Sickness and dismissal: a new interpretation of the Italian Supreme Court

According to the decision No 18678/2014 of the Italian Supreme Court, it has to be considered lawful the dismissal of an employee who reiterated illness related absences, even if they did not exceed the so-called “periodo di comporto” (i.e. a period of time, normally indicated by the collective bargaining agreements, during which an employee on sick leave is entitled to keep both job and salary).

According to the surprising opinion of the Court (which is in contrast with previous decisions of the same Supreme Court), the many absences of the employee made the whole performance provided by the employee inadequate, thus allowing the employer to dismiss the employee for poor performance (“scarso rendimento”), which is considered “a violation of the diligent collaboration provided by the employee as a result of the disparity between the objectives set by the production programs and the achievements of the employee in the period of reference” (Supreme Court No 3876/2006).

The Court also clarified that the circumstance that the absences were justified (through doctor’s certificates) is irrelevant, since if they create serious organizational failures there is a subjective justified reason (“giustificato motivo soggettivo”) to terminate the employment contract, pursuant to Art. 3, Law No 604/66.