Employees Reservation to Work

Employee’s Reservation to Work

This article details a case where an employee tried to put restrictions (legally, a reservation) on his workload on return to work after sickness.

The employment law has social elements, since it imposes a duty upon the employer to provide safety at work and in case the employment is terminated, he has the duty to prove that the termination was not illegal. There is a legal presumption for the benefit of the employee that he did not terminate his employment himself lawfully; however, the aforesaid presumption does not allow the employee to set reservations when returning to work after being absent due to illness or injury. It is unreasonable for the employee to create a dilemma to the employer regarding his ability to work upon his return, as well as to expect the employer to determine whether the employee is fit or not to undertake fully his work duties.

The production of an ambiguous and not clear medical certificate justifies the employer to ask for clarification and entitles him to refuse the employment of the employee, unless the latter submits a medical certificate clearly stating the hours he can work or that he is in a position to offer his services without any reservations.

In a labour dispute, the Supreme Court set aside the judgement issued against an employer, deciding that the employee has no right to create a dilemma to his employer regarding his ability to return to work. The labour dispute arose due to the fact that the employer refused to allow the employee to return to work as a bus driver because the latter submitted a medical certificate setting reservations with regard to his ability to undertake fully his work duties.

The employee was absent from work due to medical problems with his left knee and the medical certificate he submitted was not clear but it stated that he could start work gradually without having to drive for many hours. The employer did not allow him to resume work, considering that the contents of the medical certificate were too general and vague. Therefore, he requested the employee to provide him with a new medical certificate from his doctor which should have been precise as to his ability to work, without setting any reservations. Furthermore, the employer provided him with an application to fill and submit to the Social Insurance for payment due to illness, but the employee refused, claiming that he was not ill.

The employee insisted to return to work and the employer had no alternative but to demand from him a medical certificate stating either that he was able to drive for certain hours per day for a specified time period and that the rest of the hours to be considered as sick-leave or that he was in a position to resume fully his duties without any reservations. The employer made it clear to him that he could not employ him under the circumstances, since there would have been a risk for the safety of both the employee and the passengers. In view of this, the employee resorted to the Labour Court, alleging that he was forced to resign from work and therefore, he claimed compensation from the employer.

The Labour Court decided in favour of the employee stating that it was the employer who had to conduct the necessary actions to find out whether the employee was in a position or not to offer his services and that the employer left him out of work illegally, depriving him the right to earn his living and therefore, it awarded the employee with compensation.

The Supreme Court dealing with the appeal of the employer, disagreed with the judgment of the Labour Court and set it aside, deciding that the medical certificate, objectively seen, could not lead to the conclusion that the employee was in a position to return to his work. It also stressed out that the certificate was not clear, but it was ambiguous and it was upon the employee to clarify his position. It seemed that the employee was seeking not to drive for many hours, without him or his doctor specifying how many hours he was able to work. The employer had no obligation to conduct a search by referring the employee to a doctor of his choice in order to establish whether the employee was in a position to work or not.