An employee's illness does not always protect against dismissal


An employee is a person who is compulsorily covered by sickness insurance. Illness is a period of temporary inability to work. Employees during the period of illness have a number of rights, but their situation is varied and determined by numerous factors. An employee's illness does not always prevent him from being dismissed.

Employee's illness as a period of protection

If an employee has been employed for less than 6 months, he is generally protected for 90 days before the employer has the right to terminate the relationship. Employees who have been employed for more than six months are protected much longer.

A subordinate who:

  • he did not receive a rehabilitation benefit, he is protected for the period of receiving remuneration due to sickness (182 days). If the employee's illness is caused by tuberculosis or pregnancy - 270 days,
  • received a rehabilitation benefit (which may be collected for a maximum of 90 days), is protected for 272 (182 sick days + 90 rehabilitation days) or 360 (270 sick days + 90 rehabilitation days) days, respectively.

I didn't have time to recover, now what?

If, after the expiry of the above-mentioned Due to deadlines, the employee's illness continues and the employee is still incapable of work, his supervisor has the right to terminate the cooperation with immediate effect.

The solution for the worker is to apply for reinstatement after recovery. Immediately after the end of the sickness period, he should contact the former employer, and the former employer, if possible (technical, financial), should re-employ him.

It should be emphasized that an employee who has taken up employment as a result of being reinstated in the position is entitled to remuneration for the period of unemployment. Its size depends, among others, on from the notice period of the original employment contract.

Pursuant to article 47 of the Labor Code, an employee who has taken up work as a result of being reinstated is entitled to remuneration for the period of unemployment, but not more than 2 months, and if the notice period was 3 months - not more than 1 month. If the employment contract has been terminated with an employee referred to in art. 39, or with an employee during pregnancy or maternity leave, the remuneration is due for the entire time of being unemployed; this also applies in the case when the employment contract with the employee-father raising the child was terminated during the maternity leave or when the termination of the employment contract is limited by virtue of a special provision.

According to the judgment of the Provincial Administrative Court in Szczecin of January 20, 2010, file ref. no. II SA / Sz 1240/2009, the amount of remuneration due to the employee for the period of unemployment is limited to the amount equal to the remuneration for two months, when the notice period was shorter than three months, and when the notice period was three months - for one month.

There remains a judicial path

Unfortunately, despite Art. 53 of the Labor Code that protects sick employees in the event of liquidation or bankruptcy of the company, there are no longer provisions guaranteeing assistance. However, this applies to situations where bankruptcy / liquidation is a full-fledged process and not rumors of bad condition. In such situations, the employee's illness does not prevent his dismissal.

Dismissal of an employee who is on sick leave due to lack of funds for his maintenance may result in a lawsuit on his part. If the adjudicated termination of an employment contract concluded for an indefinite period was unfounded or inconsistent with the provisions on the termination of employment contracts, then it is possible to issue a judgment on the ineffectiveness of the termination and the necessity to reinstate the employee (under the conditions specified in the original employment contract) or the payment of compensation.

An employee who wants to return to work after such a process must report their readiness to perform their duties no later than 7 days from the court decision.