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.
Facts of the case
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 Supreme Court of Cassation’s ruling
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:
- Exceeding the protected period: the Company does not have to inform the employee
- DID YOU KNOW THAT… the dismissal notified after a considerable lapse of time following the protected period is not unlawful?
- Protected period: excluding quarantine and later voluntary homestay period due to Covid-19 infection
