Working during extraordinary leave – lawful dismissal (Andrea Di Nino, Sintesi – Ordine dei Consulenti del Lavoro, September 2022)

28 September 2022

With ruling no. 21773 of 8 July 2022, the Court of Cassation explained the legitimacy of the dismissal for just cause of an employee caught working at the shop owned by her partner during extraordinary leave. The partner was another company employee.

In the second instance, the Court of Appeal of Bologna rejected the complaint brought by the worker, confirming the first instance ruling which rejected her appeal against the dismissal for just cause. The August 2016 dismissal was issued due to the employee working in the shop owned by her partner during extraordinary leave granted to her to assist her severely disabled daughter, under Art. 42, paragraph 5, Legislative Decree 151/2001.

The employee was caught by a private detective, appointed by the employer company investigating her partner, who was also a company employee. The partner was caught working in the same shop, which he owned, during an illness absence.

Following the dismissal and against the rulings of the first two instances, the worker appealed to the Court of Cassation on various grounds.

The employee stated that the burden of proof’s subject for the dismissal’s just cause, which the ruling under appeal considered as fulfilled by the employer, was not identified. The worker complained that the Court of Appeal had a poor critical approach to the various pieces of evidence collected by the employer. She stated that the Court of Appeal accepted “without the necessary critical analysis investigation reports, photos and films, and statements made by the investigators examined as witnesses, without noting their contradictions.

In the third instance, the Supreme Court held that the grounds advanced by the employee were inadmissible and rejected the appeal. The Court stated that the second instance Court did not consider the above elements as fully probative but assessed them “together with the other evidence “, as suitable for demonstrating the conduct alleged against the worker by dismissing her.

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