ABSENCE FOR ILLNESS: THE LAWFUL NATURE OF THE EMPLOYEE’S DISMISSAL IN CASE OF CONCURRENT ENGAGEMENT IN OUTSIDE WORK ACTIVITIES

 

Italian Supreme Court, Labour Section, judgment no. 2516 of 26 January 2024 

 

In the matter of dismissal for subjective just reason and for just cause, the Italian Supreme Court – Labour Section - clearly stated with judgment no. 2516 of 26 January 2024, the lawful nature of the dismissal for just cause pursuant to Article 2119 of the Italian Civil Code. 

 

As firmly underlined within the context of the ruling under consideration, the dismissal for just cause imposed by the employer during the protected period is, indeed, lawful and effective in nature provided that is based on an ascertained violation of the duties pertaining to fairness and good faith, as well as specific contractual obligations of diligence and loyalty, resulting from the employee's engagement in outside work activities during the period of absence for illness.

 

As is widely known, the employer’s state of illness entails a period of suspension of the employment relationship alongside a period - commonly referred to as protected period or as job-protected leave, determined in its duration by collective bargaining - in which the termination of the employment relationship is prevented.

 

Specifically, in compliance with the provisions of Article 2110 of the Italian Civil Code governing the treatment due to the employee in instances of illness, termination of the employment during the protected period is proscribed, notwithstanding the principle set forth in Article 2118 of the Italian Civil Code.

 

Accordingly, “any of the contracting parties shall terminate employment contracts of indefinite duration – by means of resignation on the part of the employee or of dismissal on the part of employer - by giving notice to the other party”.

 

Therefore, by virtue of the right to job preservation enshrined in Article 2110, any dismissal imposed during the protected period is likewise ineffective.

 

Such ineffectiveness ceases only once the maximum period of job-protected leave has elapsed or at the end of the illness itself.

 

However, in accordance with the opinion established in legal academic discourse and in jurisprudence as well, during the course of illness the employer is still entitled to exercise the right of termination for just cause.

 

In this regard, a lawful termination of the contractual relationship may occur as long as is grounded on a substantial reason whose seriousness prevents the continuation, even on a temporary basis, of the employment relationship.

 

In the instant matter, the employee filed a claim against the dismissal for disciplinary reasons imposed by the employer as it was found out that the worker has been engaging in work activities at his spouse's commercial establishment during the period of absence for illness.

 

Taking into account the seriousness of the employee’s conduct in this specific instance, the aforementioned claim was rejected in the first two levels of judgement as the termination of the employment contract was deemed lawful.

 

In fact, it was confirmed that the employee's behavior was indeed contrary to the general principles of fairness and good faith and to the specific contractual obligations of diligence and loyalty set forth in Articles 1175 and 1375 of the Italian Civil Code, which constitute inherent and essential attributes of the employment relationship.

 

According to the Supreme Court, the judgement of the Court of Appeal was well founded.

 

Hence, in endorsing the ruling of the Court of Appeal, the Supreme Court recalled its well-established jurisprudence wherein this sort of conduct may constitute in abstract terms a just cause for the employee’s dismissal.

 

This is applicable whether the work activities performed for third parties reveal the non-existence of the illness, as evidenced by a well-reasoned factual assessment that is not subject to scrutiny in terms of legitimacy.

 

Such assessment is made by the judge of first level in light of circumstantial evidence that are substantial, precise, and concordant enough to lead to the conclusion that the work activity performed is incongruent with the stated health condition.

 

Furthermore, the Supreme Court argued that a just cause for termination might also occur if the same work activity is capable of potentially delay the recovery from the illness or to postpone the return to service.

 

In this regard, the aforementioned judicial assessment is made ex ante in order to determine the impact of the employee's working performance for third parties on a prompt restoration of work continuity and the timely resumption of those work activities to which the plaintiff is contractually obligated.

 

Following this line of reasoning, the Supreme Court fully confirmed the rulings of the first and second level judges and, accordingly, rejected the worker's claim, thereby affirming the legitimacy of the termination imposed by the employer.

 

In conclusion, in the present ruling, the Italian Supreme Court did not deviate from the prevailing jurisprudential position on the matter and, accordingly, deemed ineffectual the questions and exceptions raised by the plaintiff concerning the substantial assessment performed in the initial two levels of judicial scrutiny.

 

Specifically, the dismissal issued for disciplinary reasons was recognized lawful in nature for two order of considerations.

 

On one hand, it was considered grounded on the violation of the general principles of fairness and good faith, as well as on the specific obligations arising from the employment relationship.

 

On the other hand, it was deemed proportionate to the seriousness of the employee's conduct involving the performance of work activities for two days at his spouse's commercial business during a one-week period of absence for illness. 

 

Finally, it was established that the employee’s conduct was of a sufficient degree of seriousness to legitimize the disciplinary dismissal, as it was potentially capable of delaying the employee’s return to service.

 

Author: Dott.ssa Francesca Rosa