Abstract

Art. 52 § 1.1 of the Polish Labour Code allows for termination of an employment contract without notice with an employee who is on a sick leave. Such termination is effective only in case of gross misconduct of the employee during temporary inability to perform work as a result of illness. A typical manifestation of activities undertaken by an employee (who is on a sick leave) that might justify the termination of employment contract (under Art. 52 § 1.1 of the Polish Labour Code) is using the sick leave contrary to what it is intended for.

Inability to perform work due to illness is a condition in which because of temporarily impaired health an employee is unable to perform their basic or key duties. When stating such inability, a physician shall take into consideration all aspects important for evaluating the health condition and impairment of vital functions causing temporary inability to perform work as well as the type and conditions of work. Impaired health alone may not justify granting of a sick leave as not every illness makes it impossible to perform work. Some illnesses are neutral to performing work, in case of others work is therapeutic. The aim of a sick leave granted to an employee pursuant to the provisions of the Act of 25 June 1999 on cash benefits from social insurance in case of illness or maternity is to restore lost health. Thus, we may speak of using a sick leave contrary to what it is intended for (which may justify termination of an employment contract without notice pursuant to Art. 52 § 1.1 of the Polish Labour Code) only when an employee undertakes activities (against medical recommendations) which directly contribute to prolonging their absence at work, and also in a situation when an employee gets a sick leave as a result of malingering. It needs to be noticed that pursuant to Art. 100 § 2.4 of the Polish Labour Code one of the fundamental duties of employees is to respect the interest of their employer. That duty should be interpreted as an obligation to refrain from any activities aimed at doing harm to the employer or activities that are qualified as harmful for the employer. Thus, when an employee acts contrary to doctor’s recommendations or when an employee undertakes activities which are not neutral to improvement of their health then without doubt such acts constitute gross misconduct. It needs to be taken into consideration that the very fact of performing other paid work while on a sick leave does not in itself provide grounds for assuming that the employee uses the sick leave contrary to what it is intended for and thus it is impermissible to terminate the employment contract without notice by fault of the employee. As shown above, if a doctor gives consent for performing specific activities, including paid work other than the one defined in the employment contract with the given employer, the possibility of accusing such employee of using the sick leave contrary to what it is intended for is excluded. Similarly, such possibility is excluded if the medical records do not indicate the existence of risk factors or physician’s contraindications as regards performing other paid work; nonetheless a sick leave may not serve for keeping undisturbed health.

In view of the above, if an employee uses a sick leave contrary to what it is intended for the employer may – pursuant to Art. 52 § 1.1 of the Polish Labour Code – terminate the employment contract with such employee even when they are still on the sick leave (during justified absence at work), though such possibility depends on specific circumstances.