Cassation Court: illness and poor performance

With its ruling no. 16472 of 5 August 2015, the Cassation Court clarified that, in the presence of repeated absences from work due to illness, the employer cannot dismiss a worker for poor performance. Specifically, the judges explained that absences due to illness cannot be used as grounds for justified dismissal – including in light of other subjective parameters such as inexperience, negligence and incapacity – due to insufficient performance by a worker, since the illness is considered only for the purposes of exceeding the protected period. The principle expressed in the ruling in question is in sharp conflict with that contained in the ruling no. 18678/2014 of the same Cassation Court. The latter ruling had expanded the concept of poor performance considering this type of dismissal lawful in cases where a repeated and incorrect use of on and off absences for illness – in addition communicated by the worker only at the last minute and taken near days off – negatively affected the company’s organisation.