The dismissal served for refusing the medical check is lawful

Court of Cassation, Labor Section, Order No. 22094, July 13, 2022.

The dismissal of the employee who refuses to undergo a medical examination ordered by the company before granting new duties must be considered lawful.

Thus, the Supreme Court in its Order No. 22094 of July 13, 2022.

In the case at hand, the Court of Appeal had rejected the appeal of the dismissal for just cause, deeming unjustified the refusal opposed by the employee, who had justified her unwillingness to undergo the medical examination by stating that the same would be aimed at the assignment of a task not in line with her professionalism.

The Supreme Court of Cassation confirms the assessment of the judges of merit, stressing, first of all, that the medical examination of suitability in the event of a change of duties is prescribed by law, and the employer's request for an examination prior to the assignment to the new duties, as correctly pointed out by the District Court, is not censurable and, indeed, is a due fulfillment. The omission of said visit, the Supreme Court notes, would have constituted a culpable and serious breach of duty on the part of the employer.

As for the assessment of whether or not the employee's refusal, because it was aimed at counteracting an unlawful demotion given that the new duties were deemed by the employee to be inconsistent with her job title and incompatible with her health, was or was not legitimate, the Supreme Court concludes that it was unlawful. Inasmuch as the employee could in any case have challenged the alleged unlawful demotion before the competent bodies.

And so, the Supreme Court concludes, the employee's reaction is in no way justifiable under Art. 1460 cc because, on the one hand, the employer had merely adapted its conduct to the requirements imposed by law for the protection of the physical conditions of employees in the performance of their assigned duties and, on the other hand, the employee could well have challenged any outcome of the visit, if not shared, or the alleged unlawful demotion, before the competent bodies.