Fired after holidays in Santo Domingo

Not everyone is lucky enough to take a vacation in one of the most well-known and coveted seaside places in the world. When it is made possible at any time of the year without worrying about spending money on food and lodging, it is an exaggerated good fortune.

A. B. is definitely one of those kissed by luck. He comes from Naples and is a janitor at the market of Bagnoli. He cleans streets and roads from the garbage left every day by thousands of people. But, when it comes to vacation time, he is second to nobody.

Some time ago he met a lady and fell in love with her. They married and had a daughter.

The lady is from Santo Domingo and is very nostalgic for the velvet beaches of her country. Her parents are there too, and she is very affectionate to them. Her husband is a very compassionate man and, to make her nostalgia fly away, he spends all his summer days off in Santo Domingo.

Of course, even if you are a guest of your in-laws, it is impossible not to devote yourself to bathing in the sea, to walks and to fishing trips, even if your health is not quite the best and the change of climate exacerbates the ailments.

What appears from the outside to be a long Caribbean holiday, however, can hide a completely different reality. Being abroad does not automatically mean being on holiday, just as falling ill at the end of a period of annual leave does not by itself prove that the worker is trying to extend the vacation unlawfully.

That distinction would become decisive for A. B.

Climate change exacerbates the ailments he suffers

Poor Mr. A. B. Indeed, he is diabetic and has been suffering from a bad depression for years. The passage from Naples to Santo Domingo, because of the different diet and the much wetter climate, makes these pathologies worsen.

During one of his last vacations in Santo Domingo, not a single cure of the local clinics can improve his health, and he is not allowed to take a plane and return home and work.

A. B. is thus forced to stay on the island more than expected even if the holiday period has expired. To avoid incurring problems with the employer, he goes to a doctor who officially prescribes him fifteen days of rest and care. He then goes to a judicial interpreter and has the medical certificates translated to be sent to Italy.

The existence of medical documentation becomes fundamental. The problem in these cases is not simply whether the employee is physically outside Italy, but whether there is a genuine illness capable of preventing the performance of the specific work activity and whether the worker has complied, as far as applicable, with the obligations of communication and certification.

The protection granted to a sick employee does not eliminate his duties of fairness and good faith. At the same time, however, suspicion alone cannot transform an illness into misconduct. The relationship between sickness, medical certification, availability for checks and disciplinary consequences must be assessed according to the concrete circumstances. Further aspects concerning sickness of the employee, availability requirements and medical controls are examined by the Studio Legale in a specific employment-law analysis.

While he was still convalescing, he got the nasty surprise: an immediate just cause termination received soon after the imposition of a disciplinary measure for one single day of truancy.

Fired with nothing to support his family with

Of course, in order to accommodate his wife’s desire, or need, to return to Santo Domingo from time to time, having a lot of money is a priority since three international flight tickets, not to mention intercontinental ones, are certainly not a cheap deal.

But being out of work means suffering in everyday life too, because airfare would be the last thing to worry about if you don’t have money to buy meals.

Moreover, there is a teenage daughter, whose right to go to school or to play sports or to go out with friends cannot be denied.

A dismissal is rarely just a line written in a letter. For a family living mainly on a salary, losing employment means suddenly having to reconsider rent or mortgage payments, household expenses, school costs and even ordinary plans that previously seemed obvious.

That is why the consequences of an allegedly unlawful dismissal extend well beyond the employment relationship itself. They enter the home and alter the balance of an entire family.

Dismissal is unlawful and must be appealed

In short, a solution has to be found. The family accumulated too much anxiety by the way. A. B. was having his wife moping around, fearing she would have to give up embracing her parents for who knows how long; his daughter was in the middle of a crisis, after the umpteenth “no, tonight you will not go out!”.

A. B. knows that, in spite of the fantastic resort, which evokes postcard landscapes, the stay in Santo Domingo was everything but a holiday: he was in bed, unable to get up, without even the strength to look out of the window, let alone bathe in the sea.

So why not try to prove his innocence?

A dismissal based on disciplinary grounds should never be assessed only by reading the final dismissal letter. It is necessary to reconstruct the disciplinary charge, the employee’s explanations, previous sanctions, the applicable collective agreement, the seriousness of the alleged misconduct and, above all, whether the ultimate sanction is proportionate to what actually happened.

The difference is crucial because dismissal is the most serious disciplinary consequence available to an employer. Not every breach of duty, even when established, is necessarily serious enough to destroy the relationship of trust and justify the permanent loss of employment.

The lawyer in Rome disputes the disproportionate penalty

A. B. turns to a law firm in Rome, known for witnessing several cases of unlawful dismissal that seemed desperate. The thought of having to pay the fee is pressing, but the prospect of being able to win a case and get the job back gives him hope.

He then goes to the lawyer, with whom he develops the defensive strategy: dismissal is clearly a disproportionate measure for just one day of unexcused absence, contrary to the rules of law and national collective agreements.

The proportionality of the disciplinary sanction becomes the heart of the dispute. A previous disciplinary violation may certainly be relevant, but it cannot automatically turn every subsequent irregularity into a just cause for dismissal. The judge must evaluate the concrete conduct, its seriousness, the damage or danger caused to the employer, the employee’s previous behaviour and the rules established by the applicable collective agreement.

