Redundancy fund for the whole workforce takes precedence over sick pay but does not suspend the protected period (Norme & Tributi Plus Diritto – Il Sole 24 Ore, 27 July 2021 – Alberto De Luca, Claudia Cerbone)

Although the redundancy fund for the workforce (or a department) takes precedence over sick pay, the protected period continues to apply. This means that the dismissal of an employee who exceeded the protected period in such circumstances is legitimate.

In a 17 July 2021 order, the Court of Foggia ruled on the validity of a dismissal that exceeded the protected period. The Court stated that even if the wage supplement replaced the relevant daily allowance during illness, the employer could not arbitrarily change the reason of the employee’s absence, so the protected period continued to run during a certified illness unless the employee requested a change in the attribution of their absence from work.

In this case, an employee was dismissed for taking 430 days of sick leave instead of the 420 days provided for by the collective agreement applied to the employment relationship. The employee took legal action requesting the dismissal be declared unlawful, arguing that he had been placed, together with the other company employees, under the ordinary redundancy fund for Covid-19, which had legally replaced the sick leave he was taking. To support his claim, the employee refers to Art. 3, paragraph 7, of Legislative Decree no. 148/2015, and INPS Circular no. 197/2015, according to which “the wage subsidy replaces the daily sickness allowance in case of illness, and any contractually provided supplement.” The Court rejected the appeal referring to the arguments expressed by the Court of Pesaro in ruling no. 16/2021 and pointed out that with the above art. 3, paragraph 7, of Legislative Decree no. 148/2015, the legislator intended only to provide for a different attribution of the financial benefit received by the employee when using a period of wage subsidy, which remains, however, the responsibility of INPS (as in the case of illness), without intervening on the absence reason which pertains to the private relationship between employee and employer. Such a different attribution has nothing to do with the protected period and the work suspension. According to the Court, the employer cannot arbitrarily change the employee’s absence reason when they are on sick leave because that would mean giving the employer extra ordinem power, which would be contrary to a constitutionally guaranteed right, such as the right to health.

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