The Court of Cassation, with order No. 18960 of 11 September 2020, has stated that in no way may the dismissal following the protected period be deemed belated when the employer, prior to notifying same, waits for an adequate period of time in order to carry out a “prognosis of endurableness” of the overall absence compared to the undertaking’s interest remaining. According to the Court of Cassation, the requirement of the timeliness of the withdrawal following the protected period cannot turn into a fixed and predetermined chronological fact, since it must undergo an adequacy assessment to be made in practice with respect to the entire de facto context. Therefore, even a considerable lapse of time between actually exceeding the protected period and the moment in which the employer decides to notify the dismissal must be deemed to be in line with the legal system’s provisions. The above provided that the employer uses this interim interval to carry out a check as to whether the sick leave is compatible with the service requested to the employee. Instead, still in the opinion of the Court of Cassation, the worker concerned must prove that the time interval between actually exceeding the protected period and the service of the withdrawal has exceeded the limits of adequacy and reasonableness such as to lead to understand that there is an implied intention on the employer’s side to waive the respective own right to withdraw from the employment contract in force.
