New rulings of the Italian Supreme Court on Dismissal of an executive and “periodo di comporto”
Dismissal of an executive
The Supreme Court affirmed that the dismissal imposed on a manager who tries to purchase a stake in the share capital of a competing company is legitimate, given that such conduct is potentially harmful to the employer company.
In fact, the employee's duty of loyalty must be integrated with the principle of correctness and good faith and, to this end, also the mere potential harmful conduct assumes relevance.
The Supreme Court reached the conclusion that such duty has even more importance in the case of an executive. This is in relation to possible negative impact on the image of the company and for the objective danger of emulative conduct by other employees.
According to the Supreme Court, therefore, by virtue of the duty of loyalty, an executive must refrain from any activity capable of causing damage to the employer company (Supreme Court’s decision No. 11172 dated April 6, 2022).
Dismissal due to the overcoming of the so-called “periodo di comporto”, i.e., the period during which the employee, absent from work for illness, cannot be dismissed
The Supreme Court affirmed that, in the event of dismissal for the overcoming of the “periodo di comporto” by summation (“sommatoria”), absences not indicated in the dismissal letter cannot be taken into account.
With regard to the dismissal for the overcoming of the “periodo di comporto”, the employer does not have to specify the individual days of absence, since more comprehensive indications may be considered sufficient, without prejudice to the burden of demonstrating and fully proving in court the facts constituting the exercised power. However, this principle applies to the “periodo di comporto” characterized by a single uninterrupted period of illness), where the days of absence can also be easily calculated by the employee. On the contrary, in the “periodo di comporto” by summation (multiple and fragmented absences) a specific indication of the counted absences is required, in order to allow the employee to elaborate appropriate defenses.
In this latter case, the general rule of the unchangeability of the reasons communicated as a reason for dismissal applies, with the consequence that, for the purpose of the overcoming of the “periodo di comporto”, absences not specifically indicated in the dismissal letter cannot be taken into account (Supreme Court’s decision No. 8628 dated March 16, 2022).
Avv. Guido Brocchieri
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