A question that every employer in Serbia has encountered at least once, and which (perhaps unjustifiably) creates great uncertainty, is whether the temporary incapacity for work (sick leave) of an employee is an obstacle to terminating the employment of such employee. In the following text, we will present the basic rules regarding this issue, which every employer should keep in mind.
I Is sick leave an obstacle to termination of the employment?
It's important to know that the fact that an employee is on sick leave does not constitute an obstacle to terminating the employment. In other words, there is no prohibition on terminating the employment of an employee who is temporarily unable to work, provided there are legal grounds for termination. What does this mean?
Firstly, it's crucial to understand that sick leave cannot be a reason for terminating the employment. The Labour Law explicitly states that "temporary inability to work due to illness, accident at work, or occupational disease" cannot be considered a justifiable reason for terminating the employment agreement. Therefore, for an employment to be terminated, there must be valid reasons as outlined in the Labour Law, internal company regulations, and/or the employment agreement, all of which must comply with the aforementioned law.
Many employees confuse the fact that sick leave cannot be a reason for termination of the employment, with the belief that their employment cannot be terminated while they are on sick leave. Consequently, some employees exploit this by feigning illness to avoid disciplinary action or termination, after they have broken work obligations or work discipline which would imply such consequences. Often, employers are misled into thinking they cannot terminate the employment of such employees, thus perpetuating this practice.
II Legally justified reasons for terminating the employment must be present
As explained above, the mere fact that an employee is on sick leave cannot constitute a reason for terminating the employment. However, if one of the legally justified reasons for termination of the employment exists before the sick leave is initiated, the employer is not prevented from acting in accordance with its authority and terminating the employment of this employee. However, in this case, it is crucial to precisely explain the factual situation and substantiate with evidence that the reason for termination of the employment occurred before the sick leave was initiated, to ensure unequivocal clarity that sick leave itself did not represent the reason for termination of the employment.
Also, it is possible that the reason for termination of the employment arises during sick leave, but unrelated to the fact of sick leave - for instance, if the employee breaches one of the contractual obligations, such as disclosing confidential information to an unauthorized person, resulting in termination of the employment as stipulated by their employment agreement. Hence, this wouldn't constitute an abuse of sick leave but rather a breach of the employee's obligations unrelated to sick leave.
Therefore, the situations addressed in this article are the ones in which the reason for termination of the employment arose before or during sick leave, but is not related to the fact of sick leave (it does not involve the abuse of sick leave as a specific termination reason - more in section III of this article).
In case of termination of the employment during sick leave, it is crucial that the documentation is impeccably drafted, in order to avoid the possibility for abuse of any ambiguity which would allow portraying sick leave as a concealed reason for termination of the employment. We advise seeking guidance from your attorney in delicate situations such as this one, as any mistake could result in losing a potential dispute with the employee, leading to significant consequences for the employer.
Since the employee does not physically come to the employer's premises during sick leave, it is essential to adhere to the precisely defined legal procedure regarding the delivery of termination documentation to the employee. In this regard, it is particularly important to be precise and act in accordance with the law, as any error in the delivery process is easily provable and may result in losing a potential legal dispute. (In one of the upcoming articles, we will delve into detail regarding the delivery process in cases where employment-related documentation cannot be personally handed to the employee.)
III Abuse of sick leave as a termination reason
Although sick leave itself is not a justified reason for terminating an employment, the abuse of sick leave constitutes a separate reason for termination by the employer, as provided by the Labor Law. However, in this article we are addressing the situations where the reasons for termination are unrelated to the sick leave itself, and not the situations where the abuse of the sick leave is the reason for termination. Proving sick leave abuse in practice is a delicate matter, so whether to pursue this course of action depends solely on the circumstances of each individual case.
IV Fixed-term employment ending during the sick leave?
If an employee has entered into a fixed-term employment, the employment relationship is terminated upon the expiration of the agreed period, regardless of sick leave (unless otherwise agreed by the employer and the employee). An exception to this rule applies to categories outlined in point V of this article, whose employment agreements are extended until the end of the leave.
In case of termination of the employment upon the expiry of the agreed term, the employer drafts a resolution on termination based on the expiration, which should be provided to the employee, in order to avoid any ambiguity.
V Special protection from termination
Contrary to sick leave, which is a temporary incapacity for work due to illness, work-related accident, or occupational disease, the facts of pregnancy, maternity leave, childcare leave, and leave for special childcare represent an obstacle to the termination of the employment. Therefore, if an employee is pregnant or is on leave related to pregnancy and childcare, the employer cannot terminate the employment during these circumstances, regardless of the reason.
As mentioned above, in the event that such an employee has concluded a fixed-term employment agreement, the employment relationship is extended until the expiration of the leave.
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If you have any further questions or uncertainties regarding this or other legal topics, feel free to contact us via email adress: office@r-legal.net.
Note: The information provided in this article is solely for informational purposes and does not constitute legal advice.
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