Work activity while on sick leave: dismissal is legitimate only if work delays healing

The Court of Cassation, with judgement No. 17514 dated 4 July 2018, deemed justified the disciplinary dismissal ordered to a bus driver of a private rental company who, during a long period of absence from work for an ongoing injury, was found to be working for a car parking facility. On the same date, on 4 July 2018, the Court of Cassation has issued another order, No. 17424, where instead it ruled as unlawful a dismissal order to a disabled employee who could not work due to a gastroenteritis, who, during a period of absence, performed a self-employed activity offering outdoor painting services. The aforementioned conclusions, apparently contradictory, in truth find their common ground in the principle according to which carrying out a different work activity during leave from work due to illness cannot automatically lead to disciplinary consequences. This because it is necessary to check if such activity is incompatible with illness condition or such to impede or delay healing. Specifically in light of the above, the Court, with judgement No. 17514, deemed that the actions performed by the employee “appeared ictu oculi incompatible with the declaration of illness or however certainly such to delay if not even compromise physical recovery”. On the other hand, with order No. 17424, the Court verified that “the carrying out of the (extra) work activity during illness was not incompatible with the illness hindering the work activity, and it did not impair the normal psycho-physical health recovery”.