In its recent order of 16 December 2022, the Court of Foggia, as part of the first phase of the so-called Fornero Procedure, held that an employee who had worked for third parties during his sickness was lawfully dismissed for just cause.

The facts of the case

In the case dealt with by the order in question, the worker was absent from work due to sickness on 9 and 10 November, and then sent in a second certificate of continuation of sickness covering 11, 12 and 13 November.

During the sickness period, the company conducted some investigations from which it emerged that the employee, on 10, 11 and 13 November, had worked in a pub run by his wife.

The company instituted disciplinary proceedings, accusing the employee of faking being sick, the fact that the sickness did not lead to incapacity for work, and, if he was in fact sick, the repeated breach of the employee’s duty not to jeopardise the time required to return to work.

In setting out his reasons, the employee stated that the sickness had been properly certified by his doctor and that, out of a mere spirit of family cooperation and on an exceptional basis, the employee agreed to help his wife, specifying that this activity was carried out outside working hours and without receiving any remuneration.

The company, holding that it could not accept the justifications provided by the employee, dismissed the employee for just cause.

The Court of Foggia’s order

Through a thorough analysis of the documents produced in court by the employer – including the investigative report that described in detail the activities carried out by the worker during the sick leave – the Court ascertained that the employee’s conduct had breached the contractual obligations of fairness and good faith in fulfilling the contractual obligation.

Moreover, from an analysis of the investigative report’s facts, it emerged that the worker had used – in the evening, in November and, therefore, with cold temperatures – an electric scooter to reach the pub, then served at the tables, took orders, and stayed in the pub until 11.00 p.m.

This was conduct that – in the Court’s assessment – demonstrated the worker’s lack of attention to his own health and related duties of care and of not delaying recovery, with the consequent compromise of the employer’s rightful interest in the effective performance of the service due.

The Court, therefore, ascertaining the breach by the employee of his duty to observe all the precautions to not prejudice the recovery of his working energies temporarily undermined by the sickness, rejected the appeal brought by the employee, confirming the complete lawfulness of the worker’s dismissal for just cause.

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