Cancellation and sick leave

Cancellation and sick leave

"I'm in poor health and have been off sick for over 5 months. Is there a risk that my boss will sack me?

Patrice, Geneva

When an employment contract is concluded for an "indefinite" period, termination of the contract is necessary to end the relationship between employer and employee. Either party is entitled to terminate the employment relationship without necessarily having to have any particular reason for doing so; an employee may simply have found another more interesting or better-paid position and an employer may prefer a new member of staff; however, the notice period stipulated in the contract or by law must be respected.

However, there are a number of rules to protect employees from taking too much leave, including provisions on collective redundancy, unfair dismissal and untimely leave.

According to the law, employees are protected, after their probationary period, against dismissal at an inappropriate time while they are performing military service and while they are unable to work due to illness or accident through no fault of their own. Another case of protection is provided by law during a worker's pregnancy and during the sixteen weeks following childbirth.

In principle, dismissal by the employer is not valid where the employee is totally or partially unable to perform his or her duties due to illness through no fault of his or her own.

It should be noted, however, that the duration of this protection is not unlimited and depends on the employee's length of service with the company. Unless there is a more favourable provision in the employment contract or a collective agreement in the sector, the employer may not terminate the employment contract during the first 30 days of sickness during the first year of service, 90 days from the second to the fifth year of service and 180 days from the sixth year onwards. In order to make this calculation accurately, it is important not to confuse a year of service, which begins on the effective date of commencement of employment, with a calendar year.

In conclusion, as you have been unable to work for 5 months, you only benefit from the protection described above if you were hired at least six years ago. You should also be aware that, despite this protection, you can be dismissed at any time for just cause, particularly when the relationship of trust between employee and employer has been irretrievably broken as a result of particularly unacceptable behaviour.