The Right to Dismiss an Employee for a Gross Violation of the Duty to Stay at Home When on Sick Leave

Last week the Constitutional Court addressed a motion filed by a group of MPs who demanded cancellation of a particular provision of the Labour Code, claiming that it is unconstitutional. The provision allows an employer to discharge an employee who is temporarily incapable of work and commits a gross violation of the duty to stay at home when on sick leave by leaving home outside the permitted time window. Furthermore, the provision stipulates that such an employee is consequently not entitled to unemployment benefits.

The Constitutional Court dismissed the motion on the grounds that the legislation in question had not been found to be in conflict with the constitutional order. The court ruled that violation of the duties of an employee during the temporary incapability of work is to the detriment of the employer – the employee is not working and does not respect the rules of treatment but still demands sick pay from the employer, thus de facto “deceiving” the employer. It is thus not justified to force the employer to continue employing a person who has committed “deception”, strived to deprive the employer of money or caused any other serious harm to the employer.

However, the Constitutional Court also emphasized that in these cases an employer may discharge an employee only for an especially gross violation of the stipulated duty. The law thus prevents the abuse of such reason for discharge by the employer – the violation of the duty must always be assessed with respect to the circumstances of the specific case. The court also decided that the given decision should not be based on the definition of the “especially gross violation” in the employer’s working rules or other internal guidelines or on the definition stipulated in the collective agreement, employment contract or other contracts, and that such definition is not binding for the court when deciding upon the invalidity of the discharge from employment.

The employer is thus still allowed to discharge an employee who is temporarily incapable of work and who commits an especially gross violation of the duty to stay at home when on sick leave.