UNJUSTIFIED ABSENCE: Right To Dismiss A Worker

Abuse of leave due to temporary incapacity for work

 

Does your employee (“Employee“) go on sick leave too often or all of a sudden even though his or her health condition appears to be in perfect order? Do you doubt the justification, i.e. the existence of reasons for incapacity for work?

If the answer is yes, we are here to give you some guidelines in order to determine whether the Employee is abusing leave due to temporary incapacity for work (“Abusing Leave“) or not, as well as to point out the possibilities available to you to determine whether your Employee is Abusing Leave, and to take appropriate steps to sanction such conduct.

The employment relationship should ideally be based on mutual respect and trust between the employer and the Employee. However, in certain situations, one or the other party draws such moves that the trust is permanently violated, which ultimately leads to the disruption of the employment relationship itself.

One of such moves is Abusing Leave by the Employee, where the Employee, using his real or false impaired health condition, tries to be absent from work or at least to be absent longer than is essential for the eventual remediation of health problems.

The Employment Act (“EA”)[1] stipulates that Abusing Leave constitutes a violation of work discipline and as such may be a reason for termination of an employment contract or imposition of some disciplinary measures, but the path from determining the Abusing Leave to sanctioning it is neither short nor easy.

 

How to determine if an Employee is Abusing Leave?

If you suspect that an Employee is Abusing Leave, then there are four options available to you.

First of all, the EA authorizes you, as the employer, to, at your own expense, refer the Employee for an appropriate analysis to an authorized health institution of your choice in order to determine the existence of circumstances for absence.

Non-response of the Employee to perform the analysis is a violation of work discipline in itself and as such is a reason for dismissal.

In addition to the mentioned option, the Health Insurance Act (“HI Act“)[2] provides three options in case of doubt in the justification of absence, doctor’s assessment, or in connection with the exercise of all rights from compulsory health insurance.

A first option is a valid tool for you as an employer and for an Employee who is not satisfied with the assessment given by the chosen doctor. Here we are talking about the complaint in the procedure of exercising the rights that can be sent by the Employee or the employer to the first instance medical commission (second instance if the disputed grade was made by the first instance medical commission) within 3 days from the day of passing the disputed grade.

The second option is to renew the temporary incapacity assessment procedure. The Republic Health Insurance Fund (“RHIF“) and you as an employer may request that an Employee whose temporary incapacity for work was assessed by a selected doctor, i.e. the first-instance medical commission be re-evaluated by the first-instance or second-instance medical commission within 30 days from the day when the disputed assessment was given.

The third option involves expertise in the procedure of exercising the rights from the obligatory health insurance. The RHIF may, ex officio or at your request, within one year from the day of exercising the rights from the compulsory health insurance, request expertise in connection with the exercise of all rights of the Employee from compulsory health insurance, including expertise on the Employee’s health.

 

Consequences of Abusing Leave

If you have carried out any of the above-mentioned procedures for determining the medical fitness of the Employee, at the end of which it was unequivocally established that the Employee committed the Abuse of Leave, there are several ways to sanction such behavior.

First of all, as previously mentioned in accordance with the EA, Abusing Leave is a violation of work discipline and as such is a valid basis for termination of an employment contract.

In addition to the termination of the employment contract, if you assess that the violation is not of such a nature that the Employee’s employment contract is terminated, alternative measures are available to you as follows:

  • temporary dismissal without salary compensation, lasting from one to 15 working days;
  • a fine in the amount of up to 20% of the basic salary of the Employee for the month in which the fine was imposed, lasting up to three months;
  • a warning with a notice of dismissal stating that the employer will terminate the employment contract of the Employee without warning if within the next six months he commits the same violation of work obligations or non-compliance with work discipline.

 

 

For more info on this or any other legal, tax or business topic, please feel free to write to us at office@statt.rs at any time OR contact us via telephone number +381113281914 during working days from 08:30 to 16:30

 

[1] Employment Act (“Official Gazette of RS”, No. 24/2005, 61/2005, 54/2009, 32/2013, 75/2014, 13/2017 – US decision, 113/2017 and 95/2018 – authentic interpretation ).

[2] Health Insurance Act (“Official Gazette of RS”, No. 25/2019).