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Dismissal of an employee from the enterprise in case of prolonged illness

Our company has a security guard who has been hospitalized for more than half a year due to a complex illness. After surgery, he still needs to undergo a rehabilitation course of at best 8 months. And after that, he is unlikely to be able to perform his duties properly, since he will receive a disability. Is there any legitimate opportunity to fire this employee?

According to Part 3 of Art. 40 of the Labor Code of Ukraine shall not be allowed dismissal of an employee at the initiative of the owner or his authorized body during his temporary disability (except for dismissal under paragraph 5 of this Article), as well as during the employee's vacation.

According to item 5 of Art. 40 of the Labor Code of Ukraine failure to appear for more than four consecutive months due to temporary disability, not counting maternity leave, if the legislation does not specify a longer period of preservation of a place of work (position) in a particular illness, is the reason for dismissal on the  initiative. For workers who have lost their disability due to work injury or occupational disease, their place of work (position) is maintained until they are able to return to work or to establish disability.

Although this article provides that legislation may stipulate a longer period of employment at a particular disease, there is no specific list of such diseases.

According to paragraph 4.1. Instructions on the procedure for issuing documents proving temporary incapacity of citizens approved by the Order of the Ministry of Health of Ukraine of November 13, 2001 N 455 in the presence of a persistent or irreversible nature of the disease, and in the case when the patient was dismissed from work within four months of on the day of onset of  temporary disability or for five months in connection with the same disease for the last twelve months, and for tuberculosis for ten months from the day on disability status, medical and preventive care facilities at the place of residence or treatment within ten months from the  date of incapacity, the patient is referred for examination to the medical and social expert commission (MSEC).

So, if the illness of the aforementioned employee is not related to labor injury or occupational disease, and is not a tuberculosis disease, then the only correct, from the point of view of law, decision will be to dismiss him according to item 5 of Article 40 of the Labor Code of Ukraine - absence from  work for more than 4 consecutive months. The reason for such release is a sick leave or other documentary evidence from a health care institution about his illness for more than four months.

However, according to Part 1 of Art. 2 of the Law of Ukraine "On the amount of contributions to certain types of compulsory state social insurance" temporary disability assistance due to illness or injury, not related to an accident at work, is paid to insured persons by the Social Security Fund with temporary disability disability for the whole  period before the restoration of working capacity or before the establishment of disability regardless of dismissal by the medical and social expert commission (MSEC) the person in the period of disability in the manner and in the amount prescribed by law.

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