With Order No. 26697 of 21 September 2023, the Italian Court of Cassation ruled that an employer can deny the holidays requested by a worker to avoid exceeding the limit of the job retention period only in the event that there are actual and genuine obstacles.
The facts of the case
The matter originated from the dismissal of a worker for exceeding the job retention period. The worker challenged the dismissal by providing evidence that she had asked the employer, with a communication sent and received by the company before the job retention period for the position had expired, to use accrued and untaken holidays.
With the same letter, the worker also informed the employer of her intention to request, once the holiday period ended, a period of unpaid leave if she were still unable to work. The employer rejected the request to use the holidays, granting the worker a period of unpaid leave of 120 days, and also informed her that the accrued and unused holidays would be paid on dismissal if, after the period of unpaid leave, the worker was still unable to resume work.
On expiry of the period of unpaid leave authorised by the Company, given the continuation of the employee’s illness, the employer notified the worker of dismissal for exceeding the job retention period.
The employee took legal action challenging the dismissal. In the proceedings, the Court accepted the worker’s requests, ordering the company to reinstate her.
On this point the Court of Appeal confirmed the judgment given in the first instance proceedings and found that the Company had unlawfully rejected the request made by the employee before exceeding the job retention period seeking to use accrued holidays to avoid exceeding the period.
The appeal to the Italian Court of Cassation and the latter’s judgment
The Company appealed against the judgment to the Court of Cassation.
The Italian Court of Cassation – in confirming the second instance judgment – clarified that a worker who is absent due to illness has the right to request the use of accrued and unused holidays, with the aim of suspending the running of the job retention period.
According to the Court of Cassation judges, this right does not give rise to a corresponding obligation on the employer to accept the request where there are organisational reasons that would prevent it.
The Court also reiterated the need for the reasons advanced by the employer to be actual and genuine, with a view to balancing the opposing interests and to comply with the general clauses of fairness and good faith.
As the latter requirement had not been satisfied in the present case, the Italian Supreme Court therefore rejected the appeal brought by the Company.
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One of the fundamental requirements in the context of disciplinary complaints is consistency between the charge alleged against a worker and the underlying sanction imposed. This principle is aimed at ensuring a fair and just procedure in the context of employment relationships, to prevent the employer from carrying out dismissals based on circumstances over and above or different from those set out in the disciplinary letter.
The recent ruling of the Italian Court of Cassation
The Italian Court of Cassation reiterated the aforementioned principle with Order No. 26042/2023 of 7 September 2023.
The case concerned a worker who had been fired following accusations of forgery and theft of fuel, offences which had simultaneously been the subject of a criminal trial.
The worker, initially dismissed, was subsequently acquitted of these charges in the criminal proceedings, for not having committed the crime.
In the criminal sentence of acquittal, the Court of first instance and the Court of Appeal held the dismissal to be unlawful.
The company challenged the decision before the Italian Court of Cassation, arguing, first, that the requirements under criminal law for the effectiveness of a criminal judgment in civil proceedings were lacking, and, second, that there had been a failure to examine certain additional facts sufficient to irreparably damage the bond of trust with the dismissed worker.
The Court’s decision
The Court of Cassation stated that “in the current procedural system, in the absence of a definitive rule which exhaustively sets out the means of proof, the judge may legitimately use evidence not expressly referred to by law as the basis of his or her decision .” Consequently, in the Court’s opinion, “there is no doubt that the sentence of acquittal for not having committed the crime, even after abridged proceedings, can be classified as atypical evidence of the non-existence of the disciplinary charge falling within the perimeter of the parallel criminal charge, the re-evaluation of which in fact is precluded before the Court of Cassation”.
Furthermore, the Court of Cassation rejected the alleged failure to evaluate “omissions” and “breaches” outside the disciplinary complaint. This is on the basis of the principle that disciplinary complaints may not be changed, which prevents the employer from expanding their scope during the judicial proceedings.
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The Court of Appeal of Trento decided with judgment No. 8 of 6 July 2023 that an employer cannot dismiss a worker suffering from an illness that leads to a disability immediately after exceeding the protected period, but must make reasonable arrangements for the preservation of the job, in compliance with the principles of good faith and fairness. These principles also include informing the employee of the possibility of taking unpaid leave before exceeding the protected period.
The facts of the case
The ruling originates from a judgment of the Court of Rovereto (No. 54 of 2022) which held that a dismissal imposed on a worker suffering from type 2 diabetes, which led to the amputation of a finger, at the end of the maximum period of absence provided for by the National Collective Bargaining Agreement (contratto collettivo nazionale di lavoro, ‘CCNL’), was lawful. The Court held that the dismissal was lawful on the grounds that the worker’s disability had not been certified before the termination of the relationship and that there was no obligation on the employer to inform the employee before the protected period was exceeded.
The worker appealed to the Court of Appeal against the Court of Rovereto’s judgment.
The decision of the Court of Appeal
The Court of Appeal came to a different conclusion, basing its reasoning on a finding of indirect discrimination against the worker. The Court recalled at the outset the guidance from the European Court of Justice, according to which disability is ‘a limitation which results in particular from physical, mental or psychological impairments’ which may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers. The definition is, in reality, very broad and independent of the formal recognition of an invalidity ‘understood as a reduction – ascertained by the bodies responsible for this – of working capacity’. In addition, according to the Court, it is necessary to make a distinction between illness and disability, which is characterised by the ‘permanence of the illness and its long duration’.
