Illness and the job loss

Illness and the job loss

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Can the employer dismiss an employee during the protection period?

If the employee is unable to work due to illness, the employer cannot terminate the employment contract without notice. In other words – you cannot lose yor job because of illness. Nevertheless, this protection is not unlimited in time. After all, nothing can last forever.

How long does the protection period against job loss last?

This question is answered in art. 53 par. 1 point 1) of the Labour Code. It reads – as befits a lawyer – it depends… .

First of all, on how long the employee has been employed by the employer. And secondly, on what has caused the inability to work. An accident at work or an occupational disease.

And so:

(1) In the case of an employee employed for a given employer for less than 6 months – the protection lasts 3 months.

(2) In turn, in the case of an employee employed by a given employer for at least 6 months, the protection lasts as long as the period of receiving remuneration and sickness benefits, as well as rehabilitation benefit for the first 3 months. While the period of receiving remuneration and allowance is generally 182 days. If the inability to work was caused by tuberculosis or occurs during pregnancy – then 270 days. The same protection also applies if the incapacity to work was caused by an accident at work or an occupational disease. Even if the employment period is shorter than 6 months.

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Condition of extended protection (illness)

In the latter case, the extension of protection is subject to the condition. This condition consists in granting the employee a rehabilitation benefit. Starting from the first day after the end of the sickness benefit.

However, it may happen that the Social Insurance Institution did not manage to issue a final decision in this matter before the employee’s last day of receiving sickness benefit. Even though the employee submitted all necessary documents and applications on time. In practice, these are not isolated cases at all. Does the protection expire in such a situation? And therefore, in the event of further illness, can the employer dismiss the employee?

When the Social Insurance Institution is late with granting the benefit

This issue was the subject of examination by the Supreme Court, which in its judgement of March 26, 2009, in case reference number II PK 245/08, stated that the employer’s termination of the employment contract in the period between the employee’s exhaustion of the right to sickness benefit and the final decision of the disability pension authority regarding the rehabilitation benefit is lawful, unless the decision states that during this period the employee was entitled to a rehabilitation benefit.

In other words, if the Social Insurance Institution grants the rehabilitation benefit, even after the deadline, it is assumed that the protection persisted continuously. If, on the other hand, the Social Insurance Institution does not grant the benefit, it is assumed that protection has expired on the last day of the sickness benefit.

Illness and job loss – claims against the employer

So, if in the time preceding the Social Insurance Institution decision, the employer dismisses the employee, he would violate the provisions on terminating employment contracts. Thus, he would give the employee the basis to bring an action for reinstatement under previous conditions or for compensation (which is determined by the labour court).

The employee has only 21 days to act against the employer. This deadline starts from the date of delivery of the letter terminating his employment contract. Most importantly – the deadline runs regardless of whether at that time the Social Insurance Institution has already managed to grant the rehabilitation benefit or not. In the second of the abovementioned situations, consideration should be given to submitting an application for suspension of court proceedings until the end of the rehabilitation benefit proceedings.

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The next entry will present the issue of what exactly an employee can demand from an employer in the event that he terminates his employment contract or terminates his employment contract without notice in breach of the provisions in this respect, what dates are binding for the employee in this case, which costs the employee has to take into account when filing a claim against the employer in court, whether the court is always bound by the application submitted by the employee in the content of the appeal or whether it can modify it, and many others.

I wish you a pleasant reading.

Legal status as of October 2019

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