Anyone who has a permanent job cannot simply be dismissed, not even in the event of illness. However, it is a completely different story when you are ill for a long time. In this case, the employer only has to pay costs to his employee without doing any work. How does that work legally? What are the rights and obligations of both employer and employee?
Permanent contract or temporary contract
There is a big difference between dismissal law and the type of contract. For a fixed-term contract, termination applies by operation of law. This means that a contract automatically expires at the end of the contract term. An annual contract is therefore terminated after one year, unless the employer and employee agree to extend the contract. The renewal may not be more than twice and not longer than three years. The contract must then be converted into a permanent contract (for an indefinite period). An employee who becomes ill during a temporary contract may not be dismissed because of his illness. However, the employer has no obligation to extend a temporary contract. If the employee is ill for a long period of time, the logical consequence is often that the employer does not extend the contract. This is very different with a permanent contract.
Can you just be fired if you become ill?
The employee is well protected by the government against dismissal. With a permanent contract, the employer may not simply dismiss his staff. There are some exceptions to this:
- Dismissal by mutual consent, where both parties agree to dismissal.
- Immediate dismissal, such as fraud, refusal to work or theft.
- Voluntary dismissal, when the employee wants to quit his current job.
- Dismissal requested by the employer at the CWI: the reason must be well substantiated and the employer is always heard by the CWI.
- Prolonged illness.
In the case of long-term illness, we refer to the employee’s illness for two years and longer. The employee is incapacitated for work and therefore cannot perform work for the employer. How the disease originated is not important. It is important that it really concerns illness. An employee who reports sick and then works elsewhere during his ‘illness’ runs the risk of being summarily dismissed. Anyone who has deliberately become incapacitated for work is also not entitled to continued payment in the event of illness (i.e. sickness benefit).
The procedure: from illness to discharge
When you as an employee are sick, you report sick to the employer. In some cases you must also inform the occupational health and safety service or the company doctor, but in most cases the employer will arrange this. You do not always get paid from day 1: there is usually one or two waiting days during which the employee is not paid anything. This must be stated in the employment contract. In the first year of illness you will continue to be paid a minimum of 70% and a maximum of 100% of the salary. If the wage falls below the minimum, the employer supplements this up to the minimum wage (in proportion to the number of contact hours). During the second year of illness you will continue to be paid 70% of his salary. If the wage now falls below the minimum wage, you can request a supplement from the UVW. As a sick employee, you are always obliged to allow an examination by the company doctor. After the first report of illness, you can expect a phone call or a visit from an absenteeism management employee. The sick employee must stay at home until 6 p.m. every day until the appointment. After this visit you are not obliged to stay at home. A call from the company doctor for an interview or examination must be complied with. Anyone who does not comply with these rules will temporarily no longer receive sickness benefits. There may also be a fine.
An employee who is disabled must return to the labor market as quickly as possible. Together with the UVW, the employer, occupational health and safety service and/or company doctor, we will determine what work you can still perform. This can be with your own employer, but also with another employer. Sometimes you can go back to work for your own employer, but for fewer hours or with adapted work. This entire process is called reintegration. It is important that you always cooperate in reintegration. Both employer and employee must be fully committed to this. If after two years it appears that the employer has not made sufficient efforts for reintegration, the employer is obliged to continue to pay you wages for another year. If you have not committed yourself sufficiently, this may have consequences for your further benefits. After a year and a half of illness you can apply for WIA benefits. You need the reintegration report from the employer for this. This describes what has already been done to get you back to work. The UVW assessed this report. If it appears that both employer and employee have made sufficient efforts to achieve this, the WIA benefit application will be approved.
Dismissal by the employer
After two years of illness, the dismissal ban expires. As an employer, you are no longer protected against dismissal in the event of illness. Under certain conditions, the employer may dismiss you. If you agree, the employer may dismiss you without requiring approval from the UVW. If you do not agree, the employer must apply for a dismissal permit from the UVW. The employer must state in a letter what has been done to get you back to work and send the associated documents. UVW will process the application. This takes an average of four to six weeks. The UVW’s decision is binding: employer and employee cannot appeal against it. If you do not agree with dismissal, do not commit to anything, either verbally or in writing. Always ask a lawyer for advice first. Do not sign any paper until then.