It is a common case that when you start a new job or even in the course of the employment relationship, the employer provides you with a declaration to fill in, with which you can certify whether you have a decision issued by TEMC (Territorial Expert Medical Commission) and whether you are suffering from a disease specified in an ordinance of the Minister of Health, namely: ischemic heart disease, active form of tuberculosis, oncological disease, occupational disease, mental illness, diabetes.
In such a case, you might be wondering why the employer requires such information from you and whether this is in compliance with the law.
Requiring information by the employer about whether you are suffering from a certain disease is necessary and permissible, because according to the Labour Code, in certain cases such as closing part of the enterprise or downsizing, disciplinary dismissal, etc., the employer can dismiss a worker or employee suffering from a disease defined in an ordinance of the Minister of Health only if a prior permission of the Labor Inspection for each individual case has been issued beforehand. Presently, Ordinance No. 5/28.04.1987 regarding the diseases for the suffering from which workers have special protection according to Art. 333, para. 1 of the Labour Code, is relevant. It is important to be noted that the protection applies at the time the dismissal order is served.
In this regard, the employer has the right to collect preliminary information as to whether any of his workers or employees is subject to special protection upon dismissal. In the event that an employee certifies before his employer that he is suffering from a disease specified in Ordinance No. 5/28.04.1987, that employee is obliged to provide, upon request by the employer, the necessary medical documents which certify the data declared by the employee. When an employer wishes to dismiss a worker or an employee who is under special protection from dismissal, the employer must submit the documents certifying the health status of the employee to the relevant Territorial Expert Medical Commission (TEMC) for an opinion. The Commission has to issue an expert decision within 7 days. After receiving TEMC’s decision, the employer makes a written request to the relevant Labour Inspectorate which within 7 days gives or refuses permission for the employee’s dismissal. In such a case, it is assumed that the employer has fulfilled its obligations, has collected preliminary information on whether a certain worker or employee is suffering from a disease specified in the Ordinance and, if necessary, has requested the relevant permission for dismissal from the Labour Inspectorate.
However, what happens if a worker or employee declares false information before his employer, namely that he does not suffer from a certain disease according to the Ordinance, but in fact the worker or employee suffers from such?
According to the permanent and uncontroversial practice of the Supreme Court of Cassation, the protection under Art. 333 of the Labour Code is objective by nature and aims to protect the worker and the employee from the adverse consequences of the dismissal due to social and humane criteria. Therefore, in order this protection to be applied, it does not matter whether the worker has fulfilled his obligations under Art. 2 of Ordinance No. 5 of 1987, namely upon request to present to the enterprise medical documents (epicrisis, medical certificate, etc.) issued by the medical institutions in which he is being treated or where he is being filed in a dispensary register. What matters is whether on the date the dismissal order was served the worker was suffering from an illness specified in Art. 1 of the Ordinance. The practice allows only one exception to the principle that the protection has an objective nature, and that is when the worker has deliberately misled the employer by declaring that he does not suffer from an illness for which protection is provided. In all other cases, the failure of the employee to notify the employer of the illness or to submit documents about it has no legal significance for the effect of the protection under Art. 333, para. 1, item 3 of the Labour Code. This protection is applied regardless of whether the employer has been notified of the worker’s illness and whether medical documents concerning the illness have been submitted.
The above means that if you declare before your employer that you are not suffering from a disease specified in the Ordinance, but in fact you are suffering from such, then in case that you are dismissed and file a claim in court against your dismissal, the court will assume that you have acted in bad faith and thus the desired consequences, namely that the dismissal be declared as unlawful on that ground alone, will not occur.