No Dissolution of the Employment Contract of an Employee who had Deliberately Untruthfully Reported Sick

The employment contract of an employee who had untruthfully reported sick in order to able to attend a wedding could not be terminated. The prohibition on termination during illness precluded it, because the employee was ill when the termination procedure was started.
The exception to the prohibition on termination, applicable when the reason for termination is not related to the illness, did not apply since, despite an earlier report of recovery, the employee was still struggling with psychological complaints during the untruthful sick report and since her behaviour might have been influenced by these complaints.

An employee of an airline company initially worked as a cabin attendant but had started working in the higher position of a purser as of April 1, 2023.
From May 3, 2023 to July 5, 2023, she was ill, but she resumed work on July 5, 2023.
On June 30, 2023, the employee had submitted a request for a day off on July 13, 2023, so she would be able to attend the wedding of her uncle, with whom she had a special bond. The request was rejected because the planning did not allow a day off. The employee’s repeated requests on July 12, 2023, also through her supervisor, could not alter the decision. On Thursday morning, July 13, 2023, the employee announced that she would report sick in that case. When the manager indicated that an unjustified sick report would have consequences, the employee ignored it and immediately reported sick.
On July 14, 2023, the employee reported recovered again.
In a meeting with her employer on July 17, 2023, the employee acknowledged that she had untruthfully reported sick. The employer then announced that he did not want to continue the employment with her and he disengaged her from the planning. On July 24, 2023, the employee reported sick again. The occupational health and safety service acknowledged the sick report and determined limitations that indicated the existence of physical complaints.
In the end, the employee had to undergo surgery on October 20, 2023.
When the employer requested the Sub-district Court to dissolve the employment contract due to culpable conduct, a disrupted employment relationship or a combination of both, the Sub-district Court decided to dissolve the employment contract. The employee did not accept it, however, and lodged an appeal with the Court of Appeal.
Based on information that could not yet be available to the Sub-district Court, the Court of Appeal decided that the prohibition on termination during illness prevented dissolution of the employment contract. The Court determined that, up to July 5, 2023, the illness had been the result of psychological complaints. Although as of July 14, 2023, the illness had been the result of an ectopic pregnancy, which is a physical complaint, the Court deduced from a letter from the treating psychologist that it was likely that the psychological complaints were still present after the work resumption on July 5, 2023 and that the employee had acted under the influence of these psychological complaints when she reported sick.
It lead to the Court’s conclusion that the prohibition on termination during illness precluded the requested dissolution of the employment contract. The reason was that the legal exception to the prohibition on termination, that the dissolution request shall not relate to the circumstances to which the prohibition on termination relates, did not apply. The Court therefore retroactively reinstated the employment contract and ordered the employer to pay the wages.
The Court limited he increase due to late wage payment to 15%.

We can imagine that the employer in the above case has difficulty accepting the Court's decision. After all: even if it is true that the employee's reprehensible behaviour took place under the influence of the psychological complaints, it still seems plausible that, despite these psychological complaints, the employee must have realized that her behaviour was not as it should be and would have consequences. She had even expressly been informed of this in advance.
The Court's decision does not imply, however that there was no ground for the dismissal.
The Court merely established that the employee's illness could not be seen in isolation from the grounds for dismissal and that, for that reason, the prohibition on termination during illness prevented the termination of the employment contract.
Once the employee has recovered, the employer might submit a new termination request. Then the Court would still have to assess whether, despite the possible influence of psychological complaints, the employee's behaviour was so reprehensible that it justifies termination of the employment contract.