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28 May 2008
An employee with a sedentary job who was on certified sick leave for psychophysical asthenia (a condition of abnormal physical weakness) was found to be working evening and night shifts as a trainee at a pharmacy. His employer dismissed him for cause, but the employee challenged the dismissal and the Milan Court of Appeal ordered his reinstatement. In the meantime, the employee had become the owner of the pharmacy and was working as a professional pharmacist. The court of appeal decision was reversed by the Supreme Court.
In reversing the decision, the Supreme Court followed established legal principles and clarified that if an employee works while on sick leave, his or her dismissal is justified on the grounds that such action breaches his or her obligation of diligence and loyalty in the employment relationship.
A dismissal is valid even if (i) the other professional activity in question is such that the employee may be presumed not to be suffering from a medical condition, or (ii) such activity (as evaluated in an ex ante prognosis of the illness in relation to the employee's tasks) is likely to affect or delay the employee's restoration to heath and subsequent return to work.(1) The court stressed the need for a case-by-case judgment which considers in real terms the causes of the illness, the peculiarities of the condition and the employee's various tasks in his or her different jobs, and weighs such factors in relation to each other.(2)
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