Published on Sole24Ore – NT Lavoro – on 22/02/2023
The Court of Cassation, in its judgment 5288/2023 of 20 February, upholding an appeal for revocation based on Article 391-bis of the Code of Civil Procedure, provided a complete examination of the provisions of the NCBA of the tertiary sector on the protected period, in the sense of considering a protected period by summation, without prejudice to the autonomy of the separate periods of absence for illness and accident.
A worker was absent from work due to illness in two separate periods - respectively of 109 and 124 days - and was dismissed for exceeding the protected period. The Court of Appeal ruled that the measure was unlawful, interpreting the provisions of the NCBA of the tertiary sector as providing for a spell of 180 days in a row.
The Court of Cassation upheld the territorial court's interpretation of the combined provisions of Articles 175 and 177 of the NCBA of the tertiary sector, according to which, if an accident succeeds an illness, even without a break, a new and separate protected period of 180 days begins to run and only on its expiry can dismissal for the exceed protected period be made.
The company appealed against the decision of the Court of Cassation pursuant to Article 391-bis of the Code of Civil Procedure, in relation to the hypothesis provided by Article 395, number 4 of the same Code, pointing out that in the specific case the existence of episodes of illness and accident was incontrovertibly excluded. The worker, in fact, had been absent in two separate periods, for a total of more than 180 days, always due to illness.
The Court Cassation upheld the appeal, reminding that an appeal for revision of judgments of the Court of Cassation is allowed in the hypothesis of an error made in the reading of the acts internal to the judgment of legitimacy, which presupposes the existence of divergent representations of the same object, one emerging from the judgment and the other from the acts and documents of the case (Court of Cassation, Judgment no. 31032/2019) and is such as to have led the judge to base his assessment of the procedural situation on the supposed existence (or non-existence) of a fact, which was instead excluded (or acquired) in the reality of the trial.
In this case, it was incontrovertible from the court documents that the employee had taken two separate periods of absence, both for illness. Therefore, the Court of Cassation had rejected the company's appeal on the erroneous factual assumption that the absences had taken place first because of an accident and then because of illness.
With reference to the correct interpretation of the provisions of the NCBA of the tertiary sector on the protected period, the Court of Cassation refers to the text of the provisions cited, whereby in the event of illness the worker is entitled to keep his job 'for a maximum period of 180 days in the calendar year' (Article 175) and the same rules also apply to absences due to accident (Article 177). The statement in the minutes at the end of Article 177 further provides that, for the purposes of reaching the maximum period of job retention, the periods of time off for illness and accident are separate, each lasting 180 days.
For the Supreme Court, there is no doubt that the NCBA provides the possibility of exceeding the protected period by summation of distinct periods of illness: in this regard, the provision makes no reference to the consecutive or uninterrupted nature of the absences and the use of the singular in relation to “period” contradicts the possibility of considering the preservation of employment to be permitted in the face of several periods of absence in the calendar year, each of 180 days.
Lastly, recalling its own well-established orientation, the Court notes how the temporal reference to the calendar year clearly shows the intention of the social parties not to limit the protected period to a single morbid event, "given that for this purpose it would have been sufficient to establish that the illness should not have exceeded 180 days" (Court of Cassation 1973/1984).