In ruling no. 8628 of 16 March 2022, The Court of Cassation ruled that the validity of dismissal for exceeding the protected period “‘by summation” requires specification of the days of absence due to illness, to which unjustified absences cannot be counted.
An employee of the Udine Prefecture had challenged her dismissal for exceeding the protected period, arguing that the dismissal notice did not correctly specify the days counted and added together.
The Court of First Instance upheld the employee’s appeal, declared the dismissal unlawful and ordered the Ministry to reinstate her.
The Ministry then appealed against the ruling before the Court of Appeal of Trieste, which confirmed the first instance ruling, upholding the principle that if the employer specifies the employee’s days of absence in the termination notice, it cannot subsequently change or add them.
In this case, the period specified by the Ministry of Health for absence due to illness was 472 days (taking into account the “protected period by summation”) and was less than the protected period under collective bargaining and set for 484 days. This is because the period specified by the Ministry included 12 days of employee unjustified absence and, therefore, was not included in the protected period calculation.
In addition, the Court of Appeal found that the Ministry’s evidence that the days of unjustified absence were attributable to the employee’s illness was worthless. According to the Court of Appeal, what mattered was the “incontrovertibility” of the periods specified in the dismissal notice, based on the principle that the reasons for dismissal cannot be changed.
The unsuccessful Ministry thus appealed the Court of Appeal’s ruling in cassation.
The Court of Cassation confirmed the decisions of the courts. The Court of Cassation upheld the local court’s finding that the 12 days of unjustified absence were not taken into account for a protected period exceeding purposes, as they related to a different case.
The Court of Cassation observed that, contrary to the Ministry’s claim, the Court of Appeal did not intend to affirm that in cases where the protected period was exceeded the employer must specify the individual days of illness considered for the calculation of the protected period in the letter of dismissal. This precluded a subsequent specification by the employer.
The Court of Cassation stated that the employer cannot ex post add to or change the days taken into account to exceed the protected period allowed by collective bargaining, if it specifies the absences taken into consideration.
According to the Court, for cases of dismissal for exceeding the protected period, “the employer does not have to specify the individual days of absence since more comprehensive information is sufficient. This is based on the amended Article 2 of Law no. 604/1966, which requires the simultaneous communication of the reasons, without prejudice to the burden of alleging and proving in court the facts constituting the power exercised. However, this applies to the protected “single period” (i.e. a single uninterrupted period of illness), where the days of absence are easily calculable even by the worker. In cases of protected period “by summation” (i.e.multiple and fragmented absences), a specification of the calculated absences is required to enable the worker to defend themselves.” In the Court of Cassation’s opinion, even when there was a dismissal for exceeding the protected period “by summation” the rule of unchangeability of the reasons underlying the termination applies. This rule constitutes a guarantee for the worker who, otherwise, would not have the opportunity to challenge the dismissal.
Other related insights:
The Court of Asti, with the order of 5 January 2022, ruled that the quarantine period (as per art. 26, paragraph 1, Decree Law 18/2020 applicable ratione temporis) or voluntary homestay is not valid for calculating the protection period, not only vis-a-vis subjects who have had close contact with confirmed cases, but also regarding subjects who end up positive for Covid-19. This is because it is impossible by law to perform the job regardless of the presence of symptoms or not linked to the pathology.
In the case in question, the worker, following contact with a colleague turned out to be positive to Covid-19, she was first put in quarantine and later, following a positive swab result, in voluntary homestay. The employer dismissed her for exceeding the protected period according to the sector national collective bargaining agreement.
The worker challenged the dismissal in court, claiming that:
In contrast with what the employee sustained, the employer sustained that the protection included in art. 26, paragraph 1, of Degree Law no. 18/2020 only refers to the quarantine periods with active monitoring or voluntary homestay with active monitoring ordered by the authority and not also the case in which the worker had caught the Covid-19 infection.
According to the Judge assigned to the case, during the protected period the days of absence due to quarantine or voluntary homestay provided by the law to fight the spread of the virus should have not have been calculated.
The Judge – in citing art. 26, paragraph 1, of Decree Law no. 18/2020 as amended by subsequent legislative interventions that extended the timeframe – underlined how such provision was introduced with the aim of protecting workers forced to be absent from work because subject to quarantine or voluntary homestay measures equating such absence to illness and excluding it from the calculation for the protected period.
In light of the above, according to the Court, in the case in hand, the days of absence required for quarantine and those ordered for homestay due to testing such worker for the virus should not have been calculated for the purpose of exceeding the protected period.
The sentence reads that “the ratio of the law is not to have the worker suffer the consequences for absences from work due to prevention and containment measures provided by law and undertaken with measure of the authorities to limit the spread of the Covid-19 virus, in all cases of possible or clear infection from the virus and regardless of the condition of the illness that – as already known – may exist with or without the infection (asymptomatic positive cases)” It later states “even in the case of infection with illness, what really separates Covid-19 from other illnesses is the impossibility, authoritatively imposed, for the worker to perform their job and for the employer to receive it in legally and administratively expected times, times that – once again – are regardless of the development of the illness but depend on the mere positiveness or negativeness of the virus”.
Based on these considerations the Court granted the worker’s appeal, cancelling the dismissal and (i) reinstatement in her job as well as (ii) payment of damages equal to the last overall remuneration from the day of dismissal until that of effective reinstatement, and in any case not greater than 12 months salary of overall remuneration, as well as interest and revaluation as per law as well as payment of welfare and social security contributions.
Other related insights:
The Court of Cassation, with order No. 18960 of 11 September 2020, has stated that in no way may the dismissal following the protected period be deemed belated when the employer, prior to notifying same, waits for an adequate period of time in order to carry out a “prognosis of endurableness” of the overall absence compared to the undertaking’s interest remaining. According to the Court of Cassation, the requirement of the timeliness of the withdrawal following the protected period cannot turn into a fixed and predetermined chronological fact, since it must undergo an adequacy assessment to be made in practice with respect to the entire de facto context. Therefore, even a considerable lapse of time between actually exceeding the protected period and the moment in which the employer decides to notify the dismissal must be deemed to be in line with the legal system’s provisions. The above provided that the employer uses this interim interval to carry out a check as to whether the sick leave is compatible with the service requested to the employee. Instead, still in the opinion of the Court of Cassation, the worker concerned must prove that the time interval between actually exceeding the protected period and the service of the withdrawal has exceeded the limits of adequacy and reasonableness such as to lead to understand that there is an implied intention on the employer’s side to waive the respective own right to withdraw from the employment contract in force.