An Avvocato dealing with an employment dispute must therefore compare the employer’s allegations with the actual facts and verify whether the disciplinary procedure and the sanction imposed are legally coherent. The Studio Legale must also consider whether the employer is attempting to rely on circumstances different from, or broader than, those actually challenged to the worker.

For his company it’s cunning, not sickness

According to the company he belongs to as a worker, A. B. is a slacker. Every time he leaves for Santo Domingo, the story allegedly recurs: he gets sick a moment before his holidays expire, and leaves Santo Domingo many days after the vacation’s end.

An attitude too suspicious not to think that he was taking advantage of the situation, says the employer.

It wasn't the first time he was sanctioned. Because of not showing up at work, he was suspended and claimed to have caused damage to the company. Moreover, the disease had apparently caught him at the same time of the year, August, and in the same place, Santo Domingo.

From the employer’s perspective, these elements appeared to form a pattern. Yet a pattern of circumstances is not necessarily proof of fraud. Recurring illness may be suspicious, but suspicion and proof are not the same thing.

The decisive question becomes whether the worker actually simulated the illness or deliberately prolonged it, or whether there was objective medical evidence supporting his inability to return to work.

This is also why medical certificates, previous clinical history and the employer’s knowledge of pre-existing diseases can become decisive evidence in litigation.

Since the dismissal is unlawful, it comes the reinstatement

With the help of his lawyer, A. B. was able to demonstrate that the repetition of absences was not a premeditation of the worker but an actual aggravation of pathologies due to climate change.

The company was aware of Mr. A. B.'s delicate state of health, and during so many years of working, he had never been challenged.

The Tribunal thus accepted Mr. A. B.'s defence arguments, declaring the dismissal unlawful and ordering the company to reintegrate him into the workplace.

The Court stated that, being the conduct already sanctioned by suspension and assessed as posing a not severe risk for the company, the employer should not order dismissal, suitable to a much more severe case of misconduct.

No malicious prolongation of the holidays, nor disinterest in the company, which, moreover, had not disputed anything for the other sick days, nor had it had any doubts about the onset of the disease itself.

The company was also ordered to pay compensatory damages amounting to 15 salaries.

The result shows why the principle of proportionality is not merely theoretical. A disciplinary sanction must correspond to the actual seriousness of the conduct attributed to the employee. Where the employer has already assessed certain behaviour as deserving a conservative sanction, such as suspension, the same factual episode cannot casually be transformed into the basis for the most severe sanction without a legally sustainable justification.

When a dismissal is challenged, an Avvocato must therefore reconstruct not only the final event but the entire disciplinary history of the relationship. The same principle emerges, from the opposite perspective, in cases in which conduct during sick leave is genuinely capable of violating the duties of good faith. The distinction can be seen in the Studio's analysis concerning use of a company car and dismissal during sick leave.

Your job is safe even if you swim during sickness

Apparently not all workers caught at the seaside while on sick leave can be fired.

It happened once again in Campania, where a gentleman, employed in a company, takes a few days off due to illness because he has suffered a knee sprain. At the end of the recovery, when the pain has subsided, he thinks well of going for a little walk along the shoreline. The temptation to bathe is invincible: he does not resist and dives.

Coincidentally, a company executive passes by, notices him in the water and the dismissal follows. He is reinstated because, as the Court of Cassation ruled, the state of illness is not necessarily incompatible with physical activity.

The case reached the Italian Supreme Court and was decided by Corte di Cassazione, Labour Section, judgment no. 1173 of 18 January 2018. The important principle is more nuanced than saying that a sick employee may always go to the beach.

The real question is whether the recreational activity demonstrates that the illness was simulated or whether, assessed in relation to the pathology and to the employee’s duties, it was capable of compromising or delaying recovery and the return to work.

In that case, moderate physical activity consisting of short walks and bathing in the sea was considered compatible with recovery from the knee injury. Therefore, the fact that the employee had been seen at the seaside was not sufficient to prove that he could perform his normal work or that he was acting against his medical recovery.

The distinction is essential. A worker on sick leave is not necessarily required to remain immobile throughout the day. At the same time, sick leave is not a period in which any activity is automatically legitimate. An activity that is inconsistent with the illness, demonstrates that the disease is simulated, violates availability obligations or objectively risks delaying recovery may have very different disciplinary consequences.

For this reason, each case requires a concrete assessment of the illness, the work performed, the medical instructions and the activity carried out during the period of absence.

The broader rules concerning employee sickness and medical-control obligations confirm that illness does not erase the employment relationship: rights and duties continue to coexist during the period of absence.

The story of A. B. therefore contains a lesson that goes beyond a holiday in Santo Domingo. A worker cannot be dismissed simply because the employer considers the circumstances suspicious. Nor, on the other hand, does a medical certificate make every subsequent conduct irrelevant.

What matters is proof.

When the sanction is dismissal, the circumstances must be examined carefully because the consequence is the most serious possible: the loss of the job on which a person and often an entire family depend.

That is why seeking assistance from an Avvocato and a Studio Legale experienced in employment disputes can become decisive when illness, disciplinary sanctions and dismissal overlap.