The Court of Cassation, in its decision no. 24130 of 9 September 2024, provided important clarifications regarding the use of work permits under Law no. 104 of 1992, stating that a worker may be absent for short personal activities, such as shopping, and that this does not automatically entail an abuse of the right or a violation of the welfare purposes established by the law.
The dispute originated from an employer’s complaint against an employee who had used the so-called “104 leave” to go shopping in a market. In particular, the employer claimed that the employee had uses the leave for activities that did not refer to caring for her disabled family member and had therefore dismissed her for cause, considering that such conduct constituted an abuse of the benefit provided by law.
However, the Court of first instance had rejected the latter interpretation, emphasizing that the activity in question was marginal. In the present case, the employee had, in fact, gone shopping on her way to the home of the assisted family member. Consequently, the dismissal was considered to be unlawful, since the social purposes provided for by Law no. 104/92 had been fulfilled.
Confirming the decision, the Supreme Court ruled that Law no. 104/92 does not require the worker to be present at the home of the family member to be assisted for the entire duration of the working day. In fact, the Court clarified that, although absence from work must be justified on welfare grounds, this does not exclude the possibility of carrying out other minor activities, as long as these activities do not entail a clear violation of the purpose for which the leave was granted. In fact, the judgment reiterates that leave is granted on a daily basis and not on an hourly or chronometric basis.
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In ruling no. 20523 of 27 June 2022, the Court of Cassation stated that “the right to choose the office closest to the home of the disabled person to be assisted is not an absolute and unlimited subjective right but is subject to the decision of the Administration which, according to its organisational needs, may make the post “available” by means of a measure to fill the “vacancy.”
A worker employed at the General Directorate of Inspection in Rome took legal action to verify his right, under Law no. 104 of 1992, Article 33, paragraph 5, to be transferred to the Provincial Labour Directorate of Foggia (or, alternatively, to the Regional Labour Directorate of Bari), to assist his severely disabled mother and have his transfer ordered. He also requested that the Administration pay compensation for the pecuniary and non-pecuniary damage suffered.
The Court of Rome, first, and then the Court of Appeal of Rome, ruled on the applicant’s appeal against the Ministry of Labour and Social Policies, and rejected his request. The worker appealed in cassation.
Article 33, paragraph 5) of Law 104/1992 provides that “The worker referred to in paragraph 3 (i.e., a public or private employee who assists a disabled person in serious conditions) has the right to choose, the workplace closest to the home of the person to be assisted and cannot be transferred to another place without their consent.”
The above right to choose the place of employment cannot be considered absolute and unlimited, since the legal provision specifies that the right to choose the place of employment closest to the domicile of the person to be assisted exists only “where possible.”
The intention of the rule is to balance two conflicting interests, namely the employee’s interest in the transfer and the financial-organisational interest of the employer, especially in matters of public employment relations, where such balancing concerns the interest of the community.
The Court of Cassation cited previous case law and stated that Law 104 of 1992 aims to indirectly protect disabled persons by giving their family members the opportunity to choose the most suitable place of work to assist the disabled person. However, the worker’s right to choose is not unconditional, as it cannot harm the employer’s financial, production or organisational needs, especially in public employment, it cannot create a detriment to the interests of the community (see Court of Cassation ruling 25 January 2006, no. 1396; Court of Cassation ruling Single Section, 27 March 2008, no. 7945; Court of Cassation ruling 18 February 2009, no. 3896; Court of Cassation ruling 30 March 2018, no. 7981; most recently, see Court of Cassation ruling 22 February 2021, no. 4677).
Within public employment it is not the employer’s interest, but the interest of the community which must be considered. For this reason, a vacancy is not a sufficient condition to make the worker’s right to choose a location absolute and unlimited, since it must be accompanied by the Public Administration’s decision to make that post available. The administration is free to choose whether to fill a vacancy or favour different solutions, in compliance with the principles of impartiality and good conduct by which it must be guided.
The local court found there were no vacancies at the judicial offices requested by the appellant in Foggia or Bari. According to a court of appeal finding (and therefore unquestionable in the court of law), the administration’s interest in not depriving the Rome office, where the appellant was working, prevailed.
In conclusion, the family’s need to choose the most suitable place of employment for a person with a disability is, as a rule, less relevant than service needs. In public employment, vacancy is “a potential” that becomes “actual” only in the face of a Public Administration decision, which must express the practical interest of filling the post, and making the vacancy available (Court of Cassation ruling no. 11651/2018, above; Court of Cassation ruling 13 August 2021, no. 22885).
The Court of Cassation confirmed the decision of the Court of Appeal of Rome, and rejected the appeal, ordering the worker to pay the legal expenses.
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