Can an employee be dismissed from work during the period of incapacity?

The employee has taken a leave of absence due to illness, does not answer phone calls and does not contact the employer. In the case of dismissal from work, he will not be paid the sick leave, and it may also be a reason for a complaint to the State Labor Inspectorate. Is there a legal basis to dismiss an employee from work on the third day, or should we wait until the employee returns to work and the notice period expires, if the employee has not submitted a written application with a request not to include the period of temporary incapacity in the notice period?

The employer's notice of termination

The employer has the right to terminate employment relationships three days in advance by giving written notice to the employee only if the employment legal relationship is terminated while the employee is on probation. This procedure is laid down in Section 47, Paragraph 1 of the Labour Law (LL).
In other cases, it is necessary to take into account Article 101(1) of the LL which specifies the cases when the employer has the right to terminate the employment contract in writing. When establishing employment relationships in the cases provided for in Article 101(1) of the LL, the employer must comply with the notice periods specified in Article 103(1) of the LL. If a longer notice period is specified in the collective agreement or employment contract, the employer has the obligation to comply with it.
In accordance with Article 103(2) of the LL, an employee has the right to request the employer not to include the period of temporary incapacity for work during the notice period. These are the exclusive rights of the employee, which he or she is entitled to exercise both in the case when the employer's notice of termination during the probationary period has been received and in the case when the employer's notice of termination has been received in accordance with the cases listed in Article 101(1)(1) to (10) of the LL.
In order for an employee to be able to exercise his or her exclusive right to request that the period of temporary incapacity not be included in the notice period, he or she needs to take active action and request in writing from the employer to extend the notice period. If the employee has not exercised his or her rights and the notice period has expired, for example, during illness, then the employment legal relationship terminates after the time period specified in Article 103(1) of the LL, because the LL does not provide for a restriction to terminate employment relationships during the period of temporary incapacity for work.

Termination of employment relationships

Assuming that the employer has terminated the employment contract during the probationary period before the beginning of the temporary incapacity for work and the employee has not requested an extension of the notice period, there is a legal basis to terminate the employment relationship on the third day. If the notice of termination before incapacity has been issued to an employee who is not on probation and the employee has not requested an extension of the notice period, the employer has the right to terminate employment relationships in compliance with the notice periods specified in Article 103(1) of the LL. In this case, in addition, a significant period of notice specified in the employment contract, collective agreement or law.

Source: iBizness