Even in the presence of an infringement punished by the applicable collective bargaining agreement with dismissal, the judge must assess the suitability of the specific conduct to compromise the fiduciary link between employer and employee, in the absence of which the dismissal is unlawful. Thus, the Supreme Court ruled that the dismissal of an employee, with the duties of cashier - who ate without paying a snack taken from the dispenser adjacent to the workstation - is unlawful, since such employee conduct is not suitable to compromise the fiduciary link and in any case the dismissal would not be a measure proportionate to the conduct in question (see Supreme Court’s decision dated May 27, 2022, No. 17288).
Handicap and Illness
The Court of Milan has recently come to the conclusion that it constitutes indirect discrimination to calculate in the period of illness the absences of the disabled person due to the handicap.
The Court, relying on the predominant case law of the European Court of Justice, clarified how the notion of handicap should be understood as a limit that derives, in particular, from physical, mental and psychological disabilities and which hinders the participation of the person in question in his/her professional life, so that using the notion of "handicap" the European legislator (Directive 2000/78/EC) has deliberately chosen a different term from that of "illness".
Starting from this consideration, the European Court of Justice therefore excluded a pure and simple assimilation of the two notions, specifying that in order for a limitation to fall within the notion of "handicap" it must therefore be probable that it is of long duration and which has the aptitude to the professional life for a long period (Court of Justice, Navas vs. Eurest Colectivadades SA, C-13/05).
The Court therefore held that - for the purposes of calculating the sick leave period and therefore calculating the expiration of the so-called “periodo di comporto” (during with the employee absent for illness cannot be dismissed) - the calculation of the sick leave related to the specific condition of disability constitutes indirect discrimination (see Court of Milan’s decision dated 2 May 2022).
Absence from work without providing any justification, to induce the employer to adopt dismissal for unjustified absence, thus allowing the employee to benefit from the unemployment allowance (NASPI), is unfair behavior which should be considered as implicit resignation (see Court of Udine’s decision dated May 27, 2022).
Avv. Guido Brocchieri
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