According to Article 333(1)(3) of the Labour Code, an employer may dismiss a worker or an employee suffering from an illness as defined in Decree No 5/20.02.1987 on illnesses, entitling employees suffering from them to specific protection in accordance with Article 333(1) of the KT only with the advance authorisation of the Labour Inspectorate on a case-by-case basis. The protection applies to the termination of the employment relationship in the event of the closure of a part of the undertaking or lay-offs; in the event of decline in the workload; if the worker or employee does not have the qualities to perform the work effectively; if the requirements for the position change and the worker or employee does not satisfy them, and dismissal on disciplinary grounds. This protection does not apply where the employment relationship is terminated on another ground. The protective procedure under Article 333 of the KT is a precondition which the employer is required to comply with when dismissing the workers or employees referred to in the protective provision of Article 333 of the KT.
Decree No 5 confers protection in the event of partial liquidation, abolition of posts or suspension of operations for more than 30 days for employees suffering from ischaemic heart disease, active tuberculosis, cancer, an occupational disease, a mental illness and diabetes.
In order to apply for advance authorisation to terminate an employment contract on one of those grounds and in conjunction with Article 333(1)(3) of the Labour Code, it is necessary that the employer has gathered sufficient information that the employee suffers from the illness in question. Any worker or employee suffering from any of the referred illnesses is required to produce, on request, medical documents from the medical and preventive care establishments where he or she is treated or registered for regular medical check-up, or a decision of the labour expert medical committee, if there is any.
Prior to dismissal, it is also imperative that the opinion of the TELK is taken. The TELK draws up its opinion and sends it to the employer, and the employer submits it, together with the reasoned request for authorisation, to the relevant labour inspectorate. Requesting this opinion is mandatory but the labour inspectorate is not obliged to comply with it.
The main legal consequence of the failure to comply with the advance protection in the event of dismissal is that the dismissal is unlawful and the court annuls the dismissal order on that ground alone, without examining the substance of the employment dispute.
Reference: Article 333(1)(3); Article 333(2) and Article 344(3) of the Labour Code; Decree No 5/20.02.1987 on illnesses, entitling employees suffering from them to specific protection in accordance with Article 333(1) of the KT.