send an application by mail. It is better to do this not just by registered mail, but by sending it with an inventory. In this case, the sender will have in his hands a document confirming that the envelope actually contained an application for dismissal at the initiative of the employee.
Otherwise, the employer may claim that the letter did not contain any document, or that it was a paper containing other information and not a letter of resignation. It must be borne in mind that this method extends the working period. The regulated 14 days will begin to count only from the moment the employer receives the letter.
Working off
In the Labor Code of the Russian Federation, the notice period for dismissal is set in calendar days.
Fact
The working period begins to count the next day after submitting the application. The fourteenth day is also the day the work ends.
But at the same time, not a single regulatory act states that during the warning period the employee must fulfill his work duties. Accordingly, if an employee is dismissed while on sick leave, the employer does not have the right to demand an extension of the notice period. As, for example, this happens with a probationary period.
This means that the manager’s demand for work after the end of the illness is unlawful. This is true for a situation where the day of dismissal falls during a period of illness.
If a person who has expressed a desire to resign during illness ends up with a certificate of incapacity for work before the date of dismissal, he is obliged to return to the workplace.
This rule can create unpleasant situations for the employer. If an employee is on sick leave, the employer cannot force him to come to work to hand over official documentation. Even if there are shortcomings in the documents. An exception is the situation when the employee is a financially responsible person or especially important documents are handed over to him for signature (strict reporting forms, originals of statutory documents, etc.).
The procedure for dismissing an absent employee at his request
Dismissal of an employee on sick leave in 2018 will occur as follows:
- The employer is preparing a dismissal order. The order is issued in the usual manner. As a rule, the T-8 or T-8a form is used. But you can also draw up a document on a form developed by the company. There is no need to note in the order that the termination of the employment relationship occurs during a period of incapacity for work and the employee is absent from the workplace. The reason is stated in paragraph 3 of Article 77 of the Labor Code of the Russian Federation.
- The final payment is made. Days when the employee is sick will not be included in this calculation. The employer will pay for them after the employee brings him a certificate of incapacity for work.
- A work book is drawn up. Termination of the contract occurs while the employee is on sick leave, which means he will not be able to receive it on time. In order to protect yourself from possible claims from the dismissed person, the personnel officer needs to send the sick employee an information letter about the need to come for a work book.
Sick leave benefits are issued to a dismissed employee in the usual manner. Accrual occurs within three days from the date of receipt of the slip, and payment is made on the next salary date.
Payment of sick leave to a dismissed employee
The employer pays sick leave in the usual manner:
- The amount of the benefit will depend on the length of service.
- To calculate the base for sick leave, the two previous calendar years are taken.
- The employer pays for three days of sickness, the rest of the benefit comes from the Social Insurance Fund.
All sick days are subject to payment: both those that occur before the date of dismissal, and those that occur during the period when the person is no longer an employee of the company.
Is it necessary to confirm that the employee is actually sick?
The manager cannot demand confirmation from a person that he is sick until the certificate of incapacity for work is closed. Moreover, the legislation does not oblige the sick person to report that he is sick. This responsibility can be reflected in the company’s local documents.
To make sure that the dismissed employee is actually sick, you can contact a medical institution.
Additional grounds for dismissal
On what other grounds is dismissal possible while on sick leave? As noted above, the legislator establishes a ban on the dismissal of a worker who is on the ballot only if the initiative comes from the company’s management.
This means that a sick person can be fired not only at his request, but also for reasons beyond the control of the parties. Or, on the contrary, on the basis that is possible if both parties come to an agreement.
This includes cases:
- End of the employment relationship.
- Death of an employee or employer classified as an individual entrepreneur.
- Prohibition for medical or other reasons from holding a position and lack of possibility of transfer.
- Agreement between the parties.
Let's take a closer look at various situations of dismissal in the absence of a person at the workplace:
- The employee's initiative, that is, his own desire. In this case, the procedure for terminating the contract is carried out as usual. The employee is fired on the date specified in his application, even if he is absent on that day.
- Long-term disability. Labor legislation preserves a sick person’s job. Therefore, a long-term illness cannot become a basis for terminating the employment relationship. Accordingly, if an employee does not express a desire to leave on his own initiative during a long illness (or did not express it before its onset), he cannot be fired. The only thing an employer can do if an employee is often sick or his sick leave lasts long enough is to send the person to work. medical examination, in order to determine the employee’s suitability for the position held.
- Liquidation of the enterprise. This is an exceptional case when a sick person can be fired in his absence from the workplace. In this case, he will receive temporary disability benefits from the Social Insurance Fund.
