In a recent decision, the Curia has ruled that the justification of absence is closely linked to the duty to cooperate and inform. The duty of cooperation is imposed on the employee during the period of exemption from the obligation to work and without a specific request from the employer (BH 2024.6.141 I.).
In the present case, the plaintiff employee had worked as a sales manager for a company for 16 years. In the year 2022, he did not report to work for several months and only provided late or partial proof of his absence. The employer repeatedly requested the employee to send medical certificates. The employee submitted a medical certificate several weeks later, in September 2022, but again it only partially justified his absence. Despite repeated requests, the employer failed to provide adequate proof of his absence, which ultimately led to immediate dismissal. The text of the immediate termination notice reads. “The employer was informed on 8 September 2022 that your incapacity for work ceased on 31 July 2022, from the medical certificate you sent on 7 September 2022. The employer asked you to send the certificate for the period from 1 August 2022 to 26 August 2022 without delay, which notice you received on 9 September 2022. To date, you have failed to provide the employer with the certificate, which is in material breach of a material obligation arising from your employment, and your employment is terminated with immediate effect.“
In his action, the employee claimed that he was unable to receive the employer’s notice until later because he was abroad and that he was therefore objectively unable to comply with his obligation immediately. He also claimed that he was informed only belatedly that his inactive status had been terminated.
In the judgment at first instance, which was subsequently reversed, the court of first instance partially upheld the action, based, inter alia, on the fact that the return receipt showed that the employee had not personally received the employer’s notice of termination of his employment. The court of first instance did not consider the other conduct of the plaintiff complained of in the summary dismissal – the failure to provide proof of his previous incapacity to work on 20 September 2022 – to constitute a serious breach of obligations of a significant nature. In that regard, it assessed the fact that the plaintiff had been absent from work for approximately six months and that, in accordance with established practice, he had subsequently provided proof of his absence after a longer period of absence. In the circumstances, which were not disputed by the parties, such as the 16-year employment relationship, the continuous contact between the parties, the electronic correspondence, the fact that the plaintiff was available at all times, complied with the defendant’s instructions and attended the medical examination, the plaintiff’s breach of obligations could not reasonably have resulted in the immediate termination of his employment relationship, which was therefore unlawful.
On appeal by the parties, the court of appeal altered the judgment of the court of first instance and dismissed the plaintiff’s action. Contrary to the judgment of the court of first instance, the court of appeal found that the reason for the immediate dismissal, namely that the plaintiff had not justified his absence, was clear and, on the basis of the evidence adduced, proved to be a valid reason. The court emphasised that, by not informing the employer that she had become unfit for work, the plaintiff had breached her obligation to cooperate under Article 6(4) of Act I of 2012 on the Labour Code (‘the Labour Code”), a fact of which the employer had only become aware on 8 September 2022. The plaintiff knew and did not dispute during the proceedings that he had a certificate of sick leave only until 31 July 2022 and that, as a result of his duty to cooperate, he should have consulted his general practitioner and taken steps to regularise his sick leave after that date, which he failed to do.
The court of appeal stressed that the plaintiff did not have one day to justify his absence, because this obligation had already existed since the beginning of August 2022, and therefore the court of first instance’s conclusion that the failure did not constitute a serious breach of obligations was also wrong.
The plaintiff employee brought an application for review before the Curia. The Curia found that the employee’s application was unfounded.
In the opinion of the Curia, the receipt of the employer’s notice and other circumstances cannot be relevant when assessing the seriousness and significance of the plaintiff’s breach of duty, because if the employee does not provide adequate justification for his absence of more than three weeks, the immediate termination of the employment contract cannot be considered as a breach of the employment contract. 78 (1) (a), the immediate termination based on genuine unjustified absence is reasonable.
The Curia pointed out that the proof of absence could be interpreted within the framework of the duty to cooperate and inform, which are fundamental obligations incumbent on the employee even during the period of exemption from the obligation to work and without the employer’s request, and therefore, contrary to the view of the court of first instance, the date on which the letter from the employer requesting proof of absence was received by the plaintiff was irrelevant.