Illegal dismissal of the employee who abstained from work during midweek holidays

The Court of Cassation, with judgement 18887 of 15 July 2019, declared illegitimate the dismissal of the worker who refused to work on a day during the week when there was a holiday celebrating a civil event.

Facts of the case

In this specific case, a company, faced with the refusal of one of its employees to work on 1 May, carried out disciplinary proceedings against them, which ended with an injunction to dismiss for just cause.

The worker thus appealed to the judicial authority for it, among other things, to declare the dismissal unlawful and to order the company, his former employer, to reinstate his job and to pay him compensation commensurate with his total remuneration from the moment of withdrawal to the day of actual return.

The Court of Appeals with territorial jurisdiction, overturning the judgement of first instance, converted the employer’s withdrawal into “dismissal for justified subjective reason”, sentencing the company to pay compensation in lieu of notice.

The courts based their decision, inter alia, specifying that: (a) under the provisions of the industry national collective bargaining agreement it was possible for employees to be required to work on public holidays, obviously within the limits established, the exceeding of which, in the present case, was not documented; (b) the classification of insubordination noted in the court of first instance relative to the conduct of the worker was correct but, since it was not carried out in a violent manner and there was no serious harm to the company, the dismissal should have been adopted for justified subjective reasons and with notice.

The employee appealed to the Court of Cassation against the decision of the Court of Appeals.

The decision of the Court of Cassation

The Court of Cassation, in upholding the employee’s appeal, observed that the courts had erred in ordering the obligation to work on 1 May on the basis of a mere interpretation of the industry national collective bargaining agreement, which contains a general reference to holiday work. This is because Law 260/1949 takes precedence.

According to the Court, this law is complete and self-sufficient in recognising the worker’s right to refrain from working on certain festivities celebrating religious and civil events, with the exclusion, therefore, of any analogical additions of mixing it with other disciplines.

Also according to the Court, only persons employed by public and private health institutions are obliged to provide services during events, such as 25 May and 1 May, provided that the needs for service permit rest time. Otherwise, the employer may not unilaterally waive the use of the rest period, even if it depends on production requirements.

Moreover, the worker’s right to abstain from work during midweek holidays celebrating civil events is a subjective right and is replete with a general nature.

This right cannot, therefore, be undermined by the employer, to be able to renounce to the rest period during the midweek holidays only by virtue of an individual agreement or an agreement stipulated with the trade unions to which the worker has given an explicit mandate.

On the basis of these principles, the Court of Cassation concluded that the dismissal of the worker, with all the legal consequences, was unlawful.