Sending the medical certificate by fax is a valid method of notification of illness by the employee, as it is expressly provided for in the company’s rules.
The Supreme Court, in its order no. 25661 of 25 September 2024, held that the dismissal of an employee who communicated his illness via fax, while on holiday abroad, was unlawful. The Court stated that this method of notification was in accordance with the company’s rules. Furthermore, the Supreme Court emphasized that the notification of illness could also take place in a form other than by registered letter, if provided for by the company’s rules.
Employment relationship – Notification of illness – Method of transmission – Medical certificate – Fax as valid instrument – Company rules – Presumption of receipt – Documentation of transmission – Employee’s conduct – Illness abroad – Dismissal – Valid transmission
Notification of illness to the employer may be validly effected by fax if that method is expressly provided for in the company’s rules. In such circumstances, the fax is deemed to have been correctly received by the employer if the employee can prove, by means of transmission reports, that the notification was successful, even if there is no record on the company’s servers. The employee’s conduct in notifying the employer of his illness from abroad, although potentially negligent, will not constitute a valid reason for dismissal unless it can be shown that the employee was aware of the failure of the transmission.
The case examined by the Supreme Court concerns a dismissal for just cause due to “unjustified absence of more than four days” against an employee who became ill while he was on vacation in Romania. The employee argued that his absence was justified, stating that he had contracted the illness during his vacation and, therefore, had sent the medical certificate by fax, in accordance with the company’s rules.
Following the dismissal, the employee challenged the measure before the Court of First Instance of Treviso, (Italy) requesting the repeal of the dismissal due to the non-existence of the alleged infringement.
The main argument in the company’s defense consisted in the alleged inadequacy of the illness notification. Specifically, the company claimed that the employee did not respect the procedures set out in the company’s rules, which, according to the company, required both a more “formal” notification, typically through registered mail, and a telephone call notice. The employee, however, disagreed, stating that sending a fax was an acceptable method according to the rules, and that the certificate had been transmitted correctly, as evidenced by the transmission report.
During the preliminary hearing, the Court of First Instance of Treviso upheld the employee’s appeal, declaring the dismissal null and void and ordering his reinstatement. Additionally, it ordered the company to pay an equal compensation «to the employee for the period from the date of dismissal until his actual reinstatement, based on his gross salary».
Against the Court of First Instance’s decision, the Company brought the case before the Court of Appeal of Venice. The latter partially upheld the appeal, confirming the unlawfulness of the dismissal and the employee’s reinstatement, re-determining the compensation to twelve months’ salary.
The Court stated that Article 40 of the applicable national collective bargaining agreement provides for unjustified absence of four days or more as grounds for disciplinary dismissal, including in the definition of unjustified absence also late communication and late sending of the medical certificate.
Moreover, according to the company’s rules, it was the employee’s precise duty to notify the employer on the day of the event, in addition to sending the medical certificate.
Furthermore, it turned out that the employee had not documented any impediment justifying the failure to notify; in fact, the only text message sent was dated days after the beginning of the disputed absence.
A final significant aspect examined by the Court of Appeal concerned the employee’s failure to allege a possible impediment to telephone communication. On this point, the Court of Appeal noted that «the employee has not demonstrated an impediment of such gravity as to radically exclude the possibility of a prior serious attempt to contact the company director». Finally, it stated that «the employee has behaved in a formally obsequious manner in relation to contractual obligations, but he has only minimally fulfilled them».
Consequently, the Court found that the employee had failed to comply with the obligation to notify the employer by telephone, in breach of the company’s rules and of the duty of care required in the context of a subordinate employment relationship.
The company appealed to the Supreme Court on five grounds against the decision of the Court of Appeal.
The first ground of appeal was based on the alleged nullity of the judgment on the ground that the Court of Appeal had made contradictory and irreconcilable statements. In particular, the judges of the appeal had «first affirmed that the employee’s conduct was neither linear nor based on the essential rules of diligence required by the employment relationship» and then « excluded the existence of a just cause that allowed the dismissal».
The Court of Cassation rejected the aforementioned argument, stating that the contradiction was only apparent, as the Court of Appeal had considered sufficient both the method of transmission by fax, as provided for in the company’s rules, and the proof of its receipt in the transmission report submitted by the employee at the trial, since a similar fax had been sent to the INPS and duly received by it.
In its second plea, the company challenged the Supreme Court for finding that fax transmission was “appropriate”.
The Court of Cassation held that the plea was not grounded because «fax is a method provided for by the company’s rules» and «the law does not exclude equivalent methods according to the forms of use that may be provided for by the company’s rules».
In its third ground of appeal, the company argued that the Court of First Instance of Treviso had contradicted itself by «first stating that it was only during the trial that the employer was able to verify the content of the fax, i.e. the medical certificate, and then stating that there was no evidence of falsification or alteration of the message».
Also in this case, the Court of Cassation rejected the company’s arguments, stating that the fax was a valid means of communication, as provided for in the company’s rules, so that «the knowledge of the addressee is irrelevant for the purposes of the fact that is the subject of the disciplinary complaint».
By its fourth ground of appeal, the company challenged the local Court’s presumption of the correct receipt of the fax based on the only available information concerning the actual sending of the fax.
The Court of Cassation stated that «the employee’s obligation ends with the confirmation of the successful transmission of the fax», thus confirming that «the employee’s conduct is therefore exempt from liability».
