Sick Employee Dismissed during Probationary Period

The dismissal of a sick employee during his probationary period was not invalid because there was no chronic illness or disability.

On April 30, 2024, an employee started working for an employer in the position of a cleaner. The employment contract was entered into for a period of eight months.
On Monday, May 6, 2024, the employee reported sick via WhatsApp containing the following text: "Brother, don’t come to work today, got ill". The next day the employee resumed work.
On Sunday, May 12, 2024, the employee was involved in a shooting in the metro. In the evening, he sent a WhatsApp message to the employer saying: "Yoo, brother" and "All is well". On Monday, May 13, 2024, at 6:52 AM, via WhatsApp, the employer asked whether the employee intended come to work. At 09:14 AM the employee sent a selfie showing a blood-stained face and blood-stained clothes, and a selfie in a hospital bed with the text: "won’t come today, brother." When the employer asked what had happened, the employee replied that two people had shot at him in the metro. In the afternoon, the employer referred to the probationary period clause and announced that the employment contract would be terminated. The employer added: "When you are ready to work again, you can register again".
When, a little later, a lawyer inquired on behalf of the employee about the reason of the probationary period dismissal, the employer stated that the dismissal had been given because twice the employee had been absent without permission and because he had not reported sick as was required in the applicable rules.
The employee did not accept the dismissal and claimed from the Sub-district Court payment of the transitional allowance, a fair compensation and a fixed damages for the premature termination of the employment contract. He stated that the employer's statement "that the employee can register again when he would ready to work again" showed that the termination of the employment contract was related to his sickness. As a consequence, the employer would have made a prohibited distinction on the grounds of disability or chronic illness.
At the hearing, the employer declared that the person who had sent the WhatsApp message on behalf of the employer had the impression that the employee was not really motivated to work, since he had already reported sick twice on Monday, had arrived late several times and spent a lot of time on his phone during work. As a result, the employer had got the impression that the employee did not really want to work.
The Sub-district Court made short work of the employee's claim. According to the Sub-district Court, there was no indication that the employer would have given the dismissal due to a chronic illness. The employer knew nothing about the employee. The Sub-district Court considered it conceivable that the shooting incident may have had a major impact on the employee, but this did not mean that there were chronic psychological complaints. The employee had submitted a letter from a psychologist, showing that the employee had a post-traumatic stress disorder (PTSD), but according to the Sub-district Court, this did not mean that the PTSD was chronic. According to the Sub-district Court, the reason given by the employer for invoking the probationary period clause was sufficiently plausible.
The employee's claims were rejected. The employee was entitled to the transitional allowance, but since the employer had stated that the allowance had already been paid and since the employee had failed to respond to it, that claim was rejected as well.

The law provides for a prohibition on termination during the first two years of illness, but terminating of the employment contract due to illness is not prohibited by law.
Since the law links the possibility of terminating an employment contract to the existence of one of the "reasonable grounds" for terminating or dissolving an employment contract, mentioned in the law, the possibility of termination due to illness only exists in exceptional cases in which the requirement of a reasonable ground does not apply. This is particularly the case during the probationary period. For that reason, dismissal during the probationary period due to illness is not prohibited.
The law does prohibit discrimination, however, on the grounds of a chronic illness or disability. Termination of an employment contract due to a chronic illness, whether it happens during the probational period or not, is therefore prohibited. The law does not explain the term “chronic illness”, however. It is clear that an illness must be long-term in order to be classified as ‘’chronic”. So if the employee in the above case suffered PTSD from the shooting incident, one day after the shooting incident it cannot possibly be considered to be a chronic illness. As a result, the prohibition on making a distinction on the grounds of a chronic illness or disability did not apply and the dismissal during the probationary period was legally valid.