ITA 
Published on Sole24Ore – NT Lavoro – on 15/03/2023
The case of the Court of Cassation’s judgment no. 7306 of 13 March 2023, originates from the dismissal for just cause imposed to an employee who used the permits 104, also for a use different to that provided for by the law.
Specifically, the investigation had revealed that on the days of leave the employee had also devoted himself to reading books at public gardens during hours corresponding to work hours, a circumstance noted on two occasions and always for about two hours.
Genova Court of Appeal, confirming the Court of first instance’s judgment, declared unlawful the dismissal, because the employee demonstrated that he had provided the aid to his parents, anyway.
So, the time break not dedicated to the aid purpose had to be evaluated not important.
The employer appealed to the Court of Cassation claiming that the absence at work should have be with the aid purpose, for which it was allowed and that the judgment of proportionality between time-serving and time-wasting should have been made with regard to working time and not the entire 24-hour day.
The Court, addressed by the question, rejected the employer’s appeal, analyzing the principles which ruled the use of those permits.
Recalling the Constitutional Court’s judgment no. 213/2016, the Court of Cassation clarified that permit to assist disabled relatives is an expression of the social state, which provides a benefit in an indirect form with the ratio of ensuring as a priority a continuity in the care and assistance of the disabled person that takes place in the family environment.
In this context, the judges pointed out, the connection that the regulatory text makes is not strictly temporal - between the use of the leave and care during working hours - but functional. Consequently, it is necessary to assess the manner and time in which the assistance is provided because of the purposes for which the permits are granted, consisting of the protection of persons with disabilities.
The causal link, therefore, between taking leave and caring for the disabled person must be understood not in the sense of requiring the employee to sacrifice his or her personal needs, but as a "clear and unequivocal functionalization of the time freed from the obligation to work to the preeminent satisfaction of the disabled person's needs"
Applying the above principles and excluding a use of permits as a "merely compensatory" function for the energy expended by the worker in caring for relatives with disabilities during extra-work hours, for the Supreme Court it is up to the judge of merit to determine on a case-by-case basis whether the function of the preeminent need for the protection of persons with disabilities can be considered fulfilled, even when a residual reconciliation with other personal duties is safeguarded.
Therefore, there is no abuse of right, nor violation of the obligations of fairness and good faith when, as in the present case, the employee on permit performed the care work at a time and in a manner that pre-eminently met the needs of disabled relatives, although without abdicating personal needs and regardless of the time placement of such care.