With its judgement no. 21667 of 19 September 2017, the Court of Cassation has maintained that an employee performing a work activity while on sick leave does not legitimize its outright dismissal at all times. In ruling in this sense, the court has made reference to the case law that maintains that the performance of a work activity while on sick leave constitutes a disciplinary violation if (i) it presumes a lack of the disease itself or (ii) it jeopardizes or delays healing and consequently return to work. With specific regard to the case at hand, the Court of Cassation has clarified that the conduct of the sick worker – consisting of driving his own car to his son’s shop to perform certain activities, such as moving light weights as well as raising a shutter – is not a violation per se of the duty of fairness and good faith by which the same must abide not to delay healing. This is so because the extra work activity of the sick worker was so limited that it could be performed without harming his physical integrity, and therefore, without delaying his time to healing. Consequently, the employee dismissal is illegitimate.
