The Court of Cassation, with judgement No. 17514 dated 4 July 2018, deemed justified the disciplinary dismissal ordered to a bus driver of a private rental company who, during a long period of absence from work for an ongoing injury, was found to be working for a car parking facility. On the same date, on 4 July 2018, the Court of Cassation has issued another order, No. 17424, where instead it ruled as unlawful a dismissal order to a disabled employee who could not work due to a gastroenteritis, who, during a period of absence, performed a self-employed activity offering outdoor painting services. The aforementioned conclusions, apparently contradictory, in truth find their common ground in the principle according to which carrying out a different work activity during leave from work due to illness cannot automatically lead to disciplinary consequences. This because it is necessary to check if such activity is incompatible with illness condition or such to impede or delay healing. Specifically in light of the above, the Court, with judgement No. 17514, deemed that the actions performed by the employee “appeared ictu oculi incompatible with the declaration of illness or however certainly such to delay if not even compromise physical recovery”. On the other hand, with order No. 17424, the Court verified that “the carrying out of the (extra) work activity during illness was not incompatible with the illness hindering the work activity, and it did not impair the normal psycho-physical health recovery”.
The Court of Cassation, with judgement No. 17248 dated 2 July 2018, faced the matter of the protection of employees when in the presence of a series of fixed-term contracts. In particular, according to the Court of Cassation, the indemnity ranging from 2.5 to 12 monthly salaries from the last global remuneration as part art. 32, paragraph 5, of the Law 183/2000 (now revoked), to be paid to the employee after the conversion from an open-term contract must necessarily take into account the prejudices, in terms of remuneration and contributions, suffered in the same period ranging between the end of the contract and the judgement of restoration of the relationship. In the opinion of the Court, the indemnity in question, instead, cannot be applicable to periods of actual work during which the worker may not have suffered negative consequences either from a salary standpoint and contribution standpoint. According to the Court of Cassation, with reference to these periods the all-inclusive principle of the indemnity pursuant to art. 32 of the Law 183/2000 does not apply and the employee has the right to their calculation for seniority purposes and accrual of the related seniority thresholds. In other words, said right cannot be affected and included in the lump-sum indemnification of damage not caused by the work.