ITA 
Published on Sole24Ore – Nt Lavoro – on 31/01/2024
The performance of work activity for third parties during the sick leave constitutes a tort of peril and not of harm. This applies not only when such activity actually caused a temporary impossibility to return to work, but also when the return to work was endangered, i.e. when the employee behaved imprudently. Court of Cassation, judgment no. 1472 of 15 January 2024.
The Court of Appeal of Rome, confirming the decision of the Tribunal, rejected the appeal of an employee dismissed for having worked for a different employer while on sick leave. In the present case the employee had been seen waiting on customers in a pizza restaurant while on sick leave due to lumbago. According to the Court of Appeal, this conduct was such that it seriously damaged the bond of trust with the employer, because it showed a lack of fairness and good faith and violated the employee’s duties of care and prompt healing.
The employee appealed in Cassation, claiming that she immediately returned at work at the end of the sick leave.
The Court of Cassation rejected the appeal. According to the Court, in fact: the employee must refrain from conduct that may harm the employer’s interest in the correct performance of the contract. The right to abstain from work due to illness is protected by contractual and law provisions to the extent that it is non attributable to the voluntary conduct of the employee who adopts choices liable to prejudice the employer’s interest (Court of Cassation no. 1699/2011).
In this perspective, the breach of the duty to observe all precautions prescribed by the doctor is relevant.
Lastly, the Court of Cassation recalls that the assessment as to the effect on the healing of the other work has as its object the potentiality of the damage. It follows that, for the purposes of this potentiality, the prompt return to work is irrelevant.