The Supreme Court Upholds the Dismissal for Just Cause of an Employee Who Used Parental Leave to Work at His Wife’s Seaside Resort Instead of Caring for His Children
Parental leave, governed by Article 32 of Legislative Decree no. 151/2001, is an instrument designed to protect parenthood, conceived to allow working parents to devote time to caring for their child in the early years of life, meeting the child’s emotional and relational needs. However, although this right is characterized as a prerogative right (diritto potestativo), it is not without limits, and its exercise is strictly bound to the purpose for which it was established. With its recent order no. 24922, issued on 9 September 2025, the Court of Cassation once again addressed the sensitive issue of the abuse of this measure, confirming the legitimacy of dismissal for just cause imposed on an employee who had used parental leave for purposes other than caring for his children.
The case originated from the disciplinary dismissal imposed by a company on one of its employees for abusing parental leave.
The Court of Appeal of Reggio Calabria, overturning the first-instance decision, upheld the lawfulness of the termination, finding that the employee, during his period of absence from work (specifically on 9, 14, 15, and 16 August 2019), had engaged in work activities at the seaside resort managed by his wife, thereby neglecting the direct care of his children and, in particular, of his three-year-old child. According to the Court of Appeal, such conduct distorted the very purpose of the measure, even making it necessary to resort to external help to compensate for his absence, in clear conflict with the purpose of parental leave, which is to foster the father–child relationship. Against this ruling, the employee lodged an appeal before the Court of Cassation.
The Court of Cassation dismissed the appeal in its entirety, providing important clarifications on the limits of the exercise of the right to parental leave and on the reviewability of abusive conduct.
The Court reiterated that parental leave is a prerogative right (diritto potestativo), the exercise of which, however, is not arbitrary but functionally oriented toward the direct care of the child. Engaging in any other activity not strictly related to this purpose constitutes an abuse of rights and a breach of the principle of contractual good faith, both towards the employer—who is unjustly deprived of the employee’s performance and suffers a breach of trust—and towards the social security institution, through the undue receipt of benefits and the diversion of welfare support from its intended purpose.
In its reasoning, the Court also referred, by analogy, to its well-established case law on leave granted under Law no. 104/1992 (among many: Cass. no. 12679/2024, no. 6468/2024, no. 25290/2022, no. 1394/2020). In this regard, the Supreme Court affirmed that the episodic nature of the conduct is irrelevant: any deviation from the legitimate purpose is sufficient to constitute a serious misconduct capable of irreparably undermining the fiduciary relationship between employee and employer.
Indeed, the principles set forth are paradigmatic in delineating the boundaries of abuse of rights and in qualifying the conduct of employees who use protective measures granted by law for purposes unrelated to those for which they were provided.
Verification of such abuses often takes place through targeted monitoring, in particular by investigative agencies. On this point, case law is clear: Article 4 of the Workers’ Statute prohibits any form of direct surveillance of work activity but permits defensive checks aimed at verifying fraudulent conduct unrelated to the performance of work duties.
For example, the Court of Cassation (most recently, Order of 12 February 2025, no. 3607) upheld the dismissal for just cause of an employee who, after clocking in, left the workplace to attend to personal matters, ascertained through a private investigator. Similarly, with Order of 30 January 2025, no. 2157, the Court held that the use of investigative agencies to verify abuse of leave under Law no. 104/1992 is lawful, provided there are well-founded suspicions and the investigations are proportionate and non-invasive.
Thus, investigative monitoring is lawful if limited and justified: it may never become generalized surveillance but must have as its sole objective the verification of conduct detrimental to the company’s interests or to the enterprise’s reputational assets (Cass. no. 30079/2024).
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In the absence of proof of the employer’s intention to terminate, a claim of ineffectiveness of an oral dismissal must be rejected
The Court of Catania, in its recent judgment no. 2385 of 5 June 2025, reiterated that a claim challenging a dismissal, where the ineffectiveness of the measure is alleged on the grounds that it was communicated orally, places on the employee—pursuant to the general principles set out in Article 2697 of the Italian Civil Code—the burden of proving the constitutive fact of the claim, namely that the termination of the employment relationship is attributable to the employer’s intention to remove the worker.
This ruling aligns with a now well-established line of case law, reaffirming with clarity the governing principles and offering a rigorous application of evidentiary rules.
As is well known, individual dismissal is a unilateral and receptive act subject to a mandatory form requirement: under penalty of ineffectiveness, it must be communicated in writing.
This fundamental principle is unequivocally set out in Article 2 of Law No. 604 of 15 July 1966, which states that “the employer, whether or not an entrepreneur, must notify the employee of the dismissal in writing.”
Written form is required ad substantiam, meaning as an essential requirement for the validity of the termination itself. Its absence results in the most severe legal consequence: the ineffectiveness of the dismissal, as expressly provided for in the third paragraph of the same article.
