By judgment No. 450 of 13 June 2023, the Court of Appeal of Messina established that if an employer has not trained employees on the specific risks related to the tasks for which they are employed, sick days attributable to harmful working conditions do not count towards the protected period. This applies even if the employer has taken the necessary measures to protect workers’ health under the general obligation to protect their psycho-physical wellbeing under Article 2087 of the Italian Civil Code.
The facts of the case
The facts of the case stem from a claim brought by a physiotherapist who was dismissed for exceeding the maximum sickness period. The worker challenged the dismissal, arguing that 57 days had to be deducted from the protected period because the absence was attributable to carpal tunnel syndrome which developed through lifting immobile patients (tasks to which she was assigned).
The worker’s application was upheld at the preliminary stage and subsequently rejected by the Court of Barcellona Pozzo di Gotto on the ground that, although the absences were attributable to an illness attributable to her tasks, the employer had fulfilled the obligation to safeguard health under Article 2087 of the Italian Civil Code.
The worker therefore appealed against the decision of the Court of First Instance before the Court of Appeal, which overturned the judgment.
The Court’s decision
The Court of Appeal stated that the employer’s failure to comply with the training obligation prevented the days of absence from being counted towards the protected period.
In the Court’s view, it was not sufficient that the employer had complied with the obligation to provide information on the general and specific risks linked to the workers’ individual activities, since training has a further purpose, namely compliance with obligations to provide information.
In this context, the Court attached importance to the various “training” and “information” obligations by clarifying their differences. Training is the educational process necessary to acquire the skills for the safe performance of tasks, identifying, reducing and managing risks. Information, on the other hand, provides the knowledge necessary for the management, reduction and management of risks. According to the Court, ‘the former constitutes the indispensable framework for the latter to be meaningful’.
The training must, moreover, meet specific standards of adequacy, which require that the employer ensures that workers receive training tailored to the specific risks of each worker’s tasks. In this context, compliance with the obligation to provide information does not therefore replace the obligation to provide training.
Indeed, according to the Court, in the case in question it was highly probable that the worker, if she had been adequately trained, would not have had to undergo the operation, or would at least have had a shorter or less arduous course of treatment. This in turn would have reduced the number of sick days which would have fallen within the overall limit of 180 days over the three-year period.
This resulted in the breach of Article 2087 of the Italian Civil Code, which had a causal effect to the onset of the illness in the terms and times ascertained.
In this context, an employer’s failure to comply with the obligation to provide adequate training on health risks prevents days of absence from being taken into account when counting the maximum period of sickness.
Consequently, in the Court’s opinion, in the present case, the dismissal by the employer taking into account those absences was unlawful, with the consequent reinstatement of the worker in the workplace and compensation for damages, under Article 18 of Italian Law No. 300/1970.
Other related insights:
By order No 11136 of 27 April 2023, the Italian Court of Cassation ruled on the subject of dismissal for exceeding the job retention period. The Court held that absences due to injury caused to the employee by things in the employer’s custody must be included in the protected period, if the employer is able to prove that accident prevention precautions were taken and the unforeseeable and unavoidable nature of the harmful event.
The facts of the case and the decision on the merits
The employee was employed under a local authority catering sub-contract and challenged her dismissal for exceeding the protected period. In support of the application, the employee submitted that, in calculating the absences taken into account for the purpose of the protection period, those resulting from the accident which occurred due to the explosion of a thermal display cabinet owned by the principal should not have been included.
The Court of Appeal of Venice rejected the appeal brought by the employee, confirming that, in the present case, the days of absence resulting from the accident had to be taken into account, since the absolute unforeseeability of the event had emerged during the proceedings. In addition, the lower court found that the contracting authority had delivered the equipment in good condition at the time of the contract and that it complied with the legislation.
The judgment of the Italian Supreme Court
The employee appealed to the Italian Court of Cassation against the decision of the Court of Appeal of Venice.
With particular reference to the issue of absences taken into consideration for the purpose of calculating the protection period, the Italian Court of Cassation, on the basis of its precedents, confirmed that the employee absences due to an accident at work or occupational disease are attributable, in principle, to the broad and general concept of accident or illness set out in Article 2110 of the Italian Civil Code. They are, therefore, normally included in the protection period.
In fact, for the absence not to be included in the protection period, the employer must be liable for the disease and its origin under Article 2087 of the Italian Civil Code.
Liability under Article 2087 of the Italian Civil Code, the Court pointed out, does not in fact represent strict liability, since it must be linked to the breach of obligations of conduct imposed by legal norms or suggested by experimental or technical knowledge of the time. In that context, therefore, the burden of proof lies with the employee who complains that he or she has suffered damage to health as a result of his or her work, to prove that damage, as well as the harmfulness of the working environment, and the link between them. Only if the employee has provided proof of these facts does the employer bear the burden of proving that accident prevention precautions have been taken and/or the unforeseeable and unavoidable nature of the harmful event.
Applying the aforementioned principles, the Italian Court of Cassation dismissed the appeal as the trial court had found that, in the present case, the wine cellar explosion was an unforeseeable event in view of the required standard of care and applicable safety precautions.
Therefore, the dismissal was held to be lawful, given the inclusion of the absences due to injury in the calculation of the protection period.
Other related insights:
Legitimate dismissal of an invalid worker for exceeding the protected period
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:
In the event of repeated absences – which have not exceeded the limit of the protected period – the onus is on the employer to prove the additional reasons justifying the dismissal.
Dismissal based on an employee’s repeated absences from the workplace on days close to rest days and/or public holidays constitutes an unfair and arbitrary reaction by the employer to the legitimate exercise of the employee’s right to be absent due to illness and, therefore, must be considered discriminatory and retaliatory if the protected period established by the collective agreement has not been exceeded.
This was the conclusion reached by the Court of Naples in its judgment of 14 September 2022 on the basis that the employer may not terminate the relationship before the tolerable absence limit (the so-called ‘protected period’) has been exceeded.
The case before the Court related to the dismissal for just cause of an employee who was repeatedly absent for short periods usually close to rest days, public holidays or holidays. In the company’s opinion, the absences had made his work performance objectively unusable and discontinuous and caused serious and onerous disruption to business organisation.
The Court held that the dismissal was unlawful, referring, first of all, to the legal provision governing the sickness, i.e., Article 2110 of the Italian Civil Code. That legislative provision, in essence, establishes a balance between the employee’s interest in keeping his/her job for a determined period of time and the employer’s interest in not having to bear for an indefinite period of time ‘the repercussions that such absences have on business organisation’. In fact, exceeding the protected period, usually defined by collective agreement, would have the effect of jeopardising the employer’s right to receive consistent and regular services from the worker and, therefore, to satisfy fully the organisational purposes of the business.
The full version can be accessed at Norme e Tributi Plus Lavoro of Il Sole 24 Ore.
