The use of permits pursuant to Law no. 104/1992 not in accordance with the rationale of the rule constitutes abuse of the right and undue receipt of the attendance allowance
Supreme Court of Cassation, Employment Section, Order no. 23434 of 26 October 2020
With Order No. 23434 of 26 October 2020, the Supreme Court of Cassation offers a broad review of the use and content of permits under Law No. 104/1992 (Article 33(3)), available to the worker who assists a disabled person in serious situations.
With regard to the purpose of the permits, the Judges remind us that the same are granted to the employee «for the purpose of assisting a disabled family member, not just in compensating the employee’s efforts in giving such assistance».
With reference to the content, according to the Court «it is necessary that the absence from work is directly related to the need for which the right itself is recognized, i.e. assisting the disabled person; this can be provided in different ways and forms, including through the performance of administrative, practical, or any kind of tasks, as long as it is in the interests of the family member assisted (see Cassation Ord. n. 23891 of 2018)».
The Judges then hone in on the consequences, if the use of permits is not consistent with the function provided by the legislator, confirming the orientation of the Court according to which «the conduct of the employee who does not make use of the permit provided for in Article 33, consistent with the purpose of the same, i.e. the assistance of the disabled family member, constitutes an abuse of the right, in that it deprives the employer of the performance of work, in breach of the trust placed in the employee and results in undue receipt of the allowance from the social security body ».
In the case in point, the Judges upheld the ruling of the Court of Appeal, which had found to be unlawful the disciplinary dismissal of the employee for abuse of the permits under Art 33(3) of Law. no 104 of 1992, «resulting – from the report of the investigative agency (commissioned by the employer) as well as witness evidence – that the worker had gone to his father’s home, (who was suffering from Alzheimer’s disease), for a number of hours well beyond those of his working hours (and anyway predominantly, excluding the training/information session at a University centre attended by the worker, on neurological patients)».
The Supreme Court rejected the employer’s appeal, pointing out that there had been no abuse of the right by the worker, who had assisted her father in a real and prevalent manner, although not exclusively and continuously.
In particular, according to the Court «even if the said training session attended by the worker was not considered ‘assistance in the broadest sense’ in any case it had not been proven that the worker had used the permits to carry out only or mainly activities in her own interests».