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With the order No 7306 of 13 March 2023, the Italian Court of Cassation ruled that in the event that the worker, during the use of paid leave under Article 33, paragraph 3 of Italian Law 604/92, carries out the assistance activity in times and ways such as to mainly satisfy the needs of seriously disabled family members, even without completely waiving their personal and family needs, there will be no abuse of right or breach of the duties of fairness and good faith.
The facts of the case and the first and second instances proceedings
The dispute originates from the dismissal for just cause notified to an employee for the alleged abuse of the use of leaves relating to the assistance of his parents in a condition of serious disability.
As a result of the investigations carried out by the employer through investigators, it emerged that on the days of leave the employee had dedicated himself, in addition to assisting his parents, to reading books in the public gardens in periods of time corresponding to his working hours, a circumstance detected on two occasions and always for a period of about two hours.
In the context of the first and second instance proceedings relating to the employee’s appeal against the dismissal, the Court of Appeal, confirming the first instance ruling, declared the illegitimacy of the dismissal, the employee having shown that he had dedicated himself, through numerous activities and chores, to parental assistance during the days of leave used.
In fact, the Italian Territorial Court noted that the intervals of time not dedicated to parental care were not to be considered diriment, given that the worker was guaranteed assistance to his parents in that period, albeit with the flexibility necessary for him to take care of his personal needs and his mental and physical integrity.
The company appealed before the Italian Court of Cassation, arguing that absence from work to use leaves should be in a ‘direct connection’ with assistance to disabled people and that the assessment on the proportionality between time-assistance and time-leisure should be carried out with regard to working hours and not the entire 24-hour day.
The decision taken by the Italian Supreme Court
The Italian Court of Cassation, in rejecting the appeal brought by the company, carried out a thorough examination of the principles governing the use of the leaves under Article 33, paragraph 3, of Italian Law 604/92.
Recalling the ruling of the Italian Constitutional Court 213/2016, the Court recalled that ‘the rationale of the provision in question is to ensure as a priority the continuity in the care and assistance of the disabled that take place in the family environment’, in compliance with the principles of interpersonal and intergenerational solidarity and with the constitutional values referred to in Articles 2 and 32 of the Italian Constitution.
In this context – the Judges of the Court of Cassation highlighted – the link that the regulatory text establishes is not strictly temporal, i.e. between the use of the leave and the provision of assistance in precise coincidence with the working hours, but rather functional, between the enjoyment of the leave and the needs, burdens, duties that characterize the assistance activity of seriously disabled people.
By applying the principles set out above and excluding the use of leaves as a ‘merely compensatory’ function for the efforts made by the worker to assist relatives with disabilities outside working hours, for the Cassation it is up to the trial judge to determine from time to time whether it can be considered fulfilled the function of the pre-eminent need to protect people with disabilities, even when a residual compromise with other personal duties is safeguarded.
Therefore, the Court concludes, there is no abuse of right when, as in the present case, the worker on leave has carried out the assistance activity in times and ways such as to primarily satisfy the needs of disabled family members, without waiving the personal needs and this regardless of the timing of this assistance.
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