According to the labor code, during the time of the absence due to an industrial accident or professional disease, the employment contract may be terminated by the employer only in case of gross misconduct or in case they prove that it is impossible to maintain the employment contract for a reason that is unrelated to the accident or the disease.

Case law adopts a restrictive approach of what constitutes gross misconduct.

It rules that only a breach of the loyalty duty by the employee may characterize gross misconduct. In the case at hand, the employee was a professional sportsman, who had refused during his sick leave, to follow the medical protocol with the team’s medical staff to prepare his return in good shape.

He alleged that this could not be held against him as he was released from any duty to work during his sick leave.

The court ruled that given the particularities of his job he was obliged to submit himself to the protocol needed to restore his ability, and that failing to collaborate (even during his sick leave) characterized a breach of his loyalty duty and a gross misconduct allowing the employer to terminate his contract.