Court of Cassation with Judgement No. 15952 of June 8, 2021
A top-level manager who, despite having the power to decide freely when to take holidays, does not use up his/her annual leave, is not entitled to indemnity in lieu unless he/she can show that they did not go on holiday due to exceptional objective business needs.
With this order the Court of Cassation first of all notes how the prohibition of monetizing vacations provided for by Directive 93/104/EC, later merged into Directive 2003/88/EC, and transposed into local law by Legislative Decree no. 66 of 2003, art. 10,(2) “is clearly aimed at ensuring the effective enjoyment of vacation, which would be frustrated if it were to be replaced with an allowance, the provision of which cannot be considered equivalent to the necessary protection of health and safety, as it does not allow the worker to recharge his mental and physical energy”.
It therefore follows that “the exception to the principle, provided in the second part of the provisions referred to above, operates only within the limits of accrued and unused holidays at the time of termination of employment, and does not allow the monetization of accrued holidays in previous years, because with respect to these the employer had to ensure the effective use; a different interpretation would end up making the general rule inoperative, resulting in the provision of an indiscriminate pecuniary convertibility of the right, even if deferred to the time of termination of the relationship”.
This does not mean “that the worker, to whom the enjoyment of the vacation was not in fact guaranteed, remains without protection, because both during the relationship and on termination, the employee may invoke his/her civil rights and rely on the failure of the employer who has violated the mandatory rules mentioned above and has not allowed him/her to recharge physically and mentally”.
However, concludes the Court of Cassation “the failure must be attributable to the party against whom there is an action for damages and therefore it is necessary that the failure to go on holiday is derived from actions attributable to the same employer”.
And so “this requirement does not occur in the event that the employee, holding a top position in the company and having the power to allocate holidays freely, without any conditioning by the owner of the company, does not exercise the entitlement. In that case, in fact, except for unforeseeable and undeferrable business needs, the failure to use up holidays is due to the choice of the manager, which excludes the possibility of a culpable breach by the employer”.
Finally, with regard to the burden of proof,“pursuant to art. 2697 cpv. c.c. the manager’s power to choose by himself how and when to take holidays is an exception to be raised and proved by the employer, while the existence of absolutely exceptional and objective business needs ,inhibiting use of such vacation time, needs to be proved by the manager (Cass. 14.3.2016 n. 4920)”.