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With Order No. 23850/2024, published on 5 September 2024, the Supreme Court clarified that employees who also act as workers’ safety representatives (“RLS”) are entitled to the same protection as trade unionists. This means that “RLSs” can use harsher tones than those “normally allowed” for an employee, because they stand on an equal footing with the employer. There are, of course, limits to this in terms of respect for fairness and human dignity, which, when crossed by derogatory and unproven statements, justify the employer’s disciplinary action.
An employer sanctioned an employee, in charge of employee safety, with a ten-day suspension from work because his statements, which appeared on an online information portal and in a local newspaper, concerning data on accidents to travelers due to door defects and fatal accidents at work, exceeded the limits of the right to criticism and moderation.
Specifically, the employee had expressed solidarity declarations regarding the non-reinstatement of a group of workers, describing that conduct as an «anti-democratic and anti-union shortcut».
The employee contested the disciplinary sanction, which was confirmed at first instance and overturned on appeal.
The Supreme Court confirmed the appellate court’s decision, concluding that even harsh criticism of the employer’s activities, when expressed by a person who represents the collective interests of the workers against those of the employer, such as the “RLS” in this case, cannot be the subject of disciplinary sanctions. The ruling states that “by including the role of the RLS in the area of protected subjects, such as trade union members representing collective interests, the expression of solidarity with other workers with a general trade union political value is part of the constitutionally protected right of criticism and the right to express ideas”.
All this, of course, should always be done within the limits of formal correctness and the protection of the human person, so much that “only when these limits are exceeded by the attribution to the employer company or its managers of openly dishonorable qualities and unproven disparaging references, can the employee’s conduct be legitimately sanctioned by disciplinary measures”.
Other related insights:
“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”.
Other related insights:
From 1 October 2024, businesses and self-employed workers operating on temporary or mobile construction sites, as defined by the Consolidated Safety Act (specifically, Article 89, paragraph 1, letter a), of Italian Legislative Decree no. 81/2008), are required to have a licence, in digital format, issued by the competent local office of the Italian National Labour Inspectorate.
This requirement was recently introduced by Article 29, paragraph 19, letter a), of Italian Decree Law of 2 March 2024, no. 19, not yet converted into law, which, replacing Article 27, paragraph 1) of the Consolidated Safety Act, introduces a credits accreditation system for businesses, and self-employed workers. The licence will be issued subject to satisfying the requirements specifically identified by the law, namely: (i) registration with the Chamber of commerce; (ii) compliance with the training obligations provided for in Article 37 of the Consolidated Safety Act applicable to company employers, executives, managers and workers; (iii) compliance by self-employed workers with the training obligations; (iv) holding a valid Certificate of Contributions Compliance (Documento Unico di Regolarità Contributiva, ‘DURC’); (v) holding a Risk Assessment Document or (vi) holding a Certificate of Tax Compliance Documento unico di regolarità fiscale (DURF).
Pending the issuance of a licence, unless otherwise notified by the Inspectorate, businesses and self-employed workers will still be able to operate within construction sites.
The new system provides for an initial balance of 30 credits and a minimum of 15 credits. If the score falls below the minimum threshold, subject to exceptions, it is not possible to operate on temporary or mobile construction sites. The accreditation system provides for credit reductions in the face of certain events, assessments or measures issued against company employers, executives, managers or the self-employed worker. Without prejudice to this, it is also provided that reduced credits can be reinstated.
Verification of the holding of the licence is delegated to the principal or to the works manager. Carrying on work in the absence of a licence or while holding a licence with a score lower than the minimum gives rise to an administrative fine of up to EUR 12,000 and exclusion from participation in public works for a period of six months.
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Prior to 1 October 2024, and considering that there may be amendments to the decree before it is converted into law, companies and self-employed workers who are subject to the new obligations must take steps as to ensure compliance with the provisions of the new accreditation system.
Other related insights:
The Italian Data Protection Authority, last May 14 published a document on the Company Physician role regarding the implementation of vaccination plans for the activation of extraordinary anti-Covid-19 vaccination points, provided by the National Protocol signed on 6 April 2021.
In this document, the Data Protection Authority clarifies that the tasks assigned to the Company Physician assume the function of “general prevention measures“ to be implemented in compliance with safety at work regulations, personal data protection principles, safety protocols and updated instructions from the Ministry of Health.
The Company Physician must constantly cooperate with the employer and the health prevention and protection service in the:
Considering the ongoing emergency, the Company Physician should continue and intensify health monitoring by providing further medical examinations, for example, when employees return to work after the suspension of production activities, or if there is a gradual return of resources “to work premises.”
Recalling what has already been expressly clarified in the FAQ (“Frequently Asked Questions“) of 17 February, the Data Protection Authority reiterates that the employer must ensure that employees “are not assigned a work task without an assessment of suitability” considering “their skills and conditions concerning their health and safety” (art. 18, paragraph 1, letter c), Legislative Decree. no. 81/2008). As part of their health monitoring activities, the Company Physician is the only person entitled to process workers’ health data and check their suitability for the “specific task” (Articles 25, 39, paragraph 5, and 41, paragraph 4, Legislative Decree no. 81/2008).
The document states that compliance with the necessary allocation of roles and responsibilities between employer and physician must be ensured, including vaccination in the workplace. Although this originates from the dual need to contribute to the rapid implementation of the vaccination campaign nationally and increase safety levels in the workplace, it remains a “public health initiative.” “The general responsibility and supervision of this process is in the hands of the regional health service, through the local health authority.”
