Carrying out a working activity during one’s leave may be a cause of dismissal

The Court of Cassation, with its judgement No. 6893 of 20 March 2018, declared the dismissal for cause notified to an employee to be lawful, as a result of having carried out another working activity during the days of leave for serious family reasons. In the case at issue, following the investigation ordered by the employer, it emerged that the employee – “precisely complying with the timetable” – went to a real estate company’s office, of which the employee was manager and technical director, during the days in which the employee benefitted from the above-mentioned leave. Above all and by making cross-reference to one of its own stances, the Court considered that the investigative controls ordered by the employer had been lawful, since justified by the suspicion of the “perpetration of breaches of the law” by the employee, which cannot be traced back to the mere breach of the employment obligation and carried out outside working times. The Court then laid stress on the objective seriousness of the behaviour, since the employee had used the leave (granted “for serious and documented family reasons”) for purposes unrelated thereto and, moreover, forbidden (pursuant to the provisions under article 4 of Law No. 53/2000 “During such period the employee kept the respective job (…) and cannot carry out any type of working activity”). In this respect the Court, apart from anything else, made cross-reference to one of its stances based on which “the use of one’s leave to carry out a different working activity amounts to abuse due to diversion of the distinctive purpose of the right, fit to amount to just cause for dismissal”. In the Court’s opinion, it must be added that any such behaviour is detrimental to the employer’s good faith, which sees itself unfairly deprived of the employee’s work. Finally, the Court highlighted that it is not necessary to post up the disciplinary code beforehand upon any breach (as in the case at issue) of law provisions and, in any event, of fundamental duties of the employee, which may be recognised as such without it being necessary to foresee them specifically.