Published on Sole24Ore - NT Lavoro - on 19/10/2022
An employee was dismissed for unjustified absence because, at the end of a continuous illness leave of more than sixty days, she had prolonged her absence without providing justification, while waiting for a medical suitability examination. Pursuant to the employee, the absence following the illness should have been considered justified regardlessof the submission of medical certificates, given the failure to call for a medical examination of suitability for work to be carried out «at the employer’s expenses».
The Court of merit rejected the employee’s appeal, noting that the company could not have activated the competent doctor’s inspection in the absence of the employee.
The Court of cassation, with its judgment no. 29756/2022 of 12 October, confirmed the Court of Appeal’s judgment, highlighting how, pursuant to Article 41, D.lgs. 81/2008, the employee may not extend his absence pending the employer’s initiative to carry out the medical examination of suitability, being obliged to report to work at the end of the illness.
In fact, as already noted by the jurisprudence of legitimacy, the purpose of the medical examination of suitability is to protect the worker’s safety and health, so it must precede the assignment to the tasks previously performed. In the absence of a summons to a medical examination, therefore, the employee may legitimately abstain from performing such tasks, pursuant to Article 1460 of the Civil Code, but is not authorised to be absent to the workplace. While awaiting the visit, the employer could well arrange for a possible and temporary different placement of the worker in the company (Court of Cassation, judgment no. 7566/2022).
In the specific case, therefore, the employee’s absence pending summons to a medical examination for suitability is to be considered unjustified, with the consequent existence of the prerequisite of just cause for dismissal.