Dismissal for exceeding the sickness period

With its judgement no. 20761/18, the Court of Cassation, Labour Division, returned to rule on dismissal for exceeding the sickness period, confirming its opinion on the potential formal faults that may affect its validity. The ruling originated from the appeal brought by a worker against his dismissal for exceeding the sickness period, whose lawfulness had already been upheld by the courts of the previous two degrees. One of reasons at the basis of the appeal is that the worker had complained about the false application of the applicable rules, as the employer had failed to notify the employee of the imminent expiry of the sickness period. According to the employee, such failure resulted in the impossibility for him to exercise the right – guaranteed by the national collective bargaining agreement – to request a period of unpaid leave on expiry of such term. The Court of Cassation confirmed the lawfulness of the dismissal, clarifying and reiterating that there is no obligation from the employer’s part to notify the employee of the imminent expiry of the maximum sickness absence days, and that such a burden would not exist extensively, not even on the basis of the principles of correctness and good faith. In fact, the Court noted how such notification “would be used in truth to allow the employee to implement certain actions such as request for paid vacation or leave, essentially by-passing the verification of its unsuitability to carry out his obligations”, the latter being sufficient to exclude such information obligation. The Court of Cassation therefore took this opportunity to reiterate its orientation also in relation to other profiles pertaining to this type of dismissal. In fact, on one hand, the Court of Cassation remarked that Sundays and holidays, not covered by a medical certificate, although included between separate sickness periods, should be included in the calculation of the sickness period, unless proof is given of the actual interruption of the sickness in those days. On the other hand, the Court of Cassation noted that the obligation to communicate the reasons at the time of the dismissal for exceeding the sickness period does not require the indication of each separate leave, as it is sufficient – as happened in the case at hand – to indicate the full duration of the leaves. A dismissal for exceeding the sickness period is not equivalent to a dismissal for cause and, therefore, it is improper to speak of a confutation of leaves in this case. In the opinion of the Court of Cassation, the employer can indicate the total number of absence days occurred over a given period of time, without prejudice to the obligation for the employer, in case of legal proceedings, to submit and substantiate the elements that brought to the employer’s decision.