The Court of Cassation, by its decision no. 23858 of 5 September 2024, confirming its previous ruling, stated that, in the hypothesis of a disciplinary dismissal for carrying out other activities during sick leave, the employer bears the burden of proof that the illness is simulated or that the activities carried out during the days of absence could affect or delay the return to work.
A company hired a detective agency to tail an employee who was absent on sick leave.
The investigation report revealed that the employee, during her sick leave (but not during on-call hours), carried out recreational activities and went to a shopping center.
Therefore, the company issued a disciplinary notice in respect of such conduct and subsequently dismissed the employee for just cause, on the grounds that the employee had simulated a state of illness.
The Court of Appeal ruled that the dismissal was unlawful because the alleged conduct did not occur and ordered the company to reinstate the employee.
The Court found that the employer (which bears the burden of proof) had failed to prove the just cause for the dismissal: since a medical visit was not carried out during the on-call hours, on the basis of the mere tailing the proof of the inconsistency between the declared illness and the recreational activities could not be considered to have been reached.
The company appealed to the Court of Cassation, challenging the second decree judgement on the basis of several grounds.
In particular, the company objected that the Court of Appeal had failed to assess the existence of objective presumptions from which to deduce the simulation of illness, as well as to attribute to the employee the burden of proof on the consistency of the illness with the recreational activities that had been challenged.
The Supreme Court logical and judicial approach – which led to the rejection of the company’s appeal – started from the concept of illness relevant for the purposes of suspension from work, which, as the Court stated, “includes situations in which the illness, by virtue of its intrinsic seriousness or its impact on the employee’s normal duties, determines a concrete and current, even if temporary, inability to work” (please make reference to Court of Cassation’s decisions no. 14065/1999 and no. 12152/2024).
Therefore, the judges stated that even if the illness affects the possibility of performing a specific activity that is the focus of the employment relationship, it may still happen that the remaining psycho-physical capacities allow the worker to perform other and different activities.
Consequently, the Court referred to its own precedent on disciplinary dismissal for carrying out other activities during sick leave, reiterating that the employer must prove that the illness was simulated or that the activities carried out during the days of absence were potentially liable to prejudice or delay the return to work.
According to the Court, this assessment must take into account all the circumstances of the specific situation and is entrusted to the Court of Appeal.
The Court of Cassation, therefore, held that the Court Appeal had correctly complied with the aforementioned principles of case-law, by ruling, precisely on the basis of the concrete circumstances (i.e. the entirely marginal nature of the activities carried out by the employee during her illness) and the evidence submitted by the company (the investigation report following the surveillance), that the simulation of the illness by the employee had not been proven.
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