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03.122018

A dismissal due to elapsing of the grace period must be prompt (Il Quotidiano del Lavoro de Il Sole 24 Ore, 3 December 2018 – Alberto De Luca, Luciano Vella)

Dismissal ordered due to elapsing of the grace period must be ordered without delay. This was the ruling of the Court of Cassation with judgement no. 29402 dated 15 November 2018.
The legal proceedings originated from the legal action brought forth after a dismissal ordered for elapsing of the sick leave grace period established by the collective agreement, which was not ordered immediately after the event, but after four months.
According to the Judge of first instance, the dismissal was lawful, given the uniqueness of the type of dismissal, since it did not have a disciplinary nature. The Court of Appeals of Lecce, however, was of a different opinion, when consulted during the appeal, and it overturned the corporate provision since it accepted the objection of lateness raised by the petitioner. In fact, the local Court pointed out that the employer’s delay led the employee to legitimately believe that the employment relationship would continue, even after a period since the sick leave.
Against the appeal’s ruling, the Company then filed its case to the Court of Cassation, claiming the incorrect application of the law by the judges of the Court of Appeals.
Queried on the matter, the Court of Cassation shared the interpretation of the Court of Appeals, confirming that dismissal due to elapsing of the grace period must be adopted immediately after the event, since a delay, under the perspective of conclusive facts, could cause a legitimate belief of “stabilisation of the employment relationship” even after the grace period, thus making any dismissal unlawful.
In particular, regarding the resolution of the proceedings, the Court of Cassation made reference to ruling no. 194/2010, issued by the same local Court, which stated that the timely notification criterion would apply also in the case of the grace period, a criterion that in any case “would have to be adopted not only strictly related to a chronological consideration, but to the entire context of the circumstances needed to assess the conduct of the company with regard to its will towards the termination”.
The ruling under review is aligned to a consolidated legal viewpoint on legitimacy that declared unlawful in multiple occasions any dismissal ordered after a period of time from the elapsing of the sick leave grace period, pointing out that the passing of considerable time gives rise to the fact that the will of the employer is to dismiss (Court of Cassation Labour Division no. 25535/2018)


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