As well Known, under Italian Law, during a period of illness, employees are entitled to maintain their posts for the so-called “period of grace” regulated by National Collective Bargaining Agreement.
The purpose of Article 2110, paragraph 2 of Italian Civil Code is to ensure the employee a reasonable period of sickness leave, without negative consequences to the employment relationship.
For this reason, pursuant to the provision mentioned above, only once the “grace period” has run, the employer is entitled to terminate the employment relationship.
The Joined Chambers of the Court of Cassation, 22 May 2018, n. 12568, put an end to a wide case law contrast concerning the type of “invalidity” characterizing the dismissal ordered before the expiry of the “period of grace”.
According to a first case law interpretation, the mentioned dismissal had to be considered temporarily “ineffective” until the overcoming of the “period of grace”.
On the contrary, another case law approach defined “null” the dismissal ordered without waiting for the exceeding of the maximum period of tolerance provided for by NCBA.
In the Supreme Court’s interpretation, recognizing the lawfulness of this type of dismissal (although temporarily “ineffective”) would mean allowing an autonomous case of “a-causal” dismissal outside the hypotheses provided for by current legislation (just cause, objective or subjective justified reason).
Furthermore, the same dismissal would constitute a violation of Article 32 of Italian Constitution, which provides an imperative principle of protection for employee’s health: the employee has to take advantage of necessary medical care without fearing the loss of his/her job.
On the other hand, the Supreme Court re- called the mandatory nature of Art 2110, paragraph 2 of the Italian Civil Code, therefore the overcoming of the period of grace shall exist at the moment of the dismissal.
The Joined Chambers, after the analysis of the different positions above mentioned, held that the dismissal ordered before the overcoming of the “period of grace” shall be considered ab origine null and void for the reasons explained above.