Court of Cassation: unlawful dismissal when failure to have a medical examination does not constitute a precondition of serious breach of contract

With its judgment No. 4695 of 10 March 2016, the Court of Cassation declared as unlawful the dismissal for just cause of an employee who (i) was not present for the home medical visit during the period of illness in question, and (ii) failed to have a medical examination at the doctor’s surgery the following day. More specifically, the Court of Cassation based its decision on the fact that the employee had had a check-up with the Local Health Authority the day before the date set for the surgery appointment, and that the LHA had ascertained that the employee was not fit to return to work. This behaviour, according to the Court of Cassation, precludes any serious breach, which by definition must be of “significant importance”. Therefore, the actual existence of a just cause for dismissal has to be ascertained in relation to both the seriousness of the employee’s alleged actions – deducible from their objective and subjective consequences – and to the proportionality of such actions to the penalty inflicted. Consequently, the failure to turn up for the check-up must be evaluated – in the event that the employer wishes to adopt disciplinary measures in regard to the employee in question – in the light of the individual aspects of the actual case, and not “in theory”.