Excessive sickness absenteeism

Determining what is meant by excessive, frequent or persistent absenteeism is problematic in itself. While no specific provision can be found in this respect, judicial case law provides some interpretative guidance.

A point of reference may be Article 53 § 1 point 1 of the Labour Code, according to which an employer may terminate an employment contract without notice if the employee's incapacity to work due to illness lasts:

• more than three months - if the employee was employed for less than six months;
• longer than the total period of receiving remuneration and benefits on this account and receiving rehabilitation benefit for the first three months - if the employee was employed for at least six months or if the inability to work was caused by an accident at work or occupational disease.

It may be argued that since legal provisions allow an employer to terminate the employment contract without notice in the above-mentioned cases, absenteeism of an order similar to that specified in Article 53 § 1 point 1 of the Labour Code justifies the application of the "ordinary" procedure, i.e. terminating an employment contract with notice. Jurisprudence indicates that an employee’s long-term illness (comparable to the period specified in Article 53 §1 point 1 of the Labour Code) constitutes a legitimate reason for termination, as it always results in unfavourable consequences for the employer (cf. judgment of the Supreme Court of 11 July 2006, I PK 305/05).

The length of service with an employer is also relevant for assessing possible excessiveness. An objectively long absence of an employee with considerable seniority should be treated differently to that of a new employee.

Depending on the facts of the case, absences from different periods of time may be relevant. It should not be assumed that to assess the legitimacy of the decision to terminate the employment contract, it is justified to consider only the period, e.g. the last year of employment, counting backwards from the date of the employer's statement of dismissal. It is rightly pointed out that in a situation where long-term absences from work are repeated every year for several years, it is wrong to assume that earlier (older) absences have become obsolete (cf. judgment of the Supreme Court of 24 October 2017, I PK 290/16).

Impact of sickness absenteeism on work organisation

From the employer's perspective, further employment of a "permanently ill" employee is in clear contradiction with the business purpose of establishing the employment relationship. The employee’s lack of availability for work makes it impossible to make effective and continuous use of their knowledge and experience in operating a business (cf. judgment of the Supreme Court of 21 January 2016, III PK 54/15). Jurisprudence also emphasises the importance of specific consequences of long-term and frequent absences of the employee, stressing their impact on the disorganisation of work and the infringement of the employer's interests (cf. judgment of the Supreme Court of 6 November 2001, I PKN 449/00).

Examples of destabilisation in the organisation of work as well as violation of the employer's interests (including directly financial ones) include:

• the need to hire additional replacement staff or to transfer staff between the employer's business units;
• difficulties in meeting deadlines;
• increased responsibilities and workload for other staff, which can lead to errors in their work;
• the need for other staff to work overtime;
• the need to involve other staff in projects in which they were not previously involved.

Co-existing circumstances

When considering the legitimacy of terminating an employment contract, the employee's employment history with the given employer becomes relevant. As indicated above - the length of service itself is important, as well as whether the long-term absence constituting grounds for termination of the employment contract is one-off in nature or whether it occurs regularly.

An important variable in the jigsaw of the various circumstances is undoubtedly the question of whether or not the employee has (or has not) regained full strength and, therefore, full capacity to work. If the employee has regained this capacity, the reason for termination may be considered outdated and the termination of the employment contract unjustified. If, on the other hand, the employee is chronically ill, the employer may be guided by an objective concern that the continued employment of that employee will jeopardise the efficient functioning of the workplace and its interests (cf. judgment of the Supreme Court of 17 May 2016, I PK 155/15).

Any additional circumstances indicating that the performance of the employee's duties was irregular or unsatisfactory (which may also be due to objective reasons on the part of the employee, such as, in particular, long-term illness or regular incapacity to work) are also relevant to the specific case.

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To sum up, can regular sickness absenteeism constitute an independent and sufficient reason for termination? It can, but the broader situational context also determines this. Depending on the circumstances of the particular case, the court's decision in the event of any litigation may in fact be different. In particular, it is impossible, in isolation from the facts of a particular case, to determine the proportion between attendance and absence that would definitely support the legitimacy or otherwise of terminating the employment contract.

Aleksandra Wójcik