In its recent judgment No 5288 of 20 February 2023, the Italian Court of Cassation ruled that, with reference to the national collective bargaining agreement for employees in the tertiary sector (hereinafter the ‘CCNL’), the job retention period of 180 days, to be calculated in a calendar year starting from the first episode of illness, must be considered to refer to both the protected period relating to a single long-term sick leave and the protected period relating to several days of sick leave (i.e. by aggregation, ‘sommatoria’).
The Court of Appeal of Catanzaro upheld the appeal of an employee dismissed for exceeding the protected period and, partially reversing the first instance judgment, held the dismissal to be unlawful. The Court of Appeal ordered the employer company to reinstate the employee and to pay compensation for damages under Article 18 of the Workers’ Charter.
The regional Court reached its decision stating that ‘based on the provisions of Articles 175 and 177 of the tertiary CCNL read in conjunction […] if a period of sickness is followed in the same year by an interruption, a new protected period of 180 days starts to run’. The Court of Appeal, therefore, having ascertained that the employee had not had 180 consecutive days of sick leave in the course of the calendar year, held that there had been no exceedance of the protected period which had been the basis of the dismissal by the employer.
The Company filed an appeal before the Italian Court of cassation against the Court of Appeal’s judgment. The two grounds of appeal related to the breach and false application of Article 175 of the Italian CCNL, arguing that this provision contemplated an ‘aggregated’ protected period – which, in the present case, was to be considered exceeded by the employee – and not a ‘single’ protected period as ruled by the regional Court.
The Italian Court of Cassation, in order No 23155 of 2020, rejected the appeal brought by the Company, stating that ‘if the injury is followed by a period of absence due to sickness, as was unquestionably the case in this instance, even if there is no interruption, a separate period of 180 days begins to run from the time of the onset of the sickness, and only at the expiry of this period can there be dismissal for exceeding the protection period’.
The Company, alleging a factual error in the ruling made by the Italian Court of Cassation, appealed for the revocation of the relevant judgment, arguing that the ruling was based was on an erroneous basis. The Court documents showed, in fact, that the absences, for two distinct periods of 109 and 124 days respectively, were due exclusively to sickness and not also to injury as indicated by the Italian Supreme Court.
The Italian Court of Cassation, in accepting the appeal for revocation brought by the Company, preliminarily noted that the interpretation adopted by the appeal judges did not correspond to the literal content of Article 175 of the Italian CCNL, where the contractual provision provides for a protected period for the role ‘of a maximum period of 180 days in a calendar year’, without referring to the consecutive or interrupted nature of the absences.
The Italian Supreme Court also ruled that the solution proposed by the Court of Appeal was untenable on the basis of a general interpretation of the rules, since it did not take into account the difference, which the Italian CCNL does, between absences caused by a single sickness and the scenario in which there are different causative factors of absence (i.e. sickness and accident) that bring into operation two independent protection periods.
Therefore, according to the Supreme Court Judges, the term of 180 days, calculated backwards from the last period of sickness within the calendar year of 365 days, must also apply to the protection period for several sicknesses and not only to the protection period for a single sickness.
Other related insights:
The Court of Cassation, in its judgment No. 980 of 17 January 2020, clarified that, in the context of disciplinary proceedings, the state of illness cannot in itself be sufficient to justify the inability to attend the hearing requested in order to make oral counter-arguments in relation to the contested facts.
Facts of the case
The case in question originates from a dismissal for just cause of an employee of Poste Italiane S.p.A. for abuse of his position, having persuaded some colleagues to activate Postpay prepaid cards in violation of certain internal procedures.
In the course of the disciplinary proceedings culminating in the expulsion order, the employee had requested to be heard orally about the serious contested facts within the legal time frame. However, once summoned to the defence, on two occasions, the employee had asked for the postponement of the meeting on the basis of attached certificates of illness.
In the objection and complaint proceedings in the Fornero procedure, both the Court [of First Instance] and the Bologna Court of Appeal confirmed the lawfulness of the dismissal. This was due to the fact that the employer had set a date for the hearing as requested by the employee, which was renewed because of his failure to appear at the first of two hearings due to illness. The company had also warned the employee of his need to complete the disciplinary procedure with the second date with respect to the provision of collective bargaining. As if that were not enough, the worker was invited to submit further written justification which, however, he failed to do.
The employee appealed against the decision on the merits to the Court of Cassation, complaining, among other things, of the infringement of his rights of defence at the disciplinary stage, since the company had not granted the second of the two deferments of the oral hearing requested by him on the grounds of illness.
The decision of the Court of Cassation
The Court of Cassation, in rejecting the worker’s appeal, considered the employer’s actions to be in line with the general principles of fairness and good contractual faith. In fact, at first, it had granted the postponement of the first meeting and, subsequently, had warned the worker of its unwillingness to grant a third date. But not only that. The Company had invited the worker to return his counterarguments in writing so as not to incur in forfeiture for late withdrawal, based on the provisions of collective bargaining in the sector.
According to the Court of Cassation, although it is true that the worker, in the context of disciplinary proceedings, has the right to be heard orally by the employer, it is not quite as true that they have the right to defer the meeting on the basis of any state of illness, since this in itself does not imply the absolute impossibility of leaving home temporarily. Rather, in the Court’s view, it is necessary to specifically allege and prove that the restricting nature of the illness suffered is an obstacle to physically leaving the house in order to constitute the ‘not otherwise protectable’ defence requirement.
The Court of Cassation, in fact, specifies that “the mere allegation, by the worker, even if certified, of the condition of illness cannot be sufficient in itself to justify the impossibility of attending the personal hearing requested, since it is necessary for him to deduce its nature as an obstacle to physically leaving the house (or the place of treatment), so that its postponement to a new date of personal hearing constitutes a de facto defence requirement that cannot otherwise be protected“.
