PUBLISHED BY Arlati Ghislandi
TAG: , sickness
Dismissal for exceeding the ‘protected’ period
19
Sep
2018

The act of dismissal for exceeding the protected period (i.e. period of time during which a sick worker cannot be dismissed) does not necessarily have to contain a complete and detailed description of each period of absence of the worker due to illness, but must still contain indications such as to allow a clear identification of the specific reason for dismissal.

 

With order no. 21042 of 23 August 2018, the Court of Cassation has confirmed a firm jurisprudential orientation regarding dismissal for exceeding the protected period.

 

As is evident, the dismissal for exceeding the protected period cannot lead to a disciplinary dismissal. In fact, it is inaccurate to sustain that absences attributable to a worker’s state of illness, and that exceed the protected period, are ‘contested’ by the employer who proceeds with dismissal.

 

In order to deploy its typical legal effects, the act of dismissal for exceeding the protected period does not necessarily have to contain a complete and detailed description of each protected period, ‘since more general indications can be considered sufficient, which are suitable to highlight an exceeding of the protected period in relation to the applicable contractual discipline, such as indication of the total number of absences occurring in a given period, without prejudice to the burden, in any court, to attach and prove, in full, the facts constituting the power exercised’ (Court of Cassation, sentence no. 21377 of 24 October 2016).

 

With the order in question, the Supreme Court confirmed the principle that the ‘employer does not have to specify the single days of absence in the notice, but the act of dismissal must not be limited to indicating only the end date of the protected period, as this does not satisfy the requirement of sufficient specification of the reasons for dismissal under article 2, paragraph 2 of Law of 15 July 1966, according to which ‘the notice of dismissal must specify the reasons that led to said dismissal’.