In its recent judgment No 5288 of 20 February 2023, the Italian Court of Cassation ruled that, with reference to the national collective bargaining agreement for employees in the tertiary sector (hereinafter the ‘CCNL’), the job retention period of 180 days, to be calculated in a calendar year starting from the first episode of illness, must be considered to refer to both the protected period relating to a single long-term sick leave and the protected period relating to several days of sick leave (i.e. by aggregation, ‘sommatoria’).
The facts of the case and the proceedings
The Court of Appeal of Catanzaro upheld the appeal of an employee dismissed for exceeding the protected period and, partially reversing the first instance judgment, held the dismissal to be unlawful. The Court of Appeal ordered the employer company to reinstate the employee and to pay compensation for damages under Article 18 of the Workers’ Charter.
The regional Court reached its decision stating that ‘based on the provisions of Articles 175 and 177 of the tertiary CCNL read in conjunction […] if a period of sickness is followed in the same year by an interruption, a new protected period of 180 days starts to run’. The Court of Appeal, therefore, having ascertained that the employee had not had 180 consecutive days of sick leave in the course of the calendar year, held that there had been no exceedance of the protected period which had been the basis of the dismissal by the employer.
The Company filed an appeal before the Italian Court of cassation against the Court of Appeal’s judgment. The two grounds of appeal related to the breach and false application of Article 175 of the Italian CCNL, arguing that this provision contemplated an ‘aggregated’ protected period – which, in the present case, was to be considered exceeded by the employee – and not a ‘single’ protected period as ruled by the regional Court.
The Italian Court of Cassation, in order No 23155 of 2020, rejected the appeal brought by the Company, stating that ‘if the injury is followed by a period of absence due to sickness, as was unquestionably the case in this instance, even if there is no interruption, a separate period of 180 days begins to run from the time of the onset of the sickness, and only at the expiry of this period can there be dismissal for exceeding the protection period’.
The Company, alleging a factual error in the ruling made by the Italian Court of Cassation, appealed for the revocation of the relevant judgment, arguing that the ruling was based was on an erroneous basis. The Court documents showed, in fact, that the absences, for two distinct periods of 109 and 124 days respectively, were due exclusively to sickness and not also to injury as indicated by the Italian Supreme Court.
The Italian Court of Cassation’s judgment following the outcome of the revocation proceedings
The Italian Court of Cassation, in accepting the appeal for revocation brought by the Company, preliminarily noted that the interpretation adopted by the appeal judges did not correspond to the literal content of Article 175 of the Italian CCNL, where the contractual provision provides for a protected period for the role ‘of a maximum period of 180 days in a calendar year’, without referring to the consecutive or interrupted nature of the absences.
The Italian Supreme Court also ruled that the solution proposed by the Court of Appeal was untenable on the basis of a general interpretation of the rules, since it did not take into account the difference, which the Italian CCNL does, between absences caused by a single sickness and the scenario in which there are different causative factors of absence (i.e. sickness and accident) that bring into operation two independent protection periods.
On the basis of the above, the Italian Supreme Court ruled that the argument that a new protection period begins to run in the same year if the illness is interrupted cannot be accepted.
Therefore, according to the Supreme Court Judges, the term of 180 days, calculated backwards from the last period of sickness within the calendar year of 365 days, must also apply to the protection period for several sicknesses and not only to the protection period for a single sickness.
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