Dismissal during illness versus dismissal due to illness
The employment contract of a sick employee can (despite the prohibition on giving notice during illness) be dissolved by the subdistrict court. That is, if (a) there is a legal ground for dismissal (for example, a disturbed working relationship or dysfunction) and (b) the request for dissolution is not related to the illness.
Dismissal not related to illness
When is there no connection? In practice, this connection is interpreted differently by judges. Ranging from no connection, secondary connection, sufficient connection, to even decisive connection.
An employer had better take a safe course. And explain that and why the facts and grounds on which a request for dissolution is based, are completely separate (can be abstracted) from the employee’s disability.
Example 1: no dismissal due to illness
An employee is dysfunctional in the opinion of the employer. The employee disagrees. During an improvement process initiated by the employer, the employment relationship becomes seriously and permanently disturbed. As a result, the employee becomes unfit for work.
In this example, there is first a disturbed working relationship and then disability. For this reason, there is no connection between a request for dissolution to be filed by the employer and the circumstances covered by the prohibition on notice. Unless the employee’s conduct that led to the disrupted employment relationship was the result of the employee’s incapacity for work
Example 2: yes dismissal due to illness
Employer and employee have a disagreement about the employee’s disability. The working relationship becomes disturbed as a result.
A request by the employer to dissolve the employment contract will not be successful in this case. After all, the disturbed working relationship is not completely unrelated to the disability.
Exception to ban on notice during illness
When a sick employee does not fulfill his reintegration obligations, even after the employer has stopped paying wages for that reason, the employment contract with the employee can be dissolved. While in that situation, the dissolution request is not independent of the employee’s disability.
Address and address potential grounds for dismissal in a timely manner
It is up to the employer to make it plausible that the facts and grounds of a dissolution request are completely unrelated to the employee’s disability. It is important (also) for this reason, that the employer addresses, addresses and documents a situation of dysfunction or a disturbed working relationship in a timely manner.
More information about dismissal during illness versus due to illness?
If you have any questions about this article or about this topic, please contact Peter Verheijden, employment law attorney at LVH Advocaten.
