Dismissal is lawful if post-injury depression is non-existent and other work is carried out (Il Quotidiano del lavoro de Il Sole 24 Ore, 9 June 2021 – Enrico De Luca, Debhora Scarano)

In its judgment 15465 of 3 June 2021, the Employment Chambers of the Court of Cassation ruled once again on the peculiarities of dismissal for just cause imposed on an employee carrying out other work during sick leave.

In particular, a disciplinary dismissal was ordered against a civil servant who, following a personal accident and producing medical certificates relating to an alleged depressive anxiety syndrome, was granted a period of sick leave during which, however, he was filmed by a detective agency while working for his daughter’s business, thus demonstrating that he had no physical or psychological disorder.

Following the employee’s appeal against his dismissal, it was found out during the first instance proceedings that the work carried out thereby for the other business was not occasional, rather it was ongoing and characterised by an involvement that was no less demanding than that required for the performance of his duties as a white-collar employee for the State Property Agency. On appeal, it was also found out that the medical certificates concerning the existence and nature of the disorders that had affected the employee since his personal accident were not consistent with each other. Therefore, the Court of Appeal held that the employee had no depressive anxiety syndrome and that, even if it existed latently, there was no nexus with his personal accident.

The Court of First Instance and the Territorial Court thus rejected the employee’s appeal, holding that his dismissal was lawful. The employee thus brought an appeal before the Court of Cassation, arguing, firstly, that the judgment on the merits had failed to establish the ‘non-occasional’ nature of his alleged work activity and, secondly, that the applicable collective agreement had been infringed since it provided for suspension from work with no pay, for up to 10 days, where “other activities are carried out during the state of illness or injury that are incompatible with and prejudicial to recovery”.

Continue reading the full version published on Il Quotidiano del Lavoro of Il Sole 24 Ore.