Skrevet af
Long-term prospects
A municipality was justified in dismissing an employee due to the long-term prospects of her returning to work after sickness absence.
Skrevet af
Dorthea Bisgaard Vase
Forfattere
Sickness generally constitutes lawful absence. This means that dismissal due to sickness requires that the absence is an operational burden for the employer. In this case, which was heard by a dismissals tribunal, the umpire had to decide whether the sickness absence of an employee who had been employed for 18 years had an extent that justified dismissal.
The case concerned a recreation instructor who had been employed at a school for 18 years where she worked with pupils before, during as well as after school hours. The employee called in sick in August and after 2 months of sick leave – i.e. in October – the school management informed her that they were contemplating dismissal. At the time, the employee’s doctor had indicated that she would be on full-time sick leave for an additional 8-12 weeks after which she would be on part-time sick leave, gradually increasing her working hours, for at least 23 weeks.
The employee’s trade union brought the case before a dismissals tribunal, claiming that the dismissal was unfair as the employee’s sick leave was based on, among other things, the conditions at the workplace.
The employer submitted that the employee’s sick leave and the long-term prospects of her return to work caused considerable inconvenience to the day-to-day operations, especially because the employee performed special coordination tasks. The employer also disputed that the sick leave was caused by the conditions at the workplace.
Employer not partly responsible
The umpire stated that the employer’s dismissal of the employee was, as a clear starting point, justified based on the long-term prospects of her returning to work and the operational difficulties associated with this situation. In addition, the umpire noted that the employee had actually been on sick leave throughout the notice period until the end of April.
The umpire further stated that there was no basis for assuming that the employer was partly responsible for the employee’s sick leave. Accordingly, the dismissals tribunal found in favour of the employer.
Norrbom Vinding notes
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that the award – which is phrased in general terms with regard to this issue – confirms the general rule that an employee’s sick leave combined with long-term prospects of returning to work and operational inconvenience for the employer generally constitute justifiable grounds for dismissal;
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that this general rule applies even though the employee has been continuously employed for many years; and
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that this general rule can only be deviated from if the employee is able to prove, exceptionally, that the employer has engaged in reproachable behaviour that led to the sickness, which requires clear evidence of behaviour that goes beyond what is commonly seen in an employment relationship.
Norrbom Vinding represented the municipality in the case.
The content of the above is not, and should not be a substitute for legal advice.
Forfattere