With its judgement no. 20761/18, the Court of Cassation, Labour Division, returned to rule on dismissal for exceeding the sickness period, confirming its opinion on the potential formal faults that may affect its validity. The ruling originated from the appeal brought by a worker against his dismissal for exceeding the sickness period, whose lawfulness had already been upheld by the courts of the previous two degrees. One of reasons at the basis of the appeal is that the worker had complained about the false application of the applicable rules, as the employer had failed to notify the employee of the imminent expiry of the sickness period. According to the employee, such failure resulted in the impossibility for him to exercise the right – guaranteed by the national collective bargaining agreement – to request a period of unpaid leave on expiry of such term. The Court of Cassation confirmed the lawfulness of the dismissal, clarifying and reiterating that there is no obligation from the employer’s part to notify the employee of the imminent expiry of the maximum sickness absence days, and that such a burden would not exist extensively, not even on the basis of the principles of correctness and good faith. In fact, the Court noted how such notification “would be used in truth to allow the employee to implement certain actions such as request for paid vacation or leave, essentially by-passing the verification of its unsuitability to carry out his obligations”, the latter being sufficient to exclude such information obligation. The Court of Cassation therefore took this opportunity to reiterate its orientation also in relation to other profiles pertaining to this type of dismissal. In fact, on one hand, the Court of Cassation remarked that Sundays and holidays, not covered by a medical certificate, although included between separate sickness periods, should be included in the calculation of the sickness period, unless proof is given of the actual interruption of the sickness in those days. On the other hand, the Court of Cassation noted that the obligation to communicate the reasons at the time of the dismissal for exceeding the sickness period does not require the indication of each separate leave, as it is sufficient – as happened in the case at hand – to indicate the full duration of the leaves. A dismissal for exceeding the sickness period is not equivalent to a dismissal for cause and, therefore, it is improper to speak of a confutation of leaves in this case. In the opinion of the Court of Cassation, the employer can indicate the total number of absence days occurred over a given period of time, without prejudice to the obligation for the employer, in case of legal proceedings, to submit and substantiate the elements that brought to the employer’s decision.

The Court of Cassation with ruling No. 15523/2018 had the opportunity to clarify, once again, a few important cases concerning a dismissal ordered upon conclusion of disciplinary proceedings pursuant to art. 7 of the Law No. 300/1970. The judges of the Court of Cassation, in fact, returned to explore the heavy and controversial matter of linking the disputed fact with the letter starting the disciplinary proceeding to a different disciplinary assumption. On the matter, the Court reminded how said possibility is not excluded since it would exclusively be related to a different take on the same fact subject matter of the dispute, relating to which the employee had the opportunity to exercise his right of defence. On the contrary, it was also restated how the employer does not have the possibility to bring forth new and/or additional factual circumstances respect to those subject matter of the dispute, since this conduct would irremediably damage the right of the defence of the worker who would not have, in this manner, the possibility to present his own reasons related to said circumstances. In this manner, the Court of Cassation confirms its opinion according to which it is necessary full matching between the disputed facts and the ones at the root of the dismissal tied to the disciplinary proceedings.

The Court of Cassation, with ruling No. 16571/2018 has once again returned  – confirming an already consolidated trend in legal literature and case law concerning lawfulness – on the topic of reclassification of the apprenticeship relationship in an employment relation under an open term contract, if the employer’s obligations to provide training was breached. In particular, the Court has pointed out that in the matter filed for review, the necessary professional training was lacking, that is the professional training provided to the employee in-training required to allow him to become qualified. On the matter, the Court states once again that in an apprenticeship contract the fundamental matter is specifically represented by the obligation of the employer to provide effective professional training with the goal of providing to the trainee a professional qualification. And since this breach, being of no little importance, leads in the opinion of the Court of Cassation to the transformation right from its inception of the apprenticeship contract into an open term contract, with consequent payment to the employee of all the contributions and salary differences. This means that the priority role that the training undertakes respect to the work activity excludes that this specific contractual form be deemed suitable a relationship having as its objective the performance of elementary or routine tasks, not integrated by an effective training both theoretical and in practice, under penalty of reclassifying the relationship into an open term contract since the very beginning.