- Staff reduction. In this case, dismissal of the absent person is impossible. If the employer has carried out the entire layoff procedure and the last day of work falls during the person’s absence, then the dismissal is postponed to the first day the person returns to work.
- For absenteeism. The law does not allow dismissing people at the initiative of the employer if they are absent from the workplace (except for liquidation). Moreover, the employer does not have the right to classify an employee’s absence as absenteeism until this is established by an internal audit. Before this, the code “nn” is entered on the report card - failure to appear for unknown reasons.
Employer's liability
The legislator prohibits the dismissal of a person on sick leave at the initiative of the employer. If the latter violates this rule of law, the employee can challenge the termination of the employment contract. This is especially true when staffing is reduced.
In addition to reinstating the person to the workplace and paying for forced absences, the employer is subject to a fine. Fine for legal entity varies between 30,000 - 50,000 rubles. If an official or an individual entrepreneur is punished, the amount of the fine is much less, 1000 - 5000 rubles.
FAQ
What is the date to dismiss a sick employee?
The order to terminate the contract will contain the date that the person indicated in his application. That is, this date will not shift by the number of days on the ballot, even if it falls during the period of incapacity for work.
Is the employer required to pay for a ballot that began after the employee left?
According to current legislation, a person has the right to receive benefits from a former employer if the period of incapacity for work began within 30 days from the date of termination of contractual obligations.
What will be the entry in the work book if a person was fired during his absence?
When filling out the work book, there is no need to note that the termination of the contract occurred during the person’s absence. The grounds for dismissal are entered in accordance with the Labor Code of the Russian Federation (own desire, agreement of the parties, etc.).
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There are often cases when, for one reason or another, it is necessary to terminate the employment relationship with a worker, and this can also happen while the employee is on sick leave. In such a situation, how can one properly dismiss a worker and accrue the required compensation payments?
Resigning during sick leave at our own request
An employee may terminate his employment relationship with the employer on his own initiative by notifying him of this in writing at least 2 weeks before the day of dismissal. This period begins to count from the next day after the employer is notified of dismissal (Article 80 of the Labor Code of the Russian Federation). If an employee goes on sick leave during this two-week period, then his illness does not act as an obstacle to dismissal. The same applies to termination of employment relationships by agreement of the parties.
Important! During illness, the employee will be dismissed on the day specified in his application without additional work (letter of Rostrud No. 1551-6 dated 09/05/2006) and the employer cannot independently make changes to the date of dismissal. The employee himself has the right to do this - he can cancel the application or write another date while on sick leave.
This procedure is carried out by mail, for example, if an employee cannot come to work due to illness. When the employee recovers before the date of dismissal, then it occurs in accordance with the application.
If on the day of dismissal the employee is on sick leave:
- the employer indicates that he cannot inform the employee of the contents of the document and record his signature, because he is on sick leave;
- the employer must send the employee notice of the need to obtain Money(salary, required compensation, allowances, additional payments), as well as a work book or obtain permission to send it by mail (Article 84.1 of the Labor Code of the Russian Federation). Starting from the day of sending such notice, the employer is not responsible for the late receipt of the work book by the employee.
Important! Employment history must be received by the employee on the day of dismissal specified earlier in the application. If he is temporarily disabled, then paragraph 2 above applies.
An employee may resign on his own initiative while on sick leave. He has the right to send the application to work by mail or take it himself if his health condition allows.
Thus, the 14 days that the employee must work in connection with dismissal will pass during his sick leave, if the period of illness exceeds these two weeks, otherwise the employee will spend the rest of the work period at work. The employee must immediately and can bring the certificate of incapacity for work (sick leave) issued by the medical institution to work after dismissal in order to receive temporary disability benefits.
Dismissal on sick leave at the initiative of the employer
Following Art. 81 of the Labor Code of the Russian Federation, the employer does not have the right to terminate the employment relationship with an employee on his own initiative when he is on sick leave or on vacation.
This can only be done under the following exceptions:
- at ;
- when closing the IP.
When the termination of an employment contract is carried out at the request of the employer and the employee is on sick leave that day, then it will be necessary to wait until he returns from sick leave to formalize the dismissal. Dismissal may occur on the first day of release. This also applies to dismissal as a result of staff reduction.
Important! If an employee is on sick leave for a long period and there is no one to work with, then the employer can register another person according to (Article 59 of the Labor Code of the Russian Federation), maintaining the wording “until the main employee leaves.”
