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Poor performance due to repeated sick leaves does not legitimize dismissal (Il Quotidiano del Lavoro de Il Sole 24 Ore, 17 December 2018 – Alberto De Luca, Petra D’Andrea)

Using a peculiar argument, the Court of Cassation, with judgment no. 31763 of 7 December 2018 ruled on the possibility to consider the inconvenience caused by continuous and repeated sick leaves as grounds for dismissal for a justified objective reason.

The case at hand revolves around the dismissal served on an employee who had been on sick leave for short although repeated periods of time (157 days) – without however exceeding the protected period set out in the applicable National Collective Bargaining Agreement – given that such circumstance had negatively affected the company. The judgment of the court of first degree – which had sustained the worker’s claim – was initially reversed by the Court of Appeal, which noted that the inconvenience caused, also in consideration of the fact that the employer was a public urban transportation provider, could very well legitimize dismissal, also making reference to a recent and peculiar approach of the Court of Cassation in this regard (Court of Cassation, judgement no. 18678/2014).

Called to express its opinion on the matter, the Court of Cassation decided, nonetheless, to adopt a different approach, quashing the judgment of the Court of Appeal and noting that the non-performance of work by an employee on sick leave (during a fixed period of time) is provided for and protected by the civil code, with a view to balancing the conflicting interests of the employer (in retaining only active workers) and the worker (in using an adequate period of time to heal without losing the job).
This peculiar type of guarantee wanes only when the statutory protected period, according to the law and the collective agreement, is exceeded, and therefore the retention of the job is no longer an obligation for the employer.

Click here to read the full version of the note to the judgement.