THE DISMISSAL OF WORKERS IN A SITUATION OF DISEASE
This is a question that raises many doubts between the companies and that the judgments of the Courts resolve based on the cases in which we are. In general, it will depend on each specific case, but the following criteria must be taken into account in the event that the company plans to fire an employee who is on sick leave:
1. - Correct dismissal:
a) If the worker hinders his healing: In the event that the worker does during low activities that hinder or prevent his healing. The company must know the cause of the termination and try these incompatible activities. This would be the case, for example, of the worker leaving for a low back pain who is doing sports activities or requires physical exertion.
b) Simulation sick leave: In the event that the employee undertakes activities during the leave proving that he is in a physical condition to perform the functions inherent in his job. It is about the employee who is on leave doing activities similar to what he does for the company.
c) Accumulation of casualties: This is the most controversial assumption. This is dismissal when the worker accumulates sick leave due to absence from work for 20% of workdays for two months, if the total absence of the worker in the previous 12 months reaches 5 % of working days. In this case, the worker will have to be compensated with compensation equal to 20 days' salary per year worked. Remember that casualties longer than 20 days are not counted.
d) Dismissal due to the consequences: The worker may be fired in the event that the illness he has suffered has caused a definite deterioration of his physical or mental faculties to perform the functions of his job. In this case, the worker will also have the right to receive the compensation of 20 days of salary per year worked.
2. - Improper dismissal:
In all cases that the company fires a worker on sick leave and does not properly justify the reason for the dismissal, this will be considered inadmissible and the worker will have the right to receive a compensation of 33 days of salary per year worked.
3. - Null dismissal:
From various judgments of the Court of Justice of the European Union, already collected by the Spanish Courts, the dismissal of the worker in the event of sick leave will be invalid in the following cases:
a) Long-term casualties
b) Indications at the time of dismissal that the leave will be long and that the company knows about it and that there is no other reason for dismissal.
In all these cases, the company must readmit the employee and pay the processing wages.