Abuse of Sick Leave as a Stumbling Block for Trade Unions and Employers – Part One

A burning topic for employers in recent years has been the appropriate solution to the problem of sick leave abuse by employees. On the other hand, however, there is a problem of sick leave not actually being used by employees in cases when it is necessary, the employees instead using their days off for that purpose.

Nevertheless, while employers wish to gain greater control in this area, and employees request additional rights and protection, the question remains whether both employers and employees should rely only on the conscientiousness of the other party, or whether there are other mechanisms to prevent potential abuse on both sides. In other words, are the employees simply left to hope that the employer will have understanding for their temporary incapacity for work regardless of its duration? Are the employers left to hope that the employees will act conscientiously in the performance of their work duties and will not use the rights from health insurance in cases when the conditions for that are not met? Or has the legislator, in fact, provided certain mechanisms to prove that the abuse of temporary incapacity for work actually occurred?

What is considered as abuse of sick leave?

Pursuant to the Labor Law[1], the term sick leave is defined as temporary incapacity for work in terms of health insurance regulations, and this Law primarily regulates the obligation of the employee to notify the employer about the fact of a temporary incapacity for work.

Abuse of leave due to temporary incapacity for work is a violation of work discipline and gives grounds for termination of employment agreement pursuant to Article 179, paragraph 3, item 3 of the Labor Law. The Labot Law does not specify what is considered to be the abuse of sick leave, which would be impossible to specify anyway, given that it all depends on an individual case. Firstly, it depends on the type of incapacity for work, and then on the work place itself, hence a situation that would not be considered abuse in one case, could be determined as abuse of the right to a sick leave in another case.

In this regard, the legislator left it to the courts to determine, based on the facts in the specific proceedings, whether there has been an abuse of rights to a sick leave or not.

The case law has to some extent taken positions regarding certain issues in relation to the right to a leave due to temporary incapacity for work, and thus, the Supreme Court of Cassation of the Republic of Serbia (“SCC“) took a stance about what can be considered abuse of temporary incapacity for work:

Abuse of temporary incapacity for work occurs by using sick leave at a time when the employee is not ill and when he is able to work, but at the same time when during the temporary incapacity for work he behaves contrary to the prescribed therapy, rest obligation, etc.[2]

Abuse of sick leave means performing work whereby the employee prevents his recovery, i.e. aggravates his health condition and thus affects the prolongation of sick leave.[3]

Simply put, if an employee fakes an illness, injury, or health condition, or directly or indirectly prevents his recovery with his own actions, thereby prolonging his sick leave, such actions on the part of the employee are an abuse of sick leave.

Which situations can be considered as abuse?

The first situation mentioned by the CSS sounds relatively simple and refers to the case when an employee is not ill and when he is actually able to work, but uses a leave from work due to temporary incapacity for work, e.g. in order to perform other jobs.

This is most often a situation when it is determined that an employee is working for another employer, i.e. the so-called undeclared work.

In this regard, the SCC pointed out in its decision[4] that it shall be considered that the employee used a sick leave contrary to the reasons and goals for which it had been approved in a situation when during that sick leave he spent a long time in another city performing a job identical to the jobs to which he is assigned by the employer, from which jobs he was released due to the justified health reasons. Namely, the employee was found conducting the training of employees in another city, while he was sent on a sick leave for medical and physical therapy, which the court confirmed as abuse.

The second situation, “when the employee behaves contrary to the prescribed therapy during the temporary incapacity for work and his obligation to rest” is relatively more complex, and raises other questions, like what shall be considered as such behavior and how to determine that the employee is behaving contrary to the prescribed therapy.

In this regard, the SCC took the position that performing certain activities, such as sitting in a cafe or traveling outside the place of residence, during temporary incapacity for work, does not automatically mean the abuse of the right to a leave due to temporary incapacity for work.

There is no abuse of sick leave when a worker performs certain activities during sick leave which do not prevent his recovery and do not worsen his health condition. In the specific case, the plaintiff did not abuse the right to use a sick leave by sitting in a bar, given the nature of the illness he suffers from, which therapy does not require isolation and absence of communication, and it was determined that the plaintiff thereby did not prevent his recovery or aggravate his health condition.

This is a relatively well-known case, in which an employee was found sitting in a bar during temporary incapacity for work, while the position of the courts in these proceedings was that the employee did not thereby prevent his recovery or aggravate his health, hence there was no abuse of the right to a sick leave.

The SCC also took the position that in this particular case, travelling outside the place of residence cannot be considered as acting contrary to the prescribed therapy, having in mind the nature of the disease and the fact that it does not require limited movement, rest or lying down. However, in that case, if the employee did not obtain the permits of the expert medical body of the branch of the Republic Health Insurance Fund to leave the place of residence, this may be a reason to request a refund from the employee. However, the Supreme Court of Cassation concluded here that the loss of the right to receive salary compensation from the Health Insurance Fund during the temporary incapacity for work does not mean that the right to a leave due to temporary incapacity for work was abused.

Looking at the above-mentioned cases and the stated facts, it seems that the employer must be very careful when terminating an employment agreement on the basis of abuse of the right to a leave due to temporary incapacity for work, and that even in a situation where everything indicates an abuse, the employer must take into account what was actually prescribed by the doctor’s therapy to the employee. In other words, it is crucial for the employer to examine the facts objectively, as difficult as it might be.

On the other hand, the employer receives from the employee a Certificate of temporary incapacity for work and a Report on temporary incapacity for work, the so-called remittances, and is therefore deprived of the opportunity to get acquainted with the therapy prescribed to the employee and thus act adequately in the given case.

Accordingly, to properly conduct the proceedings for determining the abuse of temporary incapacity for work, it is necessary to follow the legal procedure and seek professional legal assistance that can be provided by lawyers with experience in the subject area and in labor disputes. Acting of the employer contrary to the legal procedure can be interpreted by the courts as an excessive invasion on the employee’s privacy, and a violation of the principle of protection of dignity of the employee at work, as well as the abuse of the right to terminate the employment agreement, which frequently happens in court practice.

TO BE CONTINUED…


[1] “Official Gazetter of the RS”, no. 24/2005, 61/2005, 54/2009, 32/2013, 75/2014, 13/2017 – decision of the CC, 113/2017 and 95/2018 – authentic interpretation

[2] Decision Rev2 1448/08 as of 17.09.2008

[3] Decision Rev2 30/2015 as of 22.04.2015

[4] Decision of the SCC, Rev2 1752/2015 as of 10.11.2016

FOR MORE INFO CONTACT:

Milinko Mijatovic

Milinko Mijatović

Attorney-at-law | Senior Counsel
Emilija Radojev

Emilija Radojev

Attorney-at-law | Senior Associate
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