_Sick employee dismissed when the employer is not notified

Sick employee dismissed when the employer is not notified

by Andrea Savoia and Silvia Fumagalli


According to the Court of Cassation (Court ruling no. 26465, dated 8th November 2017), it is lawful to dismiss the employee who does not inform the employer of his absence for sickness and does not send the doctor certificate by the deadlines provided by the National Collective Bargaining Agreement. In such a case, even if the sickness is actual and proved, the absence shall be considered as unjustified.

The case

The employee was dismissed with notice for unjustified absence from August 27th, 2011 to September 9th, 2011 and challenged the dismissal in Court. The first instance ruling, in favour of the employee, was reformed by the Court of Appeal of Perugia that confirmed the dismissal was lawful.

The employee filed a claim before the Court of Cassation, that rejected all employee’s claims and confirmed the decision of the Court of Appeal.

Court ruling’s reasons

The case filed before the Court of Cassation concerns an employee who, after being on sick leave from August 22nd to August 27th, 2011, was considered able come back to work by the occupational doctor of the Italian social security institute (INPS), and yet remained home (until September 9th, 2011), without alerting the employer nor sending the medical certificate.

As a consequence, the employee was dismissed for unjustified absence.

While the Tribunal in first instance accepted the employee’s claim, the Court of Appeal of Perugia overturned the decision, stating that the Tribunal wrongly construed the provisions of the NCBA applied to the employment.

The dismissal is lawful according to the Court of Appeal, because the NCBA applied to the employment states that, in case of absence for sickness, the employee shall alert the employer and send the related documents (unless lawful impossibility to do that) within the deadlines, otherwise the absence is considered as unjustified, despite the actual sickness.

The Court of Cassation confirmed the above interpretation of the provisions of the NCBA applied to the employment.

According to the Court of Cassation, the NCBA applied to the employment does not provide just a theoretical definition of the “unjustified absence”, instead it clearly states that the absence is unjustified whenever the employee does not alert the employer and does not send him the related documents (unless lawful impossibility), regardless of the fact that the sickness is true or not.

In particular, the Court of Cassation stated “the absence is unjustified when the employee does not comply with the obligations required to him/her, and this make the absence unjustified regardless of the sickness”.

Furthermore, the Court of Cassation rejected the employee’s claim related to the nature of the sanction.

According to the employee, the sanction should be a conservative one instead of the dismissal, but the Court of Cassation remarked that the dismissal is provided for absences for more than 4 days, and the conservative sanctions are provided for shorter unjustified absences.


The Court Ruling herein commented confirms previous Case Law stating that, in order to evaluate whether a dismissal for unjustified absence is lawful or not, it shall be evaluated whether or not the employee complied with the duty to inform the employer about the sickness and the related duration, not his/her actual health conditions.

In fact, the rules providing the employee’s obligation to inform the employer are aimed to enable the company to adopt all the measures needed to protect the proper functioning of the working activities.