DLP Insights

A late medical certificate justifies absence

Categories: DLP Insights, Legislation | Tag: Corte di Cassazione

29 Nov 2022

The Italian Court of Cassation, with judgment No 33134 of 10 November 2022, established that there is no unjustified absence if a worker delivers the medical certificate of illness after receiving the disciplinary complaint.

The facts of the case

Following an unjustified absence lasting seven days, a worker was dismissed for just cause. Both the Florence Tribunal and Court of Appeal held that the dismissal was unlawful because there was no basis for the dismissal. This is because, from the analysis of the facts of the case, it emerged that, on the date of giving notice of the dismissal, the medical certificate – which retroactively covered the entire period of absence subject to the disciplinary dispute – had been sent to the employer.  The judges on the merits observed that two distinct provisions of the national collective bargaining agreement (Contratto Collettivo Nazionale del Lavoro – CCNL)applied to the employment relationship, namely unjustified absence and late or irregular justification, sanctioning the first with dismissal and the second with a fine but continuing the employment relationship. In view of this contractual framework, the dismissal for just cause imposed by the employer was therefore to be considered unlawful, with a consequent order against the employer to reinstate the worker and to pay compensation of damages commensurate with the months not worked, in addition to the payment of social security contributions.

The employer company filed an appeal to the Italian Court of Cassation against the decision of the Italian Court of Appeal.

The judgment of the Italian Court of Cassation

The Italian Court of Cassation, in rejecting the appeal filed by the company, confirmed the unlawfulness of the worker’s dismissal. Starting from an analysis of the disciplinary regulation contained in the Textile and Clothing CCNL applied to the employment relationship, the Court highlighted that, from a literal reading of the regulations, it appeared that the parties to the CCNL intended the sanction of dismissal to apply only in the case of an unjustified absence and not to late justification of the absence.

It follows that the delivery of the medical certificate after the start of the disciplinary action means that there is no unjustified absence and only late justification of the absence, with the consequent unlawfulness of the sanction of dismissal.

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