A woman was fired while on sick leave due to temporary incapacity and decided to take legal action. The court ended up agreeing, considering the dismissal unfounded and ordering the company to pay compensation in excess of 3,000 euros, according to Noticias Trabajo, a Spanish website specializing in labor and legal matters.
The case dates back to May 2024, when the worker, who worked as a waitress, received a disciplinary dismissal letter sent by burofax, with immediate effect.
In the communication, the employer accused her of having “been present, encouraged and allowed” her partner to attack and insult the businessman’s wife in an incident that occurred on April 4th.
The episode, explains the publication, involved the Guardia Civil, giving rise to criminal proceedings that would end up being provisionally archived. The company justified the dismissal based on this conflict, even though it knew that the woman was on sick leave following a road accident.
Court considered the dismissal unjustified
Unsatisfied with the decision, the worker filed a labor complaint with the Mediation, Arbitration and Conciliation Service (SMAC), but without reaching an agreement. He then ended up going to court, claiming that the dismissal was discriminatory and void, as it had occurred during his sick leave.
The case was analyzed first by the Julgado de lo Social no. 4 of Lugo and then by the Superior Court of Justice of Galicia (TSJG), which confirmed that the company’s decision was unfair and without legal basis.
However, the court chose to classify the dismissal as unfounded and not null, a relevant distinction from a legal point of view.
No evidence of direct discrimination
According to Noticias Trabajo, the TSJG concluded that there was not sufficient evidence of discrimination due to illness, even though the worker was on sick leave. The company’s decision did not show a proven direct link between the employee’s health status and the decision to dismiss her.
Even so, the judges recognized that the company did not present any valid justification for the dismissal, which makes it unfounded under article 55 of the Workers’ Statute.
Company ordered to pay more than 3,000 euros
As a result, the court ordered the employer to pay 3,019 euros in compensation to the worker, an amount that includes compensation for notice, vacation and damages arising from the termination of the contract.
Furthermore, the company must choose between reinstatement of the employee at work or pay full compensation, being exempt from any additional allegations.
The case, cited by , reinforces the principle that a dismissal must always be duly justified, especially when the worker is on sick leave. Otherwise, the decision could be considered unfair and could be costly to the company.
And in Portugal?
In Portugal, the law also protects workers on sick leave, although this does not completely prevent dismissal.
According to the Labor Code, the employer cannot dismiss someone based on illness or temporary incapacity, as this would constitute a prohibited form of discrimination (article 24).
However, termination of the contract may occur if there is proven just cause: for example, serious indiscipline, repeated non-compliance or legal termination of the job.
If the court concludes that the reason cited is false, discriminatory or has no objective basis, the dismissal is declared unlawful, in accordance with article 381.
In this situation, the worker has the right to reinstatement in the position and payment of wages corresponding to the missing period, or, if preferred, compensation of between 15 and 45 days of remuneration for each year of seniority, with a minimum of three months, as provided for in articles 389 and 391.
For specific cases, such as pregnant workers, those who have recently given birth or are breastfeeding, the protection is even stronger: dismissal requires a prior opinion from CITE (Commission for Equality in Labor and Employment) and is presumed to be without just cause if this formality is not complied with.
In summary, dismissing a worker for being on sick leave is illegal, but dismissal during sick leave may be legitimate if there is duly proven disciplinary or economic grounds.
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