Article 52 a) of the Workers' Statute provides that the employment contract may be terminated due to the employee's known or supervening inability to work after he/she has been placed in the company, with the right to receive a severance payment of 20 days' salary per year worked.
If an employee is declared "unfit" for his or her job, the company must seek an adaptation of tasks or relocation of the employee. Otherwise, or under certain circumstances, the employment contract may be terminated.
The concept of ineptitude refers to an inability or lack of professional faculties of the worker, either due to a lack of preparation or updating of knowledge, or due to deterioration or loss of work resources, perception, dexterity, lack of concentration, speed, etc.
In the event that the incapacity is due to a deterioration or loss of physical or mental conditions that prevent the worker from performing the tasks of the job, it must be of a certain entity and of a permanent nature. This is the case when, for example, as a result of an accident at work, the worker is practically unable to perform any of the main tasks of his profession.
Normally in these cases the worker - after one or more periods of medical leave - is declared to have a total or absolute permanent disability (PI) and is therefore entitled to the corresponding Social Security benefit and the employment contract is terminated.
However, there are cases in which, despite the fact that the worker suffers limitations that may significantly affect his professional capacity, the INSS considers that these are not sufficient to declare him to be affected by a PI, and therefore the benefit is not recognized and the worker must return to the company at the end of the medical leave.
In these cases, if the company considers that the worker does not meet the physical or mental conditions to provide services and decides to terminate the contract, it may do so using the cause set forth in art. 52 a) of the Labor Code: supervening unfitness.
The burden of proof of such unfitness lies with the employer, who, in order to prove the physical and/or mental circumstances of the worker, usually uses reports issued by medical services that, after examining the affected person, determine whether he/she is fit to provide services.
Well, a recent ruling issued by the Supreme Court in unification of doctrine has established that a medical report declaring the worker unfit is not in itself sufficient to prove the supervening unfitness, declaring the dismissal for such cause as unjustified.
THE CASE IN QUESTION
A construction worker applies to the INSS for permanent disability after several medical leaves due to a lumbar and sacroiliac degenerative pathology. The INSS denies the IP benefit.
For its part, the company, before the employee returns to work, requests a medical report from its external prevention service.
The external prevention service declares the worker unfit to provide services, although in its report it does not explain the limitations affecting the worker, nor their influence on the performance of the functions of the job (foreman).
The company informs the employee of his objective dismissal due to supervening ineptitude.
Although the letter of dismissal detailed the functions of the employee's position as site foreman, it did not identify his limitations, nor did it justify the reasons for which it was understood that due to these limitations, he was unable to perform the functions of a site foreman.
The SC ruled in unification of doctrine and considered that the termination of the employment contract was an unfair dismissal since it was based exclusively on the report of the prevention service; however, the report did not identify the functional limitations of the employee, nor did it specify in what way they prevented him from performing the listed functions, limiting itself to stating that they affected his ability to drive, but without explaining the reasons for this limitation.
This pronouncement does not imply that the medical reports are deprived of their evidentiary value in order to prove the cause of termination of the contract due to supervening unfitness, but it is necessary that their content be adjusted to that established by the High Court.
Therefore, in order for the medical reports to prove the existence of such supervening unfitness -especially when the INSS has ruled out the worker's declaration of IP for the performance of his usual profession- it is not enough to simply state that the worker has lost his aptitude for the performance of the job, because he has been classified as unfit, but it will be necessary to detail the functional limitations of the worker and his affectation for the exercise of the functions of the job.
Important data:
The company is obliged to demonstrate the worker's incapacity objectively and to explore adaptation and relocation options before proceeding to terminate the contract.
In the event of dismissal, the employee may file a claim if he/she considers that the company is not acting correctly.
Both the employee and the company should seek legal advice to know their rights and obligations in this type of situation.
