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Consultation Question of Christian (July 2004)
 
Subject dismissal for disease
Question:
My owner plans to lay off me. Do I have resort to refuse and which are my rights to the dismissal because society is in rectification?

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Our answer:
According to the labor regulation, an employer cannot lay off an employee because of his health. The disease is not a valid reason for dismissal. Such a dismissal is abusive.

However, of the repeated absences, even justified by a medical certificate, can lead to a justified dismissal.

For that, it is necessary that the employer can establish that the absences of the employee disturb the good performance of the firm seriously and that its final replacement is necessary.

Are taken into account to justify the dismissal the duration of the absence, the responsibilities and the professional qualification, the injury and the disturbances which the absence causes with the firm.

According to case law, the employer cannot lay off an employee whose absence brings only one simple embarrassment to the firm and whose replacement does not forward an emergency character or can be assured by another company employee. Such a dismissal is abusive.

To note:
The applicable collective agreement in the firm can fix a time during which it is interdict to lay off an employee because of his sick leave.

- If the absence is understood within this time, employment is guaranteed.

- If the disease is prolonged beyond this time, the employee can be laid off provided that its absence disturbs the good performance of the firm seriously and that its replacement is necessary.

But the benefit of this guarantee can be forwarded to a condition of seniority.

If the employer has a reason for dismissal and decides to break the contract, it must observe the procedure of dismissal with preliminary conversation (provided for with the item L 182 17 of the labor regulation), payment of the severance pay, notice.

It must pour the legal allowance of dismissal or, if necessary, the conventional allowance.

Your recourse:

The employee can, in the event of conflict with his employer, to make a first step near the departmental management of work.

If it wishes to act as justice, it can be addressed to the court of the arbitration of the place where the establishment is located where he carries out his work, or of the place of its residence, if he works home-base or apart from any establishment.

Warning:
Our answer only enables you to know your rights. It is intended to bring legal information to you in documentary matter. We do not carry any appreciation on your personal situation.

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Ask complement of: Christian
My owner justifies himself with article 182 17. My absence was at the beginning an occupational disease and another disease and which has occurred and it did not form part of the occupational illness and when I took again nth after I passed in front of occupational medicine and for them I had been inapt to take again my post for one month and half I make packages and I did not can prove if I were able to take again my post. What do I can make to avoid my dismissal because I am 8 years old of house?

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Our complementary answer:

 

When an employee is stated inapt by the company doctor, it can be the subject of a dismissal.

The dismissal for inaptitude can be marked only if the employee is stated inapt by the company doctor after 2 physicals separated by 2 weeks, and if there is impossibility of reclassification in the firm, or if it refuses the post of reclassification suggested.

Important:
The dismissal must intervene within one month following the second inspection of recovery. Beyond this time, the employer must pay to paid the wages which it perceived before the suspension of the work contract.

The procedure of dismissal for inaptitude contains a preliminary conversation.

Then, the employer must address a letter of dismissal specifying the reason for the aforementioned.

Lastly, it must give to paid the last paystub, the certificate intended for , the balance of any account and the attestation of employment.

Except terms of collective agreements or contractual more favorable, no compensation allowance of notice, in the event of ordinary disease or of accident other than an industrial accident, is due.

On the other hand, must be versed with paid which meets the conditions of them of granting.

If the dismissal for inaptitude intervenes following an occupational illness or industrial accident, the employee is entitled to a special allowance of dismissal equalizes (except more favorable terms of collective agreements) with the double of the legal allowance, like with the compensation allowance of notice.

If the dismissal for inaptitude intervenes following an occupational illness or industrial accident, the employee is entitled to a special allowance of dismissal equalizes (except more favorable terms of collective agreements) with the double of the legal allowance, like with the compensation allowance of notice.

Warning:
Our answer only enables you to know your rights. It is intended to bring legal information to you in documentary matter. We do not carry any appreciation on your personal situation.