Payments for temporary sick leave (sick leave)
Sick leave benefits are accrued to employees both during the employment relationship and when this relationship is terminated (Article 5 of Law No. 255-FZ of December 29, 2006).
1) If sick leave (sick leave) was opened after dismissal. This means that the person fell ill after his dismissal. For example, the date of dismissal is April 15, and the certificate of incapacity for work says “I was in the hospital from April 18 to May 3 inclusive,” i.e., April 18 is the opening day of sick leave, and May 3 is the day it closes:
The employer under such sick leave is obliged to pay the resigned employee if he fell ill within 30 calendar days from the date of dismissal - in this case, he fell ill on the 3rd day after dismissal, and the duration of the illness and the reason for leaving do not play a role.
Payment is made at the last place of work for the entire period of illness from the first to last day(exceptions – part 3, part 4, article 6 of Law No. 255-FZ) and is 60% of average earnings (part 2, article 5, part 2, article 7 of Law No. 255-FZ). The initial 3 days are paid by the insurer (i.e. the employer), the rest - by the Social Insurance Fund.
The benefit is assigned if the employee applied for it no later than 6 months from the date of restoration of working capacity (Part 1, Article 12 of Law No. 255-FZ). In the case described above, the day of restoration of working capacity is considered to be May 4, we count 6 months from May 4 - November 4 is the last day on which the employee can apply for benefits.
If this period was missed by the employee for valid reasons with evidence, then the decision to accrue benefits rests with territorial body insurer (FSS) - Order No. 74 of January 31, 2007 of the Ministry of Health and Social Development of Russia. The same body pays benefits in case of closure of an enterprise or lack of money in its current accounts. Working part-time, the employee will receive benefits for each place of work or for the last of them (Article 13 of Law No. 255-FZ).
Important! When will the employee receive benefits? The employee will receive the sick leave benefit accrued by the accounting department on the day the salary is issued - this is either the day of full payment of the salary, or the day of the advance payment in the organization (IP), so on the nearest of these days the employee will receive the money minus income tax.
2) Sick leave was opened before the termination of the employment contract:
In this situation, the benefit is calculated and paid from the beginning of the sick leave to the day it ends, inclusive, in the same amount as if there had been no termination of the employment contract, i.e. full. The basis for accrual and payment is a correctly executed sick leave certificate.
Important! Payment for sick leave opened during the period of the employment contract is made on a general basis even when the worker quits by the date of its closure.
When calculating benefits, the employee’s insurance length is taken into account (Clause 1, Article 7 of Law No. 255-FZ)
Is it possible to fire someone who is on sick leave? employee- the question is ambiguous. Let's study how it is regulated by labor legislation and considered in legal disputes.
Is it possible to dismiss an employee during sick leave at the initiative of the employer?
Is it possible to fire someone on sick leave? employee and on what basis? It all depends on whose initiative it is - the employee or the company.
IN labor legislation There are no rules in the Russian Federation that allow an employer, on his own initiative, to dismiss while on sick leave full-time employee. The only ones legal options To terminate an employment relationship with a person who has gone on sick leave can be:
- dismissal by agreement of the parties;
- termination of an employment contract at the request of an employee who wishes to resign.
Certain specifics characterize the legal consequences of an employer’s decision to reduce staff in a situation where a person goes on sick leave. Let's study this nuance in more detail.
Can a person be fired due to redundancy while he is on sick leave?
Really, Is it possible to fire a person on sick leave?, if he somehow has to be fired due to downsizing?
Dismissal as part of a reduction is a procedure initiated by the employer. An employee, unless otherwise expressly prescribed by law, in general case does not have the opportunity to prevent layoffs (but also receives sufficient preferences - in the form of a good severance pay).
However, one of the cases when an employee who has been laid off cannot be fired is when he is on sick leave. While he is being treated, the company does not have the right to lay him off (that is, remove the position held by the employee from the staffing table) and, as a result, fire him.
Accordingly, as long as the employee is on staff, he is paid sick leave - in the same amount as if he were not subject to reduction.
However, as soon as a person returns to work from sick leave, the legal consequences of the employer’s decision to lay off may occur. In this case, the moment of opening and closing the sick leave plays a role.
Opening and closing sick leave: what do they affect upon dismissal?
When considering the relationship between sick leave and dismissal, one should fundamentally separate two legal mechanisms (employer obligations):
- to keep an employee on staff while he is on sick leave;
- payment of sick leave to an employee.
The implementation of these mechanisms is not always the same. The fact is that an employee who resigned for one reason or another (including layoffs) and fell ill within 30 days after dismissal has the right to claim compensation for sick leave from the former employer. True, it is paid in a smaller amount.
