Employee’s state of health as a reason for termination of an employment contract at the initiative of the employer

Abstract

The grounds on which the employer is allowed to terminate the employment contract with the employee are considered if the employee's inconsistency with the position or job is established. It is emphasized that dismissal of an employee is allowed in case of a discrepancy due to a state of health, which hinders the continuation of this work, if it is impossible to transfer him to an easier job due to the absence of a vacant job or refusal to transfer. A characteristic feature of dismissing an employee due to poor health is the lack of guilt. The inability of the employee to perform his or her work duties is linked to the state of health and does not depend on his will and desire, and therefore cannot be blamed on him. The article proves that temporary disability cannot be considered as a reason to dismiss a worker.

According to the medical report, the owner or his authorized body must transfer such persons with their consent to such work temporarily or without a time limit. Such transfer of an employee is possible under the conditions on which both medical and legal basis can be.

In the case of refusal of the employee to transfer or absence at the enterprise of work that he could perform without harm to his health, the owner or his authorized body may raise the issue of his dismissal in due course due to the found inconsistency of the occupied position or performed work due to a state of health that impedes the continuation of this work (paragraph 2 of Article 40 of the Labor Code of Ukraine). Such dismissal shall be allowed in the exceptional cases where the owner or his authorized body really does not have the opportunity to transfer the employee upon his or her consent to another job according to a medical report.