The Supreme Court Upholds the Dismissal for Just Cause of an Employee Who Used Parental Leave to Work at His Wife’s Seaside Resort Instead of Caring for His Children
Parental leave, governed by Article 32 of Legislative Decree no. 151/2001, is an instrument designed to protect parenthood, conceived to allow working parents to devote time to caring for their child in the early years of life, meeting the child’s emotional and relational needs. However, although this right is characterized as a prerogative right (diritto potestativo), it is not without limits, and its exercise is strictly bound to the purpose for which it was established. With its recent order no. 24922, issued on 9 September 2025, the Court of Cassation once again addressed the sensitive issue of the abuse of this measure, confirming the legitimacy of dismissal for just cause imposed on an employee who had used parental leave for purposes other than caring for his children.
The Case at Hand
The case originated from the disciplinary dismissal imposed by a company on one of its employees for abusing parental leave.
The Court of Appeal of Reggio Calabria, overturning the first-instance decision, upheld the lawfulness of the termination, finding that the employee, during his period of absence from work (specifically on 9, 14, 15, and 16 August 2019), had engaged in work activities at the seaside resort managed by his wife, thereby neglecting the direct care of his children and, in particular, of his three-year-old child. According to the Court of Appeal, such conduct distorted the very purpose of the measure, even making it necessary to resort to external help to compensate for his absence, in clear conflict with the purpose of parental leave, which is to foster the father–child relationship. Against this ruling, the employee lodged an appeal before the Court of Cassation.
The Decision of the Court of Cassation
The Court of Cassation dismissed the appeal in its entirety, providing important clarifications on the limits of the exercise of the right to parental leave and on the reviewability of abusive conduct.
The Court reiterated that parental leave is a prerogative right (diritto potestativo), the exercise of which, however, is not arbitrary but functionally oriented toward the direct care of the child. Engaging in any other activity not strictly related to this purpose constitutes an abuse of rights and a breach of the principle of contractual good faith, both towards the employer—who is unjustly deprived of the employee’s performance and suffers a breach of trust—and towards the social security institution, through the undue receipt of benefits and the diversion of welfare support from its intended purpose.
In its reasoning, the Court also referred, by analogy, to its well-established case law on leave granted under Law no. 104/1992 (among many: Cass. no. 12679/2024, no. 6468/2024, no. 25290/2022, no. 1394/2020). In this regard, the Supreme Court affirmed that the episodic nature of the conduct is irrelevant: any deviation from the legitimate purpose is sufficient to constitute a serious misconduct capable of irreparably undermining the fiduciary relationship between employee and employer.
Indeed, the principles set forth are paradigmatic in delineating the boundaries of abuse of rights and in qualifying the conduct of employees who use protective measures granted by law for purposes unrelated to those for which they were provided.
Investigative Checks and Limits of Legitimacy
Verification of such abuses often takes place through targeted monitoring, in particular by investigative agencies. On this point, case law is clear: Article 4 of the Workers’ Statute prohibits any form of direct surveillance of work activity but permits defensive checks aimed at verifying fraudulent conduct unrelated to the performance of work duties.
For example, the Court of Cassation (most recently, Order of 12 February 2025, no. 3607) upheld the dismissal for just cause of an employee who, after clocking in, left the workplace to attend to personal matters, ascertained through a private investigator. Similarly, with Order of 30 January 2025, no. 2157, the Court held that the use of investigative agencies to verify abuse of leave under Law no. 104/1992 is lawful, provided there are well-founded suspicions and the investigations are proportionate and non-invasive.
Thus, investigative monitoring is lawful if limited and justified: it may never become generalized surveillance but must have as its sole objective the verification of conduct detrimental to the company’s interests or to the enterprise’s reputational assets (Cass. no. 30079/2024).
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