In ruling no. 19321, published on 15 June 2022, the Court of Cassation considered the dismissal for justified subjective reason for an employee who worked during leave for “serious family reasons” legitimate.
In the case covered by the Court of Cassation’s ruling no. 19321/2022, on 15 May 2017, a worker requested to take leave from 1 June 2017 to 30 September 2017. In response to the company’s invitation to specify the reasons for the request, he attached his wife’s medical certificate of pregnancy, which specified concerns related to miscarriage and prescribed 30 days of home care and rest.
The company, in a note dated 1 June 2017, granted the request, qualifying it as a leave of absence for “serious family reasons” under Art. 157 (formerly Art. 151) of the relevant national collective agreement and Art. 4, paragraph 2, of Law no. 53 of 2000.
During the period of leave, the company conducted some investigations, during which it emerged that the employee carried out cleaning for the company he and his wife owned.
On 1 August 2017, the company initiated disciplinary proceedings, which ended with the dismissal for just cause announced to the employee on 25 August 2017.
The Court of Appeal held that the justified subjective reason for dismissal existed because the worker violated the express prohibition, under Art. 4, paragraph 2, Law no. 53 of 2000 and Art. 157 of the collective agreement, to work during the period of leave for serious family reasons.
The employee challenged the measure in an appeal to the Court of Cassation, claiming that the leave requested (i) was for “personal reasons” and not “serious family reasons.” Therefore, the above legal provisions and consequent prohibitions did not apply (ii) it had not entailed any financial benefits for the worker, since the work had been performed at his own and his wife’s company; (iii) it had not caused any damage to the company, which was under a system of “defensive solidarity” contracts and, had not needed to replace the employee.
Continue reading the full version published in Modulo24 Contenzioso Lavoro (Form24 Labour Litigation of Il Sole 24 ore.
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