Sending the medical certificate by fax is a valid method of notification of illness by the employee, as it is expressly provided for in the company’s rules.
The Supreme Court, in its order no. 25661 of 25 September 2024, held that the dismissal of an employee who communicated his illness via fax, while on holiday abroad, was unlawful. The Court stated that this method of notification was in accordance with the company’s rules. Furthermore, the Supreme Court emphasized that the notification of illness could also take place in a form other than by registered letter, if provided for by the company’s rules.
Employment relationship – Notification of illness – Method of transmission – Medical certificate – Fax as valid instrument – Company rules – Presumption of receipt – Documentation of transmission – Employee’s conduct – Illness abroad – Dismissal – Valid transmission
Notification of illness to the employer may be validly effected by fax if that method is expressly provided for in the company’s rules. In such circumstances, the fax is deemed to have been correctly received by the employer if the employee can prove, by means of transmission reports, that the notification was successful, even if there is no record on the company’s servers. The employee’s conduct in notifying the employer of his illness from abroad, although potentially negligent, will not constitute a valid reason for dismissal unless it can be shown that the employee was aware of the failure of the transmission.
The facts of the case
The case examined by the Supreme Court concerns a dismissal for just cause due to “unjustified absence of more than four days” against an employee who became ill while he was on vacation in Romania. The employee argued that his absence was justified, stating that he had contracted the illness during his vacation and, therefore, had sent the medical certificate by fax, in accordance with the company’s rules.
Following the dismissal, the employee challenged the measure before the Court of First Instance of Treviso, (Italy) requesting the repeal of the dismissal due to the non-existence of the alleged infringement.
The main argument in the company’s defense consisted in the alleged inadequacy of the illness notification. Specifically, the company claimed that the employee did not respect the procedures set out in the company’s rules, which, according to the company, required both a more “formal” notification, typically through registered mail, and a telephone call notice. The employee, however, disagreed, stating that sending a fax was an acceptable method according to the rules, and that the certificate had been transmitted correctly, as evidenced by the transmission report.
The various degrees of judgement
During the preliminary hearing, the Court of First Instance of Treviso upheld the employee’s appeal, declaring the dismissal null and void and ordering his reinstatement. Additionally, it ordered the company to pay an equal compensation «to the employee for the period from the date of dismissal until his actual reinstatement, based on his gross salary».
Against the Court of First Instance’s decision, the Company brought the case before the Court of Appeal of Venice. The latter partially upheld the appeal, confirming the unlawfulness of the dismissal and the employee’s reinstatement, re-determining the compensation to twelve months’ salary.
The Court stated that Article 40 of the applicable national collective bargaining agreement provides for unjustified absence of four days or more as grounds for disciplinary dismissal, including in the definition of unjustified absence also late communication and late sending of the medical certificate.
Moreover, according to the company’s rules, it was the employee’s precise duty to notify the employer on the day of the event, in addition to sending the medical certificate.
Furthermore, it turned out that the employee had not documented any impediment justifying the failure to notify; in fact, the only text message sent was dated days after the beginning of the disputed absence.
A final significant aspect examined by the Court of Appeal concerned the employee’s failure to allege a possible impediment to telephone communication. On this point, the Court of Appeal noted that «the employee has not demonstrated an impediment of such gravity as to radically exclude the possibility of a prior serious attempt to contact the company director». Finally, it stated that «the employee has behaved in a formally obsequious manner in relation to contractual obligations, but he has only minimally fulfilled them».
Consequently, the Court found that the employee had failed to comply with the obligation to notify the employer by telephone, in breach of the company’s rules and of the duty of care required in the context of a subordinate employment relationship.
The company appealed to the Supreme Court on five grounds against the decision of the Court of Appeal.
The first ground of appeal was based on the alleged nullity of the judgment on the ground that the Court of Appeal had made contradictory and irreconcilable statements. In particular, the judges of the appeal had «first affirmed that the employee’s conduct was neither linear nor based on the essential rules of diligence required by the employment relationship» and then « excluded the existence of a just cause that allowed the dismissal».
The Court of Cassation rejected the aforementioned argument, stating that the contradiction was only apparent, as the Court of Appeal had considered sufficient both the method of transmission by fax, as provided for in the company’s rules, and the proof of its receipt in the transmission report submitted by the employee at the trial, since a similar fax had been sent to the INPS and duly received by it.
In its second plea, the company challenged the Supreme Court for finding that fax transmission was “appropriate”.
The Court of Cassation held that the plea was not grounded because «fax is a method provided for by the company’s rules» and «the law does not exclude equivalent methods according to the forms of use that may be provided for by the company’s rules».
In its third ground of appeal, the company argued that the Court of First Instance of Treviso had contradicted itself by «first stating that it was only during the trial that the employer was able to verify the content of the fax, i.e. the medical certificate, and then stating that there was no evidence of falsification or alteration of the message».
Also in this case, the Court of Cassation rejected the company’s arguments, stating that the fax was a valid means of communication, as provided for in the company’s rules, so that «the knowledge of the addressee is irrelevant for the purposes of the fact that is the subject of the disciplinary complaint».
By its fourth ground of appeal, the company challenged the local Court’s presumption of the correct receipt of the fax based on the only available information concerning the actual sending of the fax.
The Court of Cassation stated that «the employee’s obligation ends with the confirmation of the successful transmission of the fax», thus confirming that «the employee’s conduct is therefore exempt from liability».
Continue reading the full version available on Norme e Tributi Plus Lavoro del Il Sole 24 Ore.
