Dismissal for regular illness absenteeism

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Subdistrict court of Groningen, 18 October 2010, www.rechtspraak.nl, ljn: BO2617


A company manufacturing products for the telecom industry has employed a 48-year old employee for thirty years. The employee works in a department with in total sixty employees. On 17 May 2010 there is a meeting with the employer, his manager and the employer’s interim HR consultant. The employee is confronted, during this meeting, with his illness absenteeism, which the employer considers to be high. It is agreed that an appointment with the company doctor shall be made, but that appointment does not take place. On 20 July 2010 there is a new meeting, in which a proposal to terminate the employment contract is addressed. The employee is also immediately suspended from his obligation to carry out his work. When the employee does not accept the offer, the employer applies to the subdistrict court to dissolve the employment agreement. In this application, redundancy pay is offered according to the subdistrict court formula, with adjustment factor 1.

Firstly, the subdistrict court finds that the application is not related to the legal prohibition on termination, because the application is based on regular absenteeism and not on incapacity to work, and because the employee was not incapacitated to work at the time that the application was submitted.

According to the subdistrict court, regular illness absenteeism is not, as a rule, a reason for termination or dissolution of the employment contract, and there are only exceptions to this if there are special circumstances. The starting points should be the same for dissolution of an employment contract or for an application for a dismissal permit. This means that the employer should demonstrate that the employee is regularly absent due to illness, that no recovery is to be expected within 26 weeks enabling the employee to resume work normally, and that the employer has no possibilities to reappoint the employee, within 26 weeks, in an another, adapted, job, possibly after training.

The subdistrict court finds that the application has to be rejected, if only because there was no regular illness absenteeism. In the past ten year, the employee only showed an above-average illness absenteeism in 2003 and 2010. The employer also failed to state anything about the prognosis of the absenteeism, while the employee has been capable for work already for some time. The employer did state that the absenteeism has a negative influence, both on the organization and on the acceptance by colleagues. According to the subdistrict court, illness absenteeism is a fact within any company and the employer has to deal with this. This would only be different for a very specific job for which an employee cannot easily be substituted. The employer has failed to clarify the organizational problems. Finally, the employer appealed to the business-wide policy to reduce illness absenteeism. According to the subdistrict court, this policy merely means dismissing employees with high illness absenteeism. The employer thus evades all rules on reintegrating employees who are incapacitated to work, and on offering suitable work.


Dismissal for regular illness absenteeism is not impossible, but should then not be based on the extent and frequency of the absenteeism, but on the disturbing effect on the organization of the work within the company. In principle, the employee cannot be blamed for being absent due to illness, and is no reason for dismissal. Wrongful illness absenteeism can be combated in other ways (i.e. by refusing to continue to pay wages during illness, where during wages claim proceedings the issue can be argued whether the employee is ill or not). The issue is really if there is a possibility for substitution. Smaller employers therefore usually have more possibilities for dismissal than larger ones. Also, dismissal for illness absenteeism should be a last resort. This does not appear to be the case here. An appointment for a meeting with the company doctor did not take place, and no attempt was made to find other work where the illness absenteeism would have caused less disturbance.

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