Dismissal During Sick Leave and the Burden of Proving the Real Reason
Elena Dimitrova worked as a senior accountant at a private hospital for nine years. On 2 April she was hospitalised for surgery and submitted a sick-leave certificate for 45 days. On 10 April the employer issued a dismissal order under Art. 328(1)(2) KT (redundancy), stating that the accountant post was being cut. A new employee, aged 26, was hired as 'financial controller' on 1 May with substantially the same duties. Dimitrova was not given the 30-day notice required for her length of service; the order said notice was 'compensated'. She was also a member of the works council. She challenges the dismissal within the statutory period.
1. Is the dismissal lawful given the sick leave, the works-council membership and the notice defect?
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Protection during sick leave. Under Art. 325(1) KT an employer may not dismiss during a period of temporary incapacity, save on limited grounds exhaustively listed (e.g. closure of the enterprise, or dismissal under Art. 328(1)(2) and (3) where the law so allows). Redundancy under Art. 328(1)(2) is one of the permitted exceptions, so the mere fact of sick leave does not void the order. The court must still verify that the redundancy is genuine, not a pretext.
Works-council member. Members of the works council enjoy enhanced protection: dismissal requires prior consent of the labour inspectorate (or, depending on the applicable provision, the works council). Absent that consent, the dismissal is unlawful. The order is silent on consent, which is a fatal defect.
Notice. For nine years' service the statutory notice is 30 days. 'Compensated' notice is not the same as notice; unless the parties agreed to pay in lieu and the law permits it, the failure to give notice is a breach.
Conclusion. Even if the redundancy is genuine, the absence of the required consent for a works-council member makes the dismissal unlawful. The notice defect is an independent ground.
2. How should the court assess whether the redundancy was genuine, and what is the effect of hiring a 'financial controller' with the same duties?
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Burden and standard. The employer must prove the objective grounds for the redundancy: a real reduction in the volume of work, reorganisation, or elimination of the post. The court examines the substance, not the label.
The new hire. Hiring a 'financial controller' on 1 May with substantially the same duties as the abolished accountant post strongly suggests the post was not eliminated but renamed. The court should compare job descriptions, reporting lines, salary and actual tasks. If they coincide, the redundancy is a sham and the real reason is the employee's sick leave - a prohibited ground.
Prohibited reason. Dismissal because of illness or exercise of the right to sick leave is discriminatory and contrary to Art. 325 KT and the Protection against Discrimination Act. The court should draw an adverse inference from the timing: the order came eight days after the sick-leave certificate.
Remedy. If the dismissal is unlawful, the court reinstates the employee and awards compensation for the period of unemployment (up to six months' remuneration), plus any unpaid notice. The court should give reasons on each element - genuineness, consent, notice and discriminatory motive - so that the judgment is reviewable.