This means that a dismissal communicated only verbally is considered tamquam non esset—as if it had never occurred—and is therefore entirely incapable of producing the terminating effect on the employment relationship.
The rationale underlying this mandatory rule lies in the need to ensure certainty in legal relationships, to enable the employee to mount a full and informed defense through judicial challenge, and to guarantee that the employer’s decision to terminate is formalized in a clear and permanent manner.
While the substantive legal provision is clear, its practical application raises a crucial procedural issue when the employee turns to the court claiming to have been excluded from the workplace following nothing more than an oral communication.
In this scenario, resolution of the dispute shifts to the evidentiary level, governed by the general rule set out in Article 2697 of the Italian Civil Code, according to which “the party who wishes to assert a right in court must prove the facts on which the claim is based.”
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Reflections in light of current events on workplace relationships
At a time when companies promote workplace well-being, diversity, and work-life balance, one issue often remains in the background—rarely spoken about, yet strongly felt: romantic relationships in the workplace.
This is anything but an easy matter to address, as it touches on sensitive aspects of employment law: the personal freedom of each individual clashing with the risk of conflicts of interest, while also involving the management of workplace climate and the employer’s responsibilities. A complex web, difficult to untangle—especially from a strictly legal standpoint.
Recent events have also brought the topic of workplace relationships to the forefront of public debate. Consider, for example, the so-called “ColdplayGate” case, where the kiss cam spotlight made viral the relationship (and alleged infidelity) of the then-CEO of Astronomer and the company’s HR manager. Or, more recently, the case of the now former CEO of Nestlé, who was dismissed by the company’s management for engaging in an “undisclosed relationship” with an employee, in breach of the corporate code of conduct and the group’s internal guidelines.
In any case, the point is clear: employment law and case law do not sanction personal feelings; rather, they aim to safeguard corporate organization, the principle of non-discrimination (between employees treated differently for relational reasons), and managerial transparency.
Indeed, a dismissal based solely on the mere existence of a romantic relationship between colleagues, or on its non-disclosure, would in all likelihood be deemed unlawful as a violation of the employee’s right to privacy.
However, dismissal may be considered legitimate if the employer can demonstrate that such a relationship has concretely and objectively created a conflict of interest or resulted in a breach of the duties of loyalty, fairness, and diligence, thereby irreparably undermining the bond of trust. The burden of proof for such circumstances, in any case, rests entirely with the employer.
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Checks must always be carried out in full compliance with the employee’s privacy and dignity.
The use of private investigation agencies can be a potentially very effective tool for companies, allowing them to identify unlawful conduct by their employees, such as the improper use of leave under Law 104/92. However, it is essential to strike a balance between the employer’s need to protect corporate interests and, on the other hand, the employee’s right to dignity and privacy. When resorting to this type of solution, any form of invasive or indiscriminate surveillance must be avoided.”
Furthermore, case law has reiterated that the use of private investigation agencies must be justified by concrete reasons. In fact, an investigation is deemed legitimate only when the employer has well-founded suspicions of an improper use of leave by the employee.
Continue reading the full version published on Il Sole 24 Ore
In its Order No. 16358 of June 17, 2025, the Italian Supreme Court addressed the topic of dismissal for just cause, clarifying the distribution of the burden of proof and the appropriate approach that courts must adopt when the dismissal is based on multiple charges.
The case involved a disciplinary dismissal imposed by a symphony foundation (the “Foundation”) on a lyric singer during her sick leave. The employee was subject to two charges: first, leaving her residence during hours of medical availability, and second, engaging in various activities (such as dining out with her partner, shopping, and singing at religious events) despite her certified illness.
The Naples Tribunal rejected the employee’s appeal at both summary and full opposition stages (under the “Fornero Procedure”), upholding the legitimacy of the dismissal. The Naples Court of Appeal reversed the decision, ruling the dismissal unlawful and ordering the employee’s reinstatement along with eight months’ wage compensation.
The appellate court focused primarily on one of the charges, considering the singing activity during sick leave to be minor, occasional, and not amounting to professional work. Based on that, the court held that the alleged misconduct was unfounded.
The Foundation filed an appeal with the Supreme Court, arguing that the appellate court failed to assess the second, independent charge.
The Supreme Court upheld the Foundation’s claim on this point, overturning the ruling and remanding the case to a different panel of the Naples Court of Appeal for a new judgment.
The Court criticized the lower court for basing its decision solely on one charge. It reiterated the principle that, in cases of dismissal for just cause based on multiple allegations, each allegation may independently justify the sanction unless it is proven that only the cumulative effect of all the charges would warrant termination.
According to this principle, the employer need not prove that the dismissal depends on the totality of conduct, whereas the burden shifts to the employee to show that none of the charges, taken individually, would be serious enough to justify termination. The appellate court failed to consider this and omitted evaluation of one of the charges, thereby violating this principle.
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