With its order no. 26709 of 1 October 2021, the Court of Cassation expressed its opinion on the legitimacy of dismissals of workers who are caught carrying out activities incompatible with their medical condition, while being absent for illness.
The Supreme Court ruled on the legitimacy of the dismissal for just cause of an employee (who suffers from acute lumbar and sciatic pain) for keeping a lifestyle incompatible with the disease that afflicted him (the worker was caught lifting and handling bags of soil) while being absent for illness. In addition, this lifestyle was likely to affect his recovery and return to work.
The court reached that conclusion based on the findings of the appointed medical examiner who deduced that the symptoms suffered by the employee would have allowed him to carry out the tasks assigned within the limitations imposed by the company physician. Also the court-appointed expert found that the patient’s activities during his absence due to illness, if they are proved, would have prolonged the period of clinical recovery.
The proportionality assessment of the expulsion sanction was confirmed, as performance of other activities by the employee absent due to illness conflicted with the general duties of fairness and good faith and specific contractual obligations of diligence and loyalty.
The worker appealed to the Court of Cassation, citing the infringement and misapplication of Art. 18, paragraph 4, Law no. 300/1970, as his first ground of appeal, arguing that the conduct carried out during the period of illness constituted mere tasks of daily living (pointing out the modesty of the effort made, which consisted in carrying “two simple bags”). He claimed that the medical condition from which he was suffering should be considered to be proven in the light of the recorded medical certificates.
Continue reading the full version published in Norme & Tributi Plus Diritto of Il Sole 24 Ore.
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