With judgment No. 8784 of 30 April 2015, the Court of Cassation again addressed the question of how paid leave is to be used by workers who care for family members with disabilities (governed by Article 33, paragraph 3, of Law No. 104 of 17 February 1992).
In the case brought before the Court, the worker (assigned to the night shift from 10 p.m. to 6 a.m.), after requesting a day of paid leave under Article 33, paragraph 3, of Law 104/1992 to care for his disabled mother, had spent much of the evening dancing at a village festival.
The Court’s examination mainly concerns the use of the leave provided for by Law 104/1992 for purposes other than those for which the legislature provided for these benefits.
Of particular importance is the principle stated by the judgment under review, according to which in the present case the removal of the requirements of “continuity” and “exclusivity” of care from the text of the provision appears wholly irrelevant for the purposes of the lawful use of the leave in question, since such removal does not authorise arbitrary use (and therefore use contra legem) of the benefits provided for by that provision and, consequently, does not legitimise the diversion of the typical function connected with the leave.
More precisely, the fact that “exclusivity” and “continuity” of care are no longer required for the granting of leave does not mean that it may lawfully be used in the absence of the requirements of “systematic nature” and “adequacy” of care, which continue to be conditiones sine quibus non for its grant.
The Supreme Court likewise held to be irrelevant the circumstance that the worker had used part of the leave to devote himself to caring for his disabled relative (after the dance evening, at about 1.30 a.m. the worker had in fact returned home, where he lived with his sick mother). The Court, in fact, in its reasoning started from the correct premise that: “the worker’s conduct would not be any less serious because he partly enjoyed himself and partly looked after his mother”, since the employee in any case availed himself of the right granted to him in part to satisfy personal needs and therefore needs different from those for which the right had been provided for by the legal system.
Therefore, following that reasoning, the Court concluded that: “the ground on which the decision is based is not the lack of proof that the mother was cared for during the remaining hours, but the use, as alleged in the disciplinary charge, of part of the leave in question for purposes other than those for which the leave was granted”.
In that context, the Court therefore held that the conduct alleged against the worker was certainly capable of amounting to an abuse of right; that conduct, in fact, implied “a social disvalue, since the worker had used leave for the care of disabled persons to satisfy his own personal needs, shifting the cost of those needs onto the entire community, because the leave is paid in advance by the employer, who is then reimbursed by the social security body”. Consequently, the judgment considered the imposition of the sanction of dismissal for just cause to be adequate and proportionate to the offence alleged, finding in the employee’s conduct behaviour such as to destroy definitively the relationship of trust and to cast doubt on the future correctness of the performance of the work, as well as of the contractual obligations, by the worker.
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