The Court of Cassation, with judgment No. 1394 filed on 22 January 2020, once again drew attention to the use and potential abuse of leave to assist disabled family members pursuant to Article 33, paragraph 3, of Law No. 104 of 1992. In particular, the Supreme Court, in affirming the principle that such leave is granted “in order to assist the disabled person and in a direct causal relationship with that assistance“, has ruled out that they may be used “merely as compensation for the energy used by the employee for that assistance“.
The Court of Appeal of L’Aquila upheld the decision of the Court of Pescara where the latter had considered it lawful to dismiss a worker for just cause for abusing his leave under Article 33 paragraph 3 of Law No. 104/1992.
The District Court found evidence of four instances of abuse of leave by the employee, in light of a report from an investigating agency (commissioned by the employer). In particular, it had been demonstrated that out of four days of leave, the employee had gone to the home of their disabled father for only 15 minutes on only one of the four days.
Against the decision of the Court of Appeal, the worker appealed to the Court of Cassation on the sole ground of appeal, alleging infringement and misapplication of Article 33 paragraph 3 of Law No. 104 of 1992. Specifically, the worker pointed out that the rule referred to does not impose a necessary time connection between the period of the leave and the period of direct assistance to the disabled family member.
The decision of the Court of Cassation
The Court of Cassation, in rejecting the appeal and confirming the lawfulness of the dismissal for just cause, recalled a well-established trend in the case law according to which “on the basis of the rationale of Law No. 104 of 1992, Article 33, paragraph 3, which attributes to the employee (…) who assists a disabled person in a serious situation (…) the right to three days’ paid monthly leave, covered by imputed contributions, it is necessary that the absence from work is directly related to the need for which the right is recognised, i.e. assistance to the disabled person“. (See Court of Cassation No. 1529/2019; Court of Cassation No. 8310/2019; Court of Cassation No. 17968/2016; Court of Cassation No. 9217/2016; Court of Cassation No. 8784/2015)
The Supreme Court emphasises that the concept of assistance – even if it is to be understood in a broad sense (since it may also consist in carrying out tasks of an administrative, practical or any nature) – cannot in any event disregard the existence of a direct causal relationship with the interest of the assisted family member (See Judgement of the Court of Cassation No. 23891/2018).
Therefore, the Supreme Court continues, “an employee who does not make use of the leave provided for by the aforementioned Article 33, in line with the function of the same Article, commits an abuse of the right in that it deprives the employer of the job performance in violation of the trust placed in the employee and constitutes, with respect to the social security fund providing the salary compensation, an undue receipt of the allowance and a misuse of the welfare intervention” (see Court of Cassation No. 17968/2016).
The Court of Cassation, in the judgment in question, also confirms its case law regarding the lawfulness for the employer to use investigative agencies to monitor its employees. This, especially during periods of suspension of the employment relationship, when becoming aware of the worker’s behaviour, which, although unrelated to the performance of the work activity, is relevant from the point of view of the correct fulfilment of the obligations deriving from the employment relationship (See Court of Cassation No. 18411/2019).
In view of the above, no function other than that of assistance to the family member with a disability can be attributed to the leave to assist this family member or that is in any case in direct causal relation to it.
It is therefore to be excluded that the leave pursuant to Article 33, paragraph 3, Law 104/1992 may have a purely compensatory or restorative function of the energy used by the worker for the assistance provided.
Therefore, according to the content of the judgment in question, where an employee uses the leave in question for purposes other than those referred to above, they will be committing an abuse of rights which is also relevant from a disciplinary point of view and which will make it lawful for the employer to dismiss them for just cause.
The case law is united in believing that employers have the right to hire a private investigator to make sure that the leaves referred to in Law no. 104/92 are not improperly used by the employees. In fact, these leaves cannot be used to meet personal needs (such as dance nights or vacations), since this type of conduct is an “abuse of rights” that infringes the principles of fairness and good faith underlying a normal employment relationship.