In the specific case, the judgment referred to the fact that the company had been periodically informed by the worker of his state of illness and that it was in this context that it could have taken ‘appropriate protection initiatives’. The Court held that the fact that the applicable CCNL provided for unpaid leave only at the request of the person concerned does not exclude the employer’s duty to take an active role. The employer should in fact inform the employee of the approaching expiry of the protected period and of the possibility of requesting leave as a form of accommodation. This action would be in line with the principles of fairness and good faith of the employment relationship, even if formally the employee had not yet reached the status of legal disability.
The Court therefore declared the dismissal null and void as discriminatory, as the company did not prove that it had made adequate efforts to reasonably accommodate the employee. The company also did not prove that these measures would have caused serious organisational or financial problems, nor that they would have been disproportionately onerous. As a result, the employee was reinstated in the workplace, with compensation equal to the total remuneration between the date of dismissal and the effective date of reinstatement.
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By judgment No. 450 of 13 June 2023, the Court of Appeal of Messina established that if an employer has not trained employees on the specific risks related to the tasks for which they are employed, sick days attributable to harmful working conditions do not count towards the protected period. This applies even if the employer has taken the necessary measures to protect workers’ health under the general obligation to protect their psycho-physical wellbeing under Article 2087 of the Italian Civil Code.
The facts of the case
The facts of the case stem from a claim brought by a physiotherapist who was dismissed for exceeding the maximum sickness period. The worker challenged the dismissal, arguing that 57 days had to be deducted from the protected period because the absence was attributable to carpal tunnel syndrome which developed through lifting immobile patients (tasks to which she was assigned).
The worker’s application was upheld at the preliminary stage and subsequently rejected by the Court of Barcellona Pozzo di Gotto on the ground that, although the absences were attributable to an illness attributable to her tasks, the employer had fulfilled the obligation to safeguard health under Article 2087 of the Italian Civil Code.
The worker therefore appealed against the decision of the Court of First Instance before the Court of Appeal, which overturned the judgment.
The Court’s decision
The Court of Appeal stated that the employer’s failure to comply with the training obligation prevented the days of absence from being counted towards the protected period.
In the Court’s view, it was not sufficient that the employer had complied with the obligation to provide information on the general and specific risks linked to the workers’ individual activities, since training has a further purpose, namely compliance with obligations to provide information.
In this context, the Court attached importance to the various “training” and “information” obligations by clarifying their differences. Training is the educational process necessary to acquire the skills for the safe performance of tasks, identifying, reducing and managing risks. Information, on the other hand, provides the knowledge necessary for the management, reduction and management of risks. According to the Court, ‘the former constitutes the indispensable framework for the latter to be meaningful’.
The training must, moreover, meet specific standards of adequacy, which require that the employer ensures that workers receive training tailored to the specific risks of each worker’s tasks. In this context, compliance with the obligation to provide information does not therefore replace the obligation to provide training.
Indeed, according to the Court, in the case in question it was highly probable that the worker, if she had been adequately trained, would not have had to undergo the operation, or would at least have had a shorter or less arduous course of treatment. This in turn would have reduced the number of sick days which would have fallen within the overall limit of 180 days over the three-year period.
This resulted in the breach of Article 2087 of the Italian Civil Code, which had a causal effect to the onset of the illness in the terms and times ascertained.
In this context, an employer’s failure to comply with the obligation to provide adequate training on health risks prevents days of absence from being taken into account when counting the maximum period of sickness.
Consequently, in the Court’s opinion, in the present case, the dismissal by the employer taking into account those absences was unlawful, with the consequent reinstatement of the worker in the workplace and compensation for damages, under Article 18 of Italian Law No. 300/1970.
Other related insights:
With its recent judgment No. 17643 of 20 June 2023, the Italian Court of Cassation affirmed the principle that the limitation period for a worker’s right to receive compensation in lieu of untaken holiday leave and weekly rest starts from the termination of the employment relationship, except where the employer proves that the worker was put in a position to enjoy the accrued holiday leave.
In particular, the employer must provide proof that it has invited the worker to take the holiday leave at a time that ensures that the leave still provides the person concerned with the rest and relaxation for which it is intended. In addition, the employer must have warned the worker that, if the holiday leave is not taken, it will be lost at the end of the reference period.
In the case examined by the Italian Court of Cassation, a worker, following the termination of the employment relationship due to resignation, brought an action before the Court of Milan requesting, among other claims, an order that the employer pay her compensation in lieu of untaken holiday leave.
The Court partially accepted the worker’s request, while the Court of Appeal of Milan upheld the worker’s cross-appeal, recognising the right to receive compensation in lieu of holiday leave for a total of 248 days (instead of 124 days as ordered by the Court at first instance).
The employer appealed to the Italian Court of Cassation against the judgment of the Court of Appeal of Milan, submitting, among other things, that the worker’s rights were time-barred, given the ten-year limitation period for compensation in lieu of holiday leave that must start to run during the employment relationship.
In this regard, the Italian Court of Cassation, confirming the rulings of the first instance judges, stated that the limitation period of the worker’s right to compensation in lieu of untaken holiday leave and weekly rest ‘starts from the termination of the employment relationship, unless the employer proves that the right to holiday leave and weekly rest was lost by that worker because he or she did not enjoy it despite the invitation to use it; the invitation must be clear and given in good time to ensure that the holiday leave and rest periods provide the person concerned with the rest and relaxation for which they are intended, and must contain a notice that, in the event of non-enjoyment, such leave and rest will be lost at the end of the reference period or an authorised carry-over period’.
In conclusion, therefore, it is better not to postpone holiday leave when it is the employer who invites the worker to use it to avoid the risk of definitively losing the right, including that relating to the monetisation provided for at the end of the employment relationship.
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