With Order No. 26697 of 21 September 2023, the Italian Court of Cassation ruled that an employer can deny the holidays requested by a worker to avoid exceeding the limit of the job retention period only in the event that there are actual and genuine obstacles.
The facts of the case
The matter originated from the dismissal of a worker for exceeding the job retention period. The worker challenged the dismissal by providing evidence that she had asked the employer, with a communication sent and received by the company before the job retention period for the position had expired, to use accrued and untaken holidays.
With the same letter, the worker also informed the employer of her intention to request, once the holiday period ended, a period of unpaid leave if she were still unable to work. The employer rejected the request to use the holidays, granting the worker a period of unpaid leave of 120 days, and also informed her that the accrued and unused holidays would be paid on dismissal if, after the period of unpaid leave, the worker was still unable to resume work.
On expiry of the period of unpaid leave authorised by the Company, given the continuation of the employee’s illness, the employer notified the worker of dismissal for exceeding the job retention period.
The employee took legal action challenging the dismissal. In the proceedings, the Court accepted the worker’s requests, ordering the company to reinstate her.
On this point the Court of Appeal confirmed the judgment given in the first instance proceedings and found that the Company had unlawfully rejected the request made by the employee before exceeding the job retention period seeking to use accrued holidays to avoid exceeding the period.
The appeal to the Italian Court of Cassation and the latter’s judgment
The Company appealed against the judgment to the Court of Cassation.
The Italian Court of Cassation – in confirming the second instance judgment – clarified that a worker who is absent due to illness has the right to request the use of accrued and unused holidays, with the aim of suspending the running of the job retention period.
According to the Court of Cassation judges, this right does not give rise to a corresponding obligation on the employer to accept the request where there are organisational reasons that would prevent it.
The Court also reiterated the need for the reasons advanced by the employer to be actual and genuine, with a view to balancing the opposing interests and to comply with the general clauses of fairness and good faith.
As the latter requirement had not been satisfied in the present case, the Italian Supreme Court therefore rejected the appeal brought by the Company.
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