Contrary to popular belief, the possibility to dismiss an employee during sick leave is possible, as there is no special labor protection in this regard. You can dismiss a worker provided that there is cause for it, and if it there is not, the employer would be obliged to pay a certain compensation for the unfair dismissal to the ex-employee.
There are a number of assumptions to declare a dismissal null/void, which would lead to the reinstatement of the worker in his position in addition to the payment of all outstanding wages until reinstatement. First, the dismissal shall be considered null/void if the employee requested reduced working hours or leave to take care of a child or a family member with a serious illness, as well as during periods of pregnancy or maternity suspension. Also dismissal which could be considered a violation of fundamental rights of the employee shall be considered null, although the labor law does not consider health as a fundamental right when it refers to sick leave for temporary disability. Finally, and under the law of indemnity worker, all dismissals they may occur because of the claim of a worker to the company, whether it is via court or not, will also be considered null.
The corresponding compensation for being fired depends on what comes written in the letter of dismissal, since it is unusual, unless the company makes a mistake, to report the dismissal of a worker due to a situation of temporary disability.
On the one hand, in the event of an objective dismissal, which is justified under economic, technical, organizational or production, the corresponding compensation is of twenty days per year, in addition to a notice by the company within 15 days. It will also be considered an objective dismissal if the employee present justified though intermittent leaves, which reaches a 20% of the working days in two consecutive months, provided that the total of faults corresponds to a 5% of the working days of the previous twelve months; or alternatively, when absent from work for a 25% of four discontinuous months during the period of one year.
On the other hand, in the case of disciplinary dismissals, an employee will be fired in the event of major bad behaviour, and will not be provided with compensation, nor forewarning. However, in the event that the worker is off duty due to a short-term disability, it is very difficult to justify.
As for workers’ rights, they may inquire for the letter of dismissal to be considered improper within twenty working days after the notification of the fact. If considered so, the worker will be compensated in the same manner as in a null dismissal; in the case of contracts signed before 2012 to 45 days per year, and subsequent contracts to 33 days per year.
In the event that the company recognized the unfair dismissal before the employee sues it in court, a labor concilliation ballot can be provided to the employee to present to the SMAC to reach an agreement on the day of settlement.
As a remarkable fact, in the case of temporary contracts, the employer is not obliged to pay the remaining time of the contract in case of firing the employee before the end of the period, but provide the individual within a compensation according to the worker’s seniority in the company and the salary he received at the time.
If being fired, we recommend contacting one of the labor consultants DAEMI ZABALZA & ASSOCIATES, who due to their vast experience in the field, can advise and inform you of your rights, and to defend your interests against unfair situations.
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