On January 28 2014 the Supreme Court issued Decision 1777, which concerned an employee's dismissal following disciplinary proceedings that took place during the employee's sick leave.

The employee was dismissed after receiving the employer's letter of reprimand while on sick leave. The employee objected to the Court of Appeal's interpretation of a provision of the collective agreement stating that dismissal proceedings must conclude within a 120-day period.

The Supreme Court took the occasion to underline the consolidated case law on the relationship between the employer's right of termination and the employee's right to sick leave.

Article 2110(2) of the Civil Code provides that in the case of an employee's illness, the employer can proceed with dismissal only after the so-called comporto period (ie, the protected period for illness or injury) – as set by the law or in collective agreements – has expired. Balancing the conflicting interests of the employer and the employee, lawmakers have recognised the need for employees to treat their illness without fear of losing their job and have granted appropriate protections, so the employer must bear the risks associated with the employee's illness.

In applying this principle, previous Supreme Court decisions have held as follows:

  • In the case of dismissals for just cause, the employee's sick leave cannot prevent termination. Actions that justify this type of dismissal constitute a serious breach of the employee's obligations, causing a breakdown of the trust and confidence essential to an employment relationship and thus providing due cause for immediate termination. As such, employees are afforded no job protection during absences for illness in cases of dismissal for just cause.
  • In the case of dismissals for justifiable reason, the condition of the employee's illness is doubly significant:
    • First, a dismissal communicated during the employee's absence for illness becomes effective only after the employee has recovered.
    • Second, if the illness occurs during the termination notice period, this period will be suspended until the employee has recovered.
  • A letter of reprimand issued during the employee's sick leave will likewise become effective only after the employee has recovered, so that the employee may exercise his or her right of defence.

In accordance with these principles, the Supreme Court held in the case at hand that the term established in the collective agreement for conclusion of dismissal proceedings started to run when the disciplinary warning took effect – that is, once the employee had recovered from his illness – because dismissal proceedings cannot take place during the employee's sick leave. Considering this, observance of the 120-day term established in the collective agreement was upheld.

For further information on this topic please contact Andrea Stanchiat Stanchi Studio Legale by telephone (+39 02 546 9522), fax (+39 02 551 91641) or email ([email protected]).