The Court of Cassation, with its ruling no. 22819/2021, considered legitimate the dismissal of a worker who refused to return to the company, at the employer’s request, because the preventive suitability medical examination referred to in Article 41, paragraph 2, letter e-ter), of Legislative Decree 9 April 2008, no. 81 (Consolidated Law on health and safety at work) was not carried out.

Facts of the case

After 12 months of sick leave following a prolonged period of illness, a railway operator worker was asked to return to the company’s offices to undergo a medical examination which would have taken place within a few days.

The worker refused to comply with the employer’s request to visit the company and the employer, after having notified her unjustified absence from work, at the end of the disciplinary procedure, dismissed her for justified subjective reason.

The Court of Appeal of Rome rejected the complaint lodged by the worker against the judgement of the Court of Rome, which rejected the objection lodged by the worker against the order, under art. 1, paragraph 51, Law 92/2012, which rejected the application for a declaration of nullity or unlawfulness of the dismissal with notice.

The worker appealed to the Court of Cassation against the Court of Appeal’s decision.

Article 41, paragraph 2, letter e-ter) of the Consolidated Law on safety at work

Article 41, paragraph 2, letter e-ter of the Consolidated Law on health and safety at work requires that health monitoring includes “medical examinations before the resumption of work, following an absence for health reasons lasting more than 60 continuous days, to verify work suitability.”

The Court of Appeal found that the preventive medical examination in question constituted a check that the Law did not consider as a legal condition for resuming work.

Since the preventive medical examination referred to in Art. 41 of the Consolidated Law was not a condition for resuming work, according to the Court of Appeal, the refusal to continue work constituted an unjustified absence, to which dismissal with notice was legitimate.

The Supreme Court of Cassation’s ruling

The Court of Cassation held that the preventive medical examination referred to in Art. 41 of the Consolidated Law aims to verify the suitability for the tasks and restore to general work and not a specific task.

The Supreme Court, in previous similar cases of termination for just cause, stated “the rule should be read – according to an interpretation consistent with its literal wording and purpose – in the sense that the “resumption of work” against which the medical examination must be “prior”, is the practical assignment of the worker to the same tasks previously carried out, when they return to the company after an absence for health reasons lasting more than 60 days, since these are theonly tasks for which it is necessary to carry out a check of “suitability” i.e. ascertain whether the worker can carry them out without prejudice or risk to their psycho-physical integrity.” “The worker, if once again assigned to the same tasks assigned before the start of the absence period, may refrain from carrying out the same tasks, under Art. 1460 of the Civil Code, given that the medical examination provided for by the rule is part of the fundamental entrepreneurial obligation to prepare and implement the measures necessary to protect the worker’s safety and health” (Court of Cassation ruling no. 7566/2020). Consequently, “their omission may constitute a serious breach by the employer which, if appropriate, legitimises the exception of breach by the worker under art. 1460 of the Civil Code” ( Court of Cassation – Joint Chambers ruling 22 May 2018, no. 12568).

The Court of Cassation pointed out that the case in which the worker refuses to return to the company must be kept separate from this hypothesis.

The Court of Cassation noted that, once the reason justifying the absence ceases to exist (in this case the worker exceeded her required leave of absence), the worker cannot be allowed to refrain from going to work.

The Supreme Court emphasised that such a request is to be considered a moment distinct from the assignment of duties, since it is intended to make the relationship operative again and the employer may arrange a different placement of their employee within the company organisation, as part of their powers, even if provisionally and pending the completion of the medical examination and the related suitability check (see Court of Cassation ruling no. 7566/2020).

Based on the above, the Court of Cassation held that the worker’s refusal to return to the company was unjustified and confirmed the legitimacy of the disciplinary dismissal with notice.

Other related insights:

In a ruling dated 8 July 2021, the Court of Trento, upheld a disciplinary dismissal (for just cause) imposed on a teacher who repeatedly refused to wear a protective mask while working at school.

In this case, the teacher, employed by the Autonomous Province of Trento, refused to comply with an order issued by the head of the educational activities department, who asked her to wear a protective mask to ensure the health and safety of children, colleagues and the school community. In support of her refusal, during the disciplinary proceedings, the employee claimed that she did not want to wear the mask because she was a “conscientious objector” and that additionally, she was unable to do so for health reasons. Dismissed for just cause, she appealed to the employment tribunal of Trento, requesting reinstatement.

The Tribunal found that the allegations made by the employee did not include any medical certification capable of justifying her refusal to wear the mask. Her conduct conflicted with the guidelines for the protection of health approved by the President of the Autonomous Province of Trento by order of 25 August 2020 and, at national level, with the Protocol for the protection of health and safety at work, and the Memorandum of Understanding signed by the Ministry of Education on 6 August 2020, prescribing the obligation “for anyone entering school environments” to “adopt hygienic precautions and use a mask.”

According to the Court of Trento, the above administrative measures were based on the legislator’s will (Article 16, paragraph 1, of Decree 18/2020), which sees masks as personal protective equipment. Based on previous Court of Cassation guidelines (25932/2013 and 18265/2013), the Trento court judge recalled that “the persistent refusal by the employee to use the personal protective equipment justifies the dismissal of the defaulting employee.”

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