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Old 25.09.2018, 17:29
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Fire a sick employee?

Hello everyone,

Management was looking to fire an employee by the end of the month, but now that employee is out sick. It needed to be done this month because after that the employee has a 3 month notice period instead of a 1 month period (first year of employment is up). Is it possible to terminate her while she's sick or will management have to wait until she returns? If management must wait, then her notice period would be 3 months instead of 1 month.

Thank you for your advice.
Sincerely,
Airman
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Old 25.09.2018, 17:30
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Re: Fire a sick employee?

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Hello everyone,

Management was looking to fire an employee by the end of the month, but now that employee is out sick. It needed to be done this month because after that the employee has a 3 month notice period instead of a 1 month period (first year of employment is up). Is it possible to terminate her while she's sick or will management have to wait until she returns? If management must wait, then her notice period would be 3 months instead of 1 month.

Thank you for your advice.
Sincerely,
Airman

You think we going to tell you Management ??


You're location is US, we are in CH
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Old 25.09.2018, 17:33
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Re: Fire a sick employee?

if management are in switzerland and have staff here then they already know the answer

hint - in the specific case you outline, no, they can't
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Old 25.09.2018, 17:40
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Re: Fire a sick employee?

In the first year they cannot give notice during the first 30 days of being sick.

Congrats with either having your employee longer, or congrats on receiving extra months of payment. win/win
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Old 25.09.2018, 20:08
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Re: Fire a sick employee?

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if management are in switzerland and have staff here then they already know the answer

hint - in the specific case you outline, no, they can't
So, if you suspect you're going to be fired within such a deadline, find a friendly doc, and get signed off sick for stress. Nice.
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Old 25.09.2018, 20:10
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Re: Fire a sick employee?

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So, if you suspect you're going to be fired within such a deadline, find a friendly doc, and get signed off sick for stress. Nice.
Here at least a company can get rid of somebody who is ill, just with some delay, In the Netherlands an employer is stuck with somebody for 2 years. (one of the many reasons why an unlimited contract is the rare holy grail to people)
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Old 25.09.2018, 23:08
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Re: Fire a sick employee?

Bei Krankheit oder Unfall (336c Abs. 1 lit. b OR) gewährt das Gesetz dem ganz oder teilweise arbeitsunfähigen Arbeitnehmenden einen Kündigungsschutz; und zwar im ersten Dienstjahr während 30 Tagen, ab zweitem bis und mit fünftem Dienstjahr während 90 Tagen und ab sechstem Dienstjahr während 180 Tagen. Die Kündigung, die während einer solchen Sperrfrist erfolgt, ist nichtig.
Ist die Kündigung aber vor Beginn einer Sperrfrist beziehungsweise vor Eintreten eines Sperrfristentatbestandes (Abs. 1) erfolgt, wird der Ablauf der Kündigungsfrist unterbrochen und erst nach Beendigung der Sperrfrist fortgesetzt (vgl. Art. 336c Abs. 2). Wird also der Arbeitnehmer während laufender Kündigungsfrist wegen Krankheit oder Unfall arbeitsunfähig, wird die Kündigungsfrist unterbrochen und nach Wegfall der Arbeitsunfähigkeit um die Dauer der Arbeitsunfähigkeit verlängert. Grund für die Verlängerung ist, dass der gekündigte Arbeitnehmer die Möglichkeit haben soll, während der vollen Kündigungsfrist eine neue Stelle zu suchen. Das Gesetz garantiert dem Arbeitnehmenden somit eine ungekürzte Kündigungsfrist.
Gilt für die Beendigung des Arbeitsverhältnisses ein bestimmter Endtermin – wie etwa das Ende eines Monats oder einer Arbeitswoche – und fällt dieser nicht mit dem Ende der fortgesetzten bzw. der nun verlängerten Kündigungsfrist zusammen, verlängert sich die Kündigungsfrist bis zum nächstfolgenden möglichen Endtermin. Faktisch kann sich das Arbeitsverhältnis so um einen oder gar mehrere Monate verlängern.
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Old 25.09.2018, 23:25
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Re: Fire a sick employee?

Dandy, could you please provide the link from which you quoted? Thanks.
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Old 25.09.2018, 23:27
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Re: Fire a sick employee?

By forum’s rule one needs to provide a translation of some sort - however ugly it is ...

In the case of illness or accident (336c para. 1 lit. OR), the law grants dismissal protection for employees who are wholly or partially incapacitated for work; in the first year of service for 30 days, from the second to and at the fifth year of service for 90 days and from the sixth year of service for 180 days. The termination, which takes place during such a blocking period, is void.
However, if the termination occurred before the beginning of a vesting period or before the occurrence of a blocking period (paragraph 1), the expiry of the notice period is interrupted and continued only after the end of the blocking period (see Art. 336c (2)). If, therefore, the employee becomes incapable of work during the period of notice due to illness or accident, the period of notice is interrupted and extended to the duration of incapacity for work after the incapacity to work has ceased. Reason for the extension is that the terminated employee should have the opportunity to look for a new job during the full notice period. The law thus guarantees the employee an unabridged notice period.
Applies to the end of the working ratio, a certain end date - such as the end of a month or a working week - and does not fall this together with the end of the continuous or of the now extended period of notice, the notice until the next possible expiry date extended. In fact, the employment relationship can be extended by one or even several months.
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Old 25.09.2018, 23:38
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Re: Fire a sick employee?

Also good to know, unless agreed upon otherwise the company only has to pay for the first 3 weeks during the first year, so this might even the cheapest solution for them.
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Old 26.09.2018, 00:43
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Re: Fire a sick employee?

To OP: The notice period does not become 3 months. The "interruption" goes both ways. So, the employer can fire the employee once she is back with 1 month notice period as long as they do it because she worked (excl. sick days) for 1 year. People use this trick of being sick to get around being noticed. It only works so far, particularly because the employee will not get paid after short period of times, already (e.g., 30 days), depending on their employer and contract.
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Old 26.09.2018, 08:35
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Re: Fire a sick employee?

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Dandy, could you please provide the link from which you quoted? Thanks.

https://www.20min.ch/community/dossi...story/14069220
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Old 26.09.2018, 10:29
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Re: Fire a sick employee?

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To OP: The notice period does not become 3 months. The "interruption" goes both ways. So, the employer can fire the employee once she is back with 1 month notice period as long as they do it because she worked (excl. sick days) for 1 year. People use this trick of being sick to get around being noticed. It only works so far, particularly because the employee will not get paid after short period of times, already (e.g., 30 days), depending on their employer and contract.
Nope that doesn't work. What counts is the "gross" duration of employment, and not net attendance minus sick days


EdwinNL was correct. She can't be terminated as long as she is sick, though protection is only up to 3 weeks (not 30 days) during the first year of employment. Her absence will now presumably push her into the > 1 year of employment bracket and because employment contracts can only be terminated by the end of a month, the new notice period will be 3 months. Too bad, but that's what it is.
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