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In ruling No. 36188/2022, the Italian Supreme Court confirmed that an employer cannot impose dismissal on an employee who is absent due to illness during the grace period, on the grounds of the so-called “poor performance” of the employee.
In this article we are going to discuss:
The case at hand concerns the dismissal for poor performance of a worker who had used 210 days of sick leave in the last three years, but never exceeded the maximum annual leave period. According to the employer, the worker’s excessive absence had rendered work performance “not profitably usable”, causing concrete harm to the company’s organization.
In other words, in the employer’s view the employee’s behavior had been a clear breach of the duty of diligent cooperation, such that it had prompted dismissal under Article 3 of Law No. 604 of 1966 (so-called “dismissal for justified reason”).
However, in ruling No. 36188/2022, the Italian Supreme Court reiterated that the employer, during the leave of absence, cannot impose dismissal on the sick employee, citing the so-called “poor performance”.
Before looking into the content of the decision, we will first review what is meant by “dismissal for poor performance” and “grace period”.
Poor performance, as an economic reason for termination, does not necessarily have to depend on the employee’s lack of diligence (also because – in that case – it would be “disciplinary dismissal”), but can occur whenever the employee fails to perform his or her duties, even blamelessly, affecting the company’s production.
The Italian legislation brings dismissal for poor performance back within the scope of dismissal for objective justification, pursuant to Law No. 604 of 1966.
Article 3 of the aforementioned Law states: “Dismissal for justified reason with notice shall be determined by a significant breach of the contractual obligations of the employee or by reasons inherent in the productive activity, the organization of work and the regular operation thereof“.
The above provision cannot be taken as absolute since – as in the case at hand – the interests of the parties are different (both of constitutional status) and a proper balancing must be made.
While it is actually in the employer’s interest to have a productive and efficient workforce in his employ, it is in the employee’s interest to be able to enjoy a reasonable period of time to recover from his illness by having his job preserved.
In the decision which is the subject of this article, the Court reiterates that “while poor performance is characterized by the employee’s failure to perform, even if unaware of it, the same cannot be said for absences due to illness, and the protection of health is a primary value which justifies its specialty”.
Health turns out to be a primary value to be protected and, therefore, in order to balance said conflicting interests, the only condition for the legitimacy of the employer’s termination is the exceeding of the period of grace as established by the Law, i.e. the exceeding of the days of absence per year that the Law (together with collective agreements) guarantees to every worker for health reasons.
Thus, the logic of Article 2110 of the Italian Civil Code is explained: by regulating cases of so-called “suspension of work performance” due to illness, injury and so on, it prevents the employer from dismissing during the period of grace.
Dismissal announced before the period of grace has expired and motivated solely by the continuation of the state of illness is actually to be considered null and void because it is contrary to a mandatory rule of law.
In ruling No. 36188/2022, giving continuity to the previous jurisprudential orientation (see Cass. No. 31763 of 2018; Cass. No. 15523 of 2018), the Italian Supreme Court reiterated that “the non-utility of the service for the time of the illness is an event provided for and regulated by the legislator with consequences that can lead to the termination of the employment relationship only after the exceeding of the grace period governed by Art. 2110 of the Italian Civil Code and collective agreements“.
There is really nothing new except for the much-valued confirmation of a constitutionally guaranteed right (and which – needless to say – has nothing to do with the behavior of those who instead mischievously abuse the norms set up to protect health).
The employment law department of the Canella Camaiora Law Firm is available to you for any doubts on the subject and you can certainly contact the author or Attorney Antonella Marmo.