ITA 
Published on Sole24Ore – NT Lavoro – on 11/10/2022
The case, subject of the Court of Cassation’s judgment no. 29113/2022 of 6 October originates from a public manager’s appeal following the refusal by the local Health Authority to pay her, on termination of her employment, the indemnity in lieu of leave accrued over the last 15 months, which was not granted due to «service necessity».
Both the Court of first instance and the Court of Appeal rejected the manager’s claims, arguing that she had not proved that the failure to take leave was due to service requirements, nor what were specific reasons for the accumulation of those days. The manager appealed to the Court of Cassation, arguing that the judges on the merits had attributed to her burdens of proof that were not hers, since it was not disputed that the leave period for which monetisation was claimed had not been taken and that the employment had terminated.
The court of Cassation considers the ground of appeal to be “manifestly well-founded”, recalling the consolidated legitimacy case-law on the point and noting the decisive influence deployed on the subject by European Union legislation. The Court recalls the CGUE’s Max-Planck judgment of 2018, according to which European legislation (Article 7 of Directive 2003/88/EC and Article 31 (2) of the Charter of Fundamental Rights of the European Union) must be interpreted as precluding national legislation under which an employee automatically forfeits his right to take annual leave if he has not requested it during the reference period, regardless of whether he has been placed by his employer in a position to actually exercise that right.
This orientation is coordinated with the ruling of the Constitutional Court of Article 5 (8), of Decree-Law 95/2012, a provision referred to in the Health Authority’s defence, according to which, in the context of public employment, holidays, rest and leave cannot be “under any circumstance” monetised. According to the Constitutional Court, in fact, this provision is not constitutionally illegitimate as it must be interpreted in the sense that the loss of the right to monetisation cannot occur when the non-use of holidays is not attributable to any fault, not only because it is due to unforeseeable events not due to the emoloyee’s will, but also whent it is the «organisational capacity of the employer» that is called into question (Constitutional Court 95/2016).
Recalling its well-established orientation, the Supreme Court remind that, upon termination of the relationship, the public manager is entitled to allowance in lieu of leave not taken, unless «the employer proves that it has put him in a position to exercise the right in question before such termination, by means of adequate information and, where appropriate, by formally inviting him to do so» (Court of Cassation’s judgment no. 13613/2020). Lastly, neither does the public manager’s power to organise independently the taking of his leave exclude the right, unless the employer proves that he formally invited the manager to take his leave and that he ensured that the organisation of work and the needs of the service to which the manager was assigned were not such as to prevent the manager from taking his leave (Court of Cassation 18140/2022).