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The Eastern High Court found that a termination letter sent to an employee on the 120th day of illness, but after the end of the employee’s normal working hours, complied with the 120-day rule.
Written by
Dorthea Bisgaard Vase
Forfattere
An employer may agree with a salaried employee that termination can take place with one month’s notice to the end of a month if the salaried employee has received pay during illness for 120 days within the last 12 consecutive months, provided that the termination is effected in immediate connection with the expiry of the 120 sick days and while the salaried employee is still ill.
In this case, the Eastern High Court had to decide whether a termination letter sent by mail on a salaried employee’s 120th day of illness, but after the end of the normal working hours, fulfilled the requirement of the 120-day rule that the employee must have been ill for 120 days at the time of termination.
On 7 February, the salaried employee, who was employed as a sales manager, went on sick leave due to stress and depression. The sales manager resumed work in mid-April, but in May she went on sick leave again. The sales manager normally worked from 8:30-15:00. On 7 June at 13:42 – which was the 120th day of illness – the sales manager was notified in her PostNord app that the employer had arranged for a letter to be sent to her. The letter was handed over to PostNord at 16:41 on the same day. On 9 June, i.e. the sales manager’s 122nd day of illness, she received the letter which was a termination letter.
The sales manager brought an action against the employer, claiming that she was entitled to salary during her normal notice period because the requirements for termination under the 120-day rule were not met as she had been given notice of termination before the expiry of the 120th day of illness.
The employer, however, believed that notice of termination had been given on the 122nd day of illness, as it was on that day that the termination letter had reached the sales manager. Thus, according to the employer, notice of termination was given in immediate connection with the 120th day of illness, but after the expiry of that day, and the requirements of the 120-day rule were therefore met.
Letter was sent after working hours
The district court found in favour of the employer. Subsequently, the sales manager appealed the case to the high court.
The Eastern High Court upheld the district court’s decision. In its ruling, the High Court emphasised that the sales manager’s normal working hours were between 8:30 and 15:00. As the employer had handed in the termination letter to PostNord on the 120th day of illness at 16:41, notice of termination had been given after the expiry of the 120th day of illness.
In this context, it did not matter that the sales manager had worked a total of 40 overtime hours after 20:00 in a preceding period of 3-4 months. Notwithstanding the overtime, the sales manager’s normal working hours were decisive for determining when the 120th day of illness was considered to have expired.
The sales manager and her trade union have applied to the Appeals Permission Board for leave to appeal the case to the Supreme Court.
Norrbom Vinding notes:
The ruling shows that termination of employment under the 120-day rule can take place on the 120th day of illness as long as the notice is given after the expiry of the employee’s normal working hours on that day.
The ruling also illustrates that, as a clear starting point, the 120th day of illness is considered to expire at the end of the employee’s normal working hours, irrespective of whether the employee in a preceding period has worked a considerable amount of overtime after the normal working hours and irrespective of whether the overtime is imposed by a manager.
The content of the above is not, and should not be a substitute for legal advice.
Forfattere