In the case of dismissal for exceeding the period of sick leave, adjudicating on the promptness of the withdrawal cannot be achieved on strictly applying predetermined chronological criteria, but requires a fair assessment that the judge must make on a case-by-case basis

Court of Cassation, Employment Section, Order No. 18960 of September 11, 2020

The case originates from the dismissal of an employee for exceeding the period of sick leave, served months after said period had been used up, once the worker had returned to work, without asking for additional sick leave and alternating periods of service and periods of illness.
While the Court in first instance found in favour of the employee, the Court of Appeal recognized the full legitimacy of the dismissal, due to exceeding the period of sick leave and the absence of any defect of late nortice. In this regard, the Court of Appeal noted that the time that had elapsed between using up all the sick leave and serving the dismissal was justified by the employer’s willingness to verify the compatibility of the disease with the continuing to work, also pointing out that the spatium deliberandi was not excessive because the dismissal was carried out one week after the employee’s return to work from the final period of sick leave.
The worker appealed to the Supreme Court to have the dismissal declared illegitimate, in that the employer’s conduct (late notice) should be interpreted as a waiver of the right to dismiss. In addition, the worker complained about the lack of fairness and good faith of the company for not having previously warned the worker of the imminent expiry of the sick leave period.

The Court of Cassation rejected the applicant’s claims.
With reference to timeliness, following its well-established orientation, the Court reiterated that «the requirement of timeliness cannot be resolved in a fixed and predetermined chronological order, but is the subject of an assessment of fairness, not subject to review by the Court of Cassation if adequately justified, which the judge on the merits must apply on a case-by-case basis, with reference to the entire context of the circumstances».
The burden of proof is on the employee to show that the time lapse between exceeding the period of sick leave and the dismissal has exceeded the limits of adequacy and reasonableness, to the point of believing the existence of an implied willingness of the employer to waive the right to terminate the relationship: «Unlike a disciplinary dismissal, which assumes the immediacy of withdrawal to guarantee the fullness of the right of defense, in dismissal for exceeding the period of sick leave, the worker’s interest in the certainty of the contractual relationship must be balanced with that of the employer to have a reasonable spatium deliberandi, in which to conveniently assess the sequence of events, for the purposes of a prognosis of sustainability of his absences in relation to corporate interests. In this case, the judgement on the timeliness of withdrawal cannot be achieved by the strict application of pre-established chronological criteria, but constitutes an assessment of appropriateness that the judge must make on a case-by-case basis, appraising every significant circumstance in this regard (see Court of Cassation 12/10/2018 no. 25535 and also Court of Cassation 28/03/2011 no. 7037)».
According to the Supreme Court, even the employer’s failure to warn is irrelevant to the legitimacy of the dismissal, in the absence of a contractual obligation on the part of the employer: «therefore, the lack of knowledge by the employee of the said limits of sick leave, where, as in the present case, there is no contractual obligation on the employer in this sense, does not constitute a breach by the employer of the principles of fairness and good faith in the failure to notify the employee of the approaching overrun of the period, as this communication would actually serve to enable the employee to take action, such as requesting holidays, or unpaid leave, and thereby eluding the assessment of his unfitness to fulfill the obligation».