With its order no. 28606/2021, the Court of Cassation returned to the issue of leave under Law no. 104/1992, stating that the requesting employee must guarantee continuous and global assistance to the disabled family member, although they may devote a limited time to their personal needs during the leave. If the causal link between the absence from work and the assistance to the disabled person is entirely lacking, this constitutes improper use of the leave (or abuse of right) or a serious breach of the duties of fairness and good faith towards the employer and the insurance company, resulting in the employee’s liability.
An employee was dismissed for just cause because, on the day of leave granted to assist his severely disabled mother, he was found working in his wife’s shop. To prove that he was assisting his mother, the employee stated that he had stayed at her home for about 50 minutes to prepare a meal for her. The Court of Appeal, reforming the decision of the Court of First Instance, declared the dismissal to be lawful, considering that it had been proved that the employee had carried out activities unrelated to the necessary family assistance on the day of leave. According to the Court, this behaviour had irreparably damaged the bond of trust. The worker appealed to the Court of Cassation.
The Court of Cassation, in considering the dismissal lawful, noted that under Law no. 104/1992, leave must always have a causal link between absence from work and assistance to the disabled person. According to the Court, the worker must guarantee continuous and global assistance to the disabled family member, however, during leave, can devote a limited time to his personal needs. The absence of a causal link leads to the conclusion that the leave is improper and the employee’s breach of his duty of fairness and good faith is serious, giving rise to his liability.
Leave under Law no. 104/1992 must be used following its function and in the presence of a causal link with the assistance activity for which it was granted. This leave cannot be used for different needs (whatever they may be) than those related to the function for which it is intended. This is because the benefit entails an organisational sacrifice for the employer that can only be justified in the presence of needs recognised by the worker and social conscience as deserving of protection.
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