On July 7, the Supreme Court of Justice handed down a ruling on the conduct of a worker who, between May and July 2020, breached his duties by: refusing to show up for occupational health appointments; refusing to wear a visor as part of his work in a store; and being unjustifiably absent when his employer refused to allow him to work in the store without a mask or visor.
Among other issues analyzed in this ruling, and despite the fact that the grounds for just cause for dismissal in Article 351(1) of the Labor Code were met, namely: i) unlawful and culpable behavior by the employee; ii) the practical and immediate impossibility of maintaining the employment relationship; iii) the existence of a causal link, it is interesting to highlight one of the arguments put forward by the employee regarding the choice of occupational physician.
Since the Lisbon Court of Appeal ruled that the employee had no choice of occupational doctor, the appellant considered that there had been a clear violation of Regulation 707/2016, namely Article 15(1). With this in mind, he concludes that, as the employer continued to make appointments for him with company doctors or doctors indicated by the company, there was no breach of the duty of obedience, which would conflict with his rights and guarantees, under the terms of Article 128(1)(e), under penalty of violating his dignity, under the terms of Article 127(1)(a) of the CT.
But what are the underlying facts? At issue was the obligation for a worker to wear a mask, as dictated by the rules imposed by the Directorate-General for Health to minimize the spread of the COVID-19 disease. As the employee did not wish to wear the visor in his workplace for alleged medical reasons, the employer decided to make an appointment with the employer’s occupational doctor.
Now, after a referral to a specialist doctor by the occupational doctor, he concluded that the pathology suffered by the worker, even if it prevented him from wearing a mask, in no way prevented him from wearing a visor (contrary to what the first medical statement submitted by the worker said, it should be said).
For the avoidance of doubt, the employer decided to schedule additional appointments, which the worker repeatedly missed.
Taking all this into account, the ruling noted that, in addition to the employer’s duty to schedule the aforementioned appointments to assess the worker’s health condition in compliance with the Contingency Plan drawn up, this would also be established in the Legal Regime for the Promotion of Safety and Health at Work, which establishes duties and obligations for both ends of the legal employment relationship. Not only is it the employer’s duty to provide its workers with health and safety conditions by promoting the carrying out of appropriate health examinations to prove and assess the worker’s physical and mental fitness to carry out the activity, but also the worker’s obligation to undergo specialty and occupational medicine consultations, as set out in article 17 of this same regime.
Furthermore, it should be said that the user’s right to choose a doctor does not apply in this case. As the court explained, the right granted to the worker by Article 15(1) of Regulation 707/2016 of the Portuguese Medical Association only applies when medical care is being provided, as opposed to when there is a consultation with an occupational doctor.
In conclusion, although the rulings on pandemic times seem endless and far away, the fact is that these issues still contaminate the world of work.
Maria Beatriz Silva @ DCM | Littler
