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21.092020

Carrying out another activity during sick leave may justify dismissal

The Supreme Court of Cassation, in its ordinance No. 18245 of 2 September 2020, upheld the principle that carrying out a working or non-working activity while absent from work due to illness may constitute a serious breach of the worker’s contractual obligations, if it compromises or delays the recovery.

The facts

The case originates from a legal action taken by an employee against his dismissal for just cause by his employer, in which he claimed the right to be reinstated in his job and also to receive compensation for loss.

The lower court and subsequently the Court of Appeal with territorial competence ascertained that the worker – unable to work for three days due to “acute dermatitis of the hands” – worked at his wife’s pastry shop during his days of absence from work. Among other duties, he washed dishes and prepared coffee, thereby exposing his hands to heat sources.

In the lower court’s view, the worker had violated obligations of honesty and good faith which apply during the illness period, whose purpose is to ensure the worker’s prompt recovery and restoration of his/her energies which can then be made available to the employer.

The worker appealed to the Supreme Court of Cassation.

The Supreme Court of Cassation’s ruling

The Supreme Court of Cassation, rejecting the worker’s appeal, confirmed the appropriateness of the allegation against him for disciplinary purposes. This is because its purpose was “not so much to challenge the lack of justification for his absence from work, but rather to sanction the worker’s deliberate abnegation of his work obligations and of his contractual obligations in general”.

This conclusion, continues the Supreme Court of Cassation, is “in line with the consistent case law of this Court in the field, according to which the employee’s performance of other work activities while ill infringes the specific contractual obligations of diligence and loyalty, and also the general duties of honesty and good faith, and also if such external activity tends towards the presumption that the illness is feigned, and also where the same activity – examined from an “ex ante” point of view in relation to the nature of the pathology and of the worker’s job duties – could compromise or delay the worker’s recovery or return to service” (see, among others, Supreme Court of Cassation  19.10.2018, no. 26496, Supreme Court of Cassation 27.4.2017, no. 1041).

According to the Supreme Court of Cassation, “if a worker performs working or non-working activities while ill, this can entitle the employer to withdraw from the employment contract (only) if it transpires that the activity in question is indicative of a careless attitude on the part of the worker to his or her health and to the obligation to look after it, and to get better without delay.”

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This judgment, accordingly, concludes that if an employee on sick leave carries out a working or non-working activity, this can entitle the employer to withdraw from the employment contract based on the infringement of the general duties of honesty and good faith and the specific contractual duties of diligence and loyalty, if the activity in question aggravates the illness as well as the healing time and delays the return to work.