Also in the vertical part-time employment relationship it must be taken into account, for the purpose of calculating the illness protected period (i.e. the period of absence from work, for illness or injury, during which the employee cannot be dismissed), the non-working days falling in the period of absence, assuming the continuity of the illness.
Tribunal of Rome, order of July 18, 2021
The case originates from the dismissal for exceeding the illness protected period, served to an employee hired with a vertical part-time employment contract that provided for three working days per week, from Thursday to Saturday.
The National Collective Bargaining Agreement (Tertiary Sector) applied to the employment relationship in question provides, for vertical part-time workers, an illness protected period equal to ” half the working days agreed by the parties in a calendar year”. By virtue of the three working days per week agreed upon, the company calculated the illness protected period as 78 days, and after such period the employee was dismissed.
In particular, the employee had been continuously absent for over three months, submitting 16 illness certificates relating to the same illness, on the basis of which each individual sick leave began on Thursday and ended on Saturday, exactly the agreed working days of each week.
Consequently, the company included in the calculation of the illness protected period not only the days of sick leave actually resulting from the medical certificates, but also the non-working days falling in the period of absence between one period of sick leave and the next, presuming the continuity of the sick episode.
On the basis of a well-established Case law orientation, in fact, “the period of sick leave also includes non-working days and intermediate absences of the worker between one sick leave and the next, since it must be presumed, unless the employee proves the contrary, the continuity of the sick episode“.
The employee challenged the dismissal in Court claiming that the Company, for the purposes to calculated the illness protected period, had to consider only the days of sick leave (from Thursday to Saturday) and not also the non-working days falling from one sick leave to the next, also considering that those 16 medical certificates had a precise starting date and termination date, therefore it was not a continuous desease.
The judge, taking a different view, rejected the employee’s claims and fully accepted with the company’s defenses.
First of all, the Judge pointed out that all the certificates produced were issued for the same pathology, so “it is not reasonable to believe that 16 sickness certificates can be related to 16 different traumatic events, especially considering that the pathology reported is essentially always the same“.
In addition, the judge referred to Case law principle of continuity of the illness event unless the employee proves otherwise, thus considering that “correctly the company included in the basis of calculation of the illness protected period also non-working days and holidays since the employee has never returned to work between a certificate and another and has never attached and / or proved to have suffered several illness events one distinct from the other with different etiology“.