Lack of unjustified tax inspection in the event of non-urgency

The Court of Cassation, under order no. 24492 dated 1 October 2019, clarified the correct scope and application of Article 5, paragraph 14, of Law no. 638 dated 12 September 1983. It specifically stated that the justified ground for exempting an employee who is ill from the obligation to be available for a home check-up corresponds to any fact which, on the basis of average judgement and common experience, may make it plausible for the worker to be away from home, without, however, being able to recognise any reason for convenience or opportunity.

Facts of the case

In this specific case, an employee, without having given any prior notice to the employer, was absent from the medical home check-up carried out by the Italian National Social Welfare Institute. The employee, in disciplinary and procedural terms, had justified himself by stating that, during the visit, he had accompanied his seven-year-old son to hospital for ordinary hospitalisation.

In the merit proceedings, both the Court and the Court of Appeal with territorial jurisdiction had ascertained the legitimacy of the disciplinary sanction of the fine imposed upon the employee by his employer company.

Specifically, the District Court, in confirming the decision at first instance, had pointed out that only urgent hospitalization at the time corresponding to the tax inspection could justify the employee’s absence from home during the periods of availability, whereas the ordinary hospitalisation (or follow-up visit) had no sign of urgency.

In any event, according to the Court of Appeal, the situation in question did not preclude the possibility of prior notification of absence to the employer.

The employee appealed to the Court of Cassation against the judgement.

The stance of the Court of Cassation

The Court of Cassation considered the application made by the Court of Appeal of Article 5, paragraph 4, of Law 638/1983 to be correct, according to which the justified reason for exempting an employee in a state of illness from the obligation to be available for a home check-up does not apply only in cases of force majeure. Said reason corresponds to any fact which, on the basis of average judgement and common experience, may make it plausible for the worker to be away from home, without, however, being able to recognise any reason for convenience or opportunity. The justified ground for exemption must, in fact, consist of a sudden and compelling situation of need that makes it urgent for the worker to be present in a place other than his home during the hours of availability.

Consequently, in order to establish the lawfulness of the absence, it must be ascertained that there is a causal link between the time when the emergency situation occurs and the time of absence from home during the period of availability. In this specific case, said link would have existed, at most, during the night (when the worker had accompanied his son to his first admission to the emergency department), but had not used to the time of the tax inspection for this purpose. The visit, in fact, took place in the late morning, when the worker had not proven any urgency to justify his absence from home during the periods of availability and had failed to give prior notice to the employer.

The Court of Cassation thus declared the worker’s appeal inadmissible and ordered him to pay the costs of the proceedings.