“The employee on sick leave is entitled to apply for the accrued and unused vacation leave, for the purpose of interrupt the illness protected period, since there is no incompatibility between illness and vacation leave. However, this right does not imply an obligation for the employer to accept the request. The employer may refuse, if there are adverse organizational reasons. The reasons must be concrete and effective”.
Thus, the Court of Cassation with its judgment no. n. 26997 of 21 September 2023.
The case originates from the dismissal of an employee for exceeding the illness protected period. Both in first and in second grade the dismissal has been considered unlawful.
The Court of Appeal noted that, before the termination of the illness protected period, the employee asked to the employer to use the accrued vacation leave. In the same message the employee anticipated that, after the use of vacation leave, she would ask also for an unpaid leave.
The employer accepted the employee’s request of unpaid leave but refused that one of use of vacation leave.
The Court of Appeal, confirming the first instance judgment, held that the refusal to grant leave was unfounded and confirmed the unlawfulness of the dismissal ordered before the termination of the illness protected period.
The employer appealed in Cassation.
The Court of Cassation, in rejecting the claim, reaffirmed its own ruling according to which it is the employee's right to request to take vacation in order to suspend the accrual of the illness protected period, since there is no absolute incompatibility between illness and vacation. However, this entitlement of the employee does not correspond to an obligation of the employer to accept the request if there are organisational reasons justifying the refusal, given that such employer reasons must be concrete and effective.
The Court continues specifying that, anyway:"the employee on sick leave is not unconditionally entitled to substitute sick leave for vacation leave, as the reason for the absence, for the purpose of interrupting the running of the illness protected period. However, the employer who receives this request, in exercising the power to establish the temporal placement of vacations (pursuant to art. 2109, paragraph 2, Civ. Cod.), balancing his needs with the employee's interests, is obliged to a consideration and evaluation appropriate to the position of the employee who may lose the job with the expiration of the illness protected period. The employer is not subject to this obligation when the social parties have provided for a period of unpaid leave of absence that allows the employee not to lose the job, for exceeding the illness protected period”.