Employee dismissed for working at spouse's shop during sick leave

Published on Sole24Ore – Nt Lavoro – on 02/02/2024

An employee who, while on sick leave, works the spouse's shop is liable to dismissal if such conduct constitutes a breach of the general duties of fairness and good faith and of the specific contractual duties of diligence and loyalty. This applies both when the conduct suggests the non-existence of the illness and when it may prejudice or delay its healing or the return to work.

Court of Cassation, Judgment no. 2516 of 26 January 2024.

In the present case, an employee was dismissed for just cause because, while on sick leave for a week, he had worked for his spouse for 2 days. The conduct had been discovered through the investigations ordered by the employer.

The Court of Appeal, confirming the decision of the Tribunal, rejected the appeal. According to the Court of Appeal, in fact, the employee’s conduct was potentially liable to delay the illness healing. Therefore, the disciplinary charge grounding the dismissal was founded.

The Supreme Court confirmed the previous decision of Tribunal and Court of Appeal. Firstly, the Supreme Court pointed out that with regard to dismissal for just cause and for justified reason, the assessment of the seriousness and proportionality of the conduct must be made having regard to the concrete elements of the case.

Secondly, the Supreme Court, recalling its previous decisions, reiterates that the performance of other work activity by the employee who is on sick leave, constitutes a breach of the contractual obligations of diligence and loyalty as well as of the general duties of fairness and good faith. This applies both when the conduct suggests the non-existence of the illness, and in the event that such activity, assessed in relation to the nature of the illness and the duties performed, may prejudice or delay its healing or the return to work.

According to the Court, therefore, the decision of the Court of Appeal was in accordance with the above principle. Indeed, the Court of appeal, after having considered the work performed for a third party by the employee while on sick leave, as potentially liable of delay its healing, held that this potentiality was prejudicial and contrary to the employee’s general duties.