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.