Legal Advice: Injured Master Keeps His Job
Due to a knee injury, sustained during a game of amateur football, master Koen is 20 percent incapacitated for work. In such a case, dismissing him is not allowed, according to this episode of Raad en Daad.
Picture: Type tank
Meester Koen has been working full-time for a foundation in primary education for ten years now, in the position of group teacher. He thinks the work of a primary school teacher is fantastic. In his spare time, master Koen is active as a field player for the local football club. After a tough duel for the ball, he seriously injured his knee. As a result, he is no longer able to stand for longer periods. In addition, his inability to perform work affects his psyche. Koen calls in sick.
tax
After three months of being completely ill, he starts reintegrating. First for half a day a week, then this is gradually built up to four full days. The company doctor indicates that four full days of work is the maximum for Koen in terms of load. After having been ill for 104 weeks, there is an examination under the Work and Income according to Capacity for Work Act (Wia). The UWV has ruled that Mr Koen is 20 percent incapacitated for work and ineligible for a Wia benefit, because an employee must be at least 35 percent incapacitated for work. Master Koen now wonders whether his employer can fire him on the grounds of long-term illness and turns to the AOb for advise.
Master Koen now wonders whether his employer can fire him on the grounds of long-term illness and turns to the AOb for advise
The Primary Education Sickness and Occupational Disability Regulations (zapo) are one of the pillars that must be assessed if an employee in primary education is ill for 104 weeks: the waiting time for the Wia. In principle, no dismissal will follow for an employee who is declared unfit for work for less than 35 percent. Unless there is an important service interest. In any case, this is the case if retaining the employee leads to serious financial problems for the employer, a heavy legal test that employers cannot easily pass. In short, in principle there will be no dismissal if the sick employee is found to be 65 percent or more capable of working. The collective labor agreement prescribes that in the latter case employers must jointly lay down agreements in writing relating to the new working hours and the new salary.
Regulation
For Master Koen this means that he will remain employed by his employer. This is partly because the UWV considers him to be 80 percent fit for work. His full-time employment is reduced to four days, as working five days is too taxing for him. His salary will also be adjusted. The collective labor agreement for primary education also provides for a scheme for the so-called group of '35-unders', less than 35 percent who are unfit for work, under which 65 percent of the difference in the old and new salary will be compensated for a period of five years.
If an employee suffers a reduction of at least 20 percent due to illness, he is also entitled to a partial transition payment. This is based on new case law of the Supreme Court, which was partly established by a case of AOb-lawyer Joost Aarts.
This is a contribution from the Council and Deed section of the Education magazine. AObmembers receive the magazine eleven times a year in the mail. Know more about it AOb-membership? Click here.
