02 Aug Instant dismissal for ‘work refusal’ during disability
The employee joined the employer on Feb. 1, 2022, as a pavement worker. On March 9, 2023, an incident occurred in which the employee fell. Despite his pain symptoms, the employee completed his workday after the fall. That evening, the employee notified the employer that he was at the emergency room. On March 10, 2023, the employee contacted the employer by telephone. In this telephone conversation, the employee indicated that the fall caused him to have to go to the family doctor due to his pain symptoms. After his visit to the family doctor, the employee did not appear at work. The same day, the employee was summarily dismissed. A letter gave the following reasons for the summary dismissal: ‘Being late for work several times and refusing to come to work today, plus refusing to come to the employer for an interview today. This is considered work refusal’. The employee disagreed with the instant dismissal given and requested equitable compensation.
According to the subdistrict court, it is established that the employee timely informed the employer of his physical complaints. The employee did not visit the family doctor to have his pain symptoms examined until after the employer’s agreement. The employer classifies this visit as “short-term absence. However, this definition does not apply to the present case, according to the district judge. The subdistrict court held that when the employee did not appear at work after visiting the family doctor, the employer should have treated this as calling in sick. Especially since the employee had revealed that he was in the emergency room on the evening of March 9, 2023. Given the employee’s inability to work, the employer should not have expected the employee to appear at work for an interview. Work refusal or absenteeism due to disability is permissible and therefore does not constitute an urgent reason for summary dismissal.
In the dismissal letter, the employer also cited that the employee showed up late for work several times. The subdistrict court considered that previous conduct by the employee could contribute to the finding of an urgent reason. However, the subdistrict court ruled that in the present case, the employer could have been required to dismiss the employee by giving notice. In the opinion of the subdistrict court, therefore, the complex of the aforementioned facts and circumstances does not provide sufficient grounds for immediate dismissal.