Snacks: Digestible Weekly Labour News – Issue 8912 January 2023

Absence for cancer treatment always excluded when calculating maximum sick leave allowance
Even if the relevant collective agreement covering an employment relationship does not explicitly exclude absences from work for cancer (oncological) treatment when calculating an employee’s maximum sick leave allowance, a strictly constitutionally reading of the law requires that such absences are always excluded from such calculations. This is so that the right to health guaranteed in Article 32 of the Italian constitution is satisfied. Based on these considerations, the dismissal of a concierge was annulled and they were entitled to reinstatement and a payment of nine months’ compensation.
Court of Rome, 02/01/2023 no. 9384

Gender equality certificate cannot be issued if mandatory parental leave not granted
A gender equality certificate cannot be issued to employers who violate the specific provisions of Legislative Decree 30.06.2022, no. 105 on work-life balance. This relates to those employers who prevented their employees from taking obligatory paternity leave (ten working days to a working father for each child, with 100% allowance) in the two years prior to requesting a certificate. The INPS expressly provides that, if an employer does not grant paternity leave as an alternative to the mother’s maternity leave, refusing them a gender equality certificate is added to any administrative penalty if the breach occurred in the past two years. Other instances where a certificate cannot be issued include cases where a three-day paid leave for the death or documented illness of an employee’s the spouse (or co-habiting partner) is not given and the two-year unpaid leave for serious family reasons is not recognised.
INL, Note 06/12/2022 no. 2414

Damages for unlawful dismissal due even if dismissal ultimately does not occur
Damages for unlawful dismissal are due even in instances where the employer ultimately decides not to terminate the employment relationship despite having already communicated the dismissal. In a recent example at the Supreme Court, such a dismissal was revoked by the judge and payment for damages was ordered. The Court noted that the dismissal is legally effective with receipt of a letter of dismissal (the communication) by the employee and this is sufficient for claiming damages. The fact that the termination was ultimately not adopted is irrelevant.
Supreme Court 30/12/2022 No. 38183

On reinstatement employee has the right to perform same tasks as before dismissal
A judgment ordering the reinstatement of a civil servant unlawfully dismissed from their workplace held that the employee has a right to be reinstated in the same capacity and role that they previously held. It is irrelevant that, in the meantime, the role and duties held by the dismissed employee have been assigned to another employee. Failure to reinstate the employee in the same capacity as before their dismissal constitutes non-compliance by the employer. In this particular case, the employee’s request to be reinstated must be granted.
Supreme Court, (ord.) 17/12/2022 no. 37040

Telephone taps collected during preliminary investigations lawful
Telephone taps obtained in preliminary investigations may be used as the basis for disciplinary measures if they reveal that an employee’s conduct was inappropriate. It is irrelevant whether or not the phone interceptions pass the scrutiny required in a criminal trial, since an employment judge may base their judgment on information collected in preliminary investigations. The only condition to be fulfilled for telephone taps to be used in disciplinary proceedings pursuant to Article 7 of the Workers’ Statute is verifying that they were carried out in compliance with constitutional and procedural rules.
Supreme Court, (ord.) 15/12/2022 no. 36861