Thus, a person who falls ill after a layoff will not be on the payroll for 30 days, but will receive sick pay.
However, if sick leave is open before the termination of the employment contract due to layoff (even on the employee’s last day of work), this circumstance immediately extends the validity of the employment contract for the duration of the sick leave. Dismissal of an employee on sick leave, even with staff reductions is impossible.
Moreover, as soon as the sick leave is closed, the legal consequences of the decision to lay off will begin. The recovered employee will have to go to the company’s personnel service and settle the formalities associated with his dismissal.
While on sick leave, the employee was fired: legal consequences
What should an employee do if, while he was on sick leave, his employer fired him? Can they be fired while on sick leave? a person who has been laid off?
If the legislation is read literally, we will be talking about a direct violation of the norms labor law RF. Dismissal of an employee on sick leave, as we already know, is not allowed by law.
First of all, the employee needs to contact the Labor Inspectorate with documents confirming that he was on sick leave on the date of dismissal, as well as documents certifying the fact of dismissal. If the violation is obvious to the department’s specialists, they will issue an order to the employer to reinstate the employee in his position (with payment of salary for downtime).
IMPORTANT! The instructions of the Labor Inspectorate are mandatory. If the company ignores them (does not fulfill them within the prescribed period), the department will have grounds for an unscheduled inspection of its activities.
Another option is when the employer allows dismissal of an employee on sick leave, - going to court. Its advantage lies primarily in the ability to recover moral damages from the employer (not counting wage charges). Let's consider how large the corresponding amount can be, as well as what is the likelihood of its award.
Dismissal while an employee is on sick leave: judicial practice
The precedent reflected in the cassation ruling of the Moscow City Court dated July 22, 2010 No. 33-22024/10 is noteworthy. The employee, having learned about the upcoming layoff, attempted to resign early due to the layoff in the manner prescribed by Art. 180 Labor Code of the Russian Federation. But the employer each time refused to accept his statement of consent to early dismissal.
One day (at that time, the 2-month period from the date of notification of the employee about the layoff had not yet passed), the employee fell ill and left work about 1.5 hours early due to poor health. I immediately went to the doctor and took out sick leave. The employer, however, fired him for absenteeism and did not reinstate him even after sick leave was granted.
Can an employee who is on sick leave be fired?, for absenteeism, according to the courts?
This procedure is highly likely to be considered illegal. The court in this dispute ruled that the employer’s actions were unlawful because:
- at the time of dismissal the person was on sick leave;
- there was no evidence that the employee deliberately concealed his illness;
- Leaving work 1.5 hours early is not considered absenteeism.
As a result, the employer was charged:
- amount for forced absenteeism of a dismissed employee (more than RUB 399,000);
- compensation for moral damage (RUB 5,000).
Can a person who is on sick leave be fired? for late submission of a certificate of incapacity for work to the employer?
The answer to this question is reflected in the ruling of the Moscow Solbsud dated January 25, 2012 No. 33-601/2012. There also we're talking about about dismissal of an employee on sick leave.
The employee was laid off. He was warned 2 months earlier, but the employer committed a number of violations (discovered by a literal reading of the Labor Code of the Russian Federation):
- did not offer the employee alternative vacancies;
- did not provide the employee with a work book immediately after layoff;
- dismissed an employee while on sick leave.
In connection with these circumstances, the employee filed a lawsuit against the company, demanding reinstatement at work, compensation for simple and moral damage. The court of first instance, notably, sided with the employer because:
- the employee was not offered any vacancies due to the lack of any (this was confirmed staffing table companies);
- the employee, according to the court, used sick leave, abusing his own right, without informing the employer that he was going on sick leave (with his knowledge that a reduction would be made during the period of sick leave).
In addition, the court took into account that after leaving sick leave worker did not show up for work, but went to another area for a month, that is, he did not immediately provide a certificate of incapacity for work.
The cassation upheld the decision of the trial court.
Thus, then Can they be fired while on sick leave? full-time employee, is not in all cases determined by a direct reading of labor legislation.
Results
Dismissal while an employee is on sick leave is possible only with his personal consent or initiative. When open sick leave It is impossible to lay off an employee.
But if an employee abuses the right to protection from dismissal during layoffs due to sick leave, the employer can fire him and prove his case in court. Thus, Is it possible to fire someone while on sick leave?, in many cases determined through detailed interpretation of labor laws.
You can learn more about employee dismissal issues from the following articles:
- ;
- .