A Portuguese worker was fired after missing work during a period of illness proven by sick leave. The case reached the courts and ended up being decided in his favor: according to the Lisbon Court of Appeal, in case 27862/21.5T8LSB.L1-4 (judgment of November 22, 2023), the dismissal was unlawful, due to disproportion to the facts and because the employer was already aware of the employee’s clinical situation. The company’s appeal was dismissed.
According to the ruling, sick leave of more than 30 days determines the suspension of the employment contract; and, in such a context, the omission of communications (for example, extensions of sick leave) does not have the same gravity as the lack of communication of absences in a fully valid contract. Therefore, the sanction of dismissal proved to be disproportionate in the specific case.
What the law really requires
According to the Labor Code, foreseeable absence must be communicated to the employer 5 days in advance and, if this is not possible, “as soon as possible”; in addition, the employer may require proof of the reason within 15 days of the communication.
These rules (arts. 253 and 254) replace the incorrect idea that there would be a fixed deadline “up to the 2nd day” to inform and “5 days” to provide proof.
How the disease is proven
According to SNS 24/SPMS, temporary incapacity for work is certified through the CIT (discharge), issued electronically and automatically sent to Social Security; To the employer, the worker must communicate the absence and can send the CIT: since 2019 it has been possible to consult and send the absence online.
For absences of up to 3 days, there is a self-declaration of illness (ADD), which the employer validates with the code provided by the worker: there is no automatic sending to the company.
Compensation and reinstatement
In the case of unlawful dismissal, according to the Labor Code, the worker can choose reinstatement or compensation. If the worker chooses (art. 391), the court sets between 15 and 45 days of basic remuneration and seniority benefits for each year of service (minimum 3 months); if reinstatement is excluded at the employer’s request (art. 392), the compensation ranges from 30 to 60 days per year (minimum 6 months).
In the specific case judged, the 1st instance established a substitute compensation of €800 for each year (or fraction) of seniority, later confirmed by the Court of Appeal by maintaining the illegality of the dismissal.
Can there be dismissal during the layoff?
According to , being on leave does not, in itself, prevent dismissal; What is illegal is dismissal due to sick leave or without a legal basis. There may be dismissals due to termination of the position, inadequacy or disciplinary action, as long as legal requirements are met and without discrimination.
Reason for the worker
The court ruled in favor of the worker and considered the dismissal to be unlawful, according to the Lisbon Relation. To avoid disputes, compliance with the rules of arts. 253 and 254 of the CT and the correct communication/validation of the CIT or ADD (according to SNS 24/SPMS) are decisive.
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