The Court of Cassation, by its decision no. 23858 of 5 September 2024, confirming its previous ruling, stated that, in the hypothesis of a disciplinary dismissal for carrying out other activities during sick leave, the employer bears the burden of proof that the illness is simulated or that the activities carried out during the days of absence could affect or delay the return to work.
A company hired a detective agency to tail an employee who was absent on sick leave.
The investigation report revealed that the employee, during her sick leave (but not during on-call hours), carried out recreational activities and went to a shopping center.
Therefore, the company issued a disciplinary notice in respect of such conduct and subsequently dismissed the employee for just cause, on the grounds that the employee had simulated a state of illness.
The Court of Appeal ruled that the dismissal was unlawful because the alleged conduct did not occur and ordered the company to reinstate the employee.
The Court found that the employer (which bears the burden of proof) had failed to prove the just cause for the dismissal: since a medical visit was not carried out during the on-call hours, on the basis of the mere tailing the proof of the inconsistency between the declared illness and the recreational activities could not be considered to have been reached.
The company appealed to the Court of Cassation, challenging the second decree judgement on the basis of several grounds.
In particular, the company objected that the Court of Appeal had failed to assess the existence of objective presumptions from which to deduce the simulation of illness, as well as to attribute to the employee the burden of proof on the consistency of the illness with the recreational activities that had been challenged.
The Supreme Court logical and judicial approach – which led to the rejection of the company’s appeal – started from the concept of illness relevant for the purposes of suspension from work, which, as the Court stated, “includes situations in which the illness, by virtue of its intrinsic seriousness or its impact on the employee’s normal duties, determines a concrete and current, even if temporary, inability to work” (please make reference to Court of Cassation’s decisions no. 14065/1999 and no. 12152/2024).
Therefore, the judges stated that even if the illness affects the possibility of performing a specific activity that is the focus of the employment relationship, it may still happen that the remaining psycho-physical capacities allow the worker to perform other and different activities.
Consequently, the Court referred to its own precedent on disciplinary dismissal for carrying out other activities during sick leave, reiterating that the employer must prove that the illness was simulated or that the activities carried out during the days of absence were potentially liable to prejudice or delay the return to work.
According to the Court, this assessment must take into account all the circumstances of the specific situation and is entrusted to the Court of Appeal.
The Court of Cassation, therefore, held that the Court Appeal had correctly complied with the aforementioned principles of case-law, by ruling, precisely on the basis of the concrete circumstances (i.e. the entirely marginal nature of the activities carried out by the employee during her illness) and the evidence submitted by the company (the investigation report following the surveillance), that the simulation of the illness by the employee had not been proven.
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Decree-Law No. 131/2024, published in the Official Gazette on 16 September and in force since 17 September, introduced important changes for employers in the management of fixed-term contracts. This measure, known as the “Decreto Salva Infrazioni”, meets the request of the European Union – which started an infringement procedure against Italy – to align national legislation with the EU Directive 1999/70/EC on fixed-term work.
In particular, the EU Commission found that the provision of a minimum and, especially, a maximum payment to the worker was not an effective deterrent against the abuse of fixed-term contracts.
The Decree in question has therefore amended Article 28, paragraphs 2 and 3 of Legislative Decree No. 81/2015 (“Jobs Act”), introducing significant changes regarding the compensation indemnity for damages in case of fixed-term contracts declared unlawful.
One of the most impressive aspects for companies concerns the extension of the judge’s power to set compensation indemnity exceeding 12-month instalments in cases of unlawful fixed-term contracts. Previously, when a fixed-term contract was converted into an open-ended contract, the employee was entitled to a lump sum indemnity ranging from 2.5 to 12-month instalments of the last reference salary for calculating severance pay. Now, as a result of the amendment introduced, the employer may be sentenced to pay significantly higher sums if the employee proves greater damage, such as an extended period of litigation.
Another important change is the abrogation of the 6-month limit on indemnity due to workers in the case of fixed-term contracts that have been declared unlawful, a limit that previously applied in the case of collective agreements that provided for procedures to stabilize fixed-term workers. Under the previous legislation, companies could benefit from this cap, reducing the economic risk associated with any disputes.
The amendments introduced by the “Salva Infrazioni” decree imply a significant change in the management of human resources for employers. In fact, they will have to pay more attention to complying with the rules on fixed-term contracts, avoiding abuses and ensuring the correct application of the rules in force. As a result, companies will have to adopt a more prudent and rigorous strategy in the use of fixed-term contracts in order to reduce the risk of expensive claims.
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The Supreme Courte, by its decision no. 23852 of 5 September 2024, examined the question of the dismissal for just cause of an employee who, during a period of illness, participated in a football tournament already scheduled, thereby breaching his obligations of diligence, loyalty and fairness, thus jeopardising his recovery or return to work. The employee appealed the dismissal, arguing that the participation in a football tournament during his sick leave did not breach his contractual obligations. The company claimed that the employee had simulated illness in order to participate in the competition, thereby jeopardising his recovery and breaching the principles of fairness and good faith. The Supreme Court rejected the employee’s claim, stating that “the performance of physical activity during the period of illness <<…>> constitutes a breach of the contractual obligations of diligence and loyalty”. Furthermore, it stated that: “<<…>> sporting activity, by its very nature, may affect or delay recovery or the return to work”. Perhaps because of the particularly serious nature of the employee’s conduct, the judgment in question represents an important decision in a matter in which the case law has too often shown a tendency to tolerate conduct that raises doubts as to the employee’s true state of illness
On 16 September was published in the Official Gazette the Decree-Law no. 131/2024 (i.e. “Decreto Salva Infrazioni”) – in force since 17 September – which also intervened on the regulation of fixed-term contracts through which the European Union requested Italy to align Italian legislation with EU Directive 1999/70/EC on fixed-term work.
The “Salva Infrazioni” decree amended Article 28, paragraphs 2 and 3 of Legislative Decree No. 81/2015 (i.e. “Jobs Act”), introducing significant changes regarding the compensation indemnity for damages in case of fixed-term contracts declared unlawful.
Pre-existing regulation:
The maximum limit of the indemnity is reduced to 6 months’ salary in the case of collective agreements that provide for procedures to stabilize fixed-term workers.
Amendments introduced by Decree-Law No. 131/2024:
“By including the role of workers’ safety representative (i.e. “RLS”) in the area of protected subjects such as trade unionists as representatives of collective interests, the expression of solidarity with other workers with general trade union political significance is included in the constitutionally protected right to criticize and the right to express opinions”.
This has been ruled by the Court of Cassation, order no. 23850/2024. In other words, within the scope of the right to criticize and express the collective interests of which he/she is the bearer, the employee who also performs the role of workers’ safety representative must be granted the same protection as that provided for trade unionists. This means that the “RLS” can use harsher language in the exercise of his/her activities as a representative of the workers, because he/she is on an equal footing with the employer.
Of course, this shall always take place within the limits of formal correctness and the protection of the human person, so much so that “only when these limits are exceeded by attributing to the employer company or its managers openly dishonorable qualities and unproven denigrating references, can the employee’s conduct be legitimately sanctioned by disciplinary measures”.
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