Hunting and Law: a man was caught hunting while he was absent from work due to illness, dismissed by the company but the Court of Appeal considers the dismissal illegitimate.
Except, definitively, the job, for a man, who ended up under accusation for having dedicated himself to the passion for hunting during a period of illness. The disciplinary offense was evident, but no prejudice materialized to the detriment of the company. And, in any case, the episode is not considered so serious as to irreparably break the employer-employee fiduciary bond. THE CASE. Forced to stay at home, due to precarious physical conditions. Obviously, ad hoc medical certificates also attest to this. All regular, therefore, at least in appearance ... because the worker, who, for the company, is officially ill, is caught hunting. Passion, that hunting, absolutely legitimate, which, however, risks costing dearly - the job, to be precise -, in this case ...
To "save" the man, however, is the lack of 'proven proof' of the injury suffered by the company, and the evaluation of the episode as not sufficient to consider definitively the employer-employee fiduciary bond (Cass ., sent. no. 4869/14). The position taken by the company is drastic: few discussions, employee fired! For what reason? Because he - framed with "duties of driver and security guard" - has bluffed about his health conditions, choosing to get "sick" to not go to work, yet dedicating himself, in those days, to hunting.
This is enough - and advances… -, according to the company, to definitively “greet” the employee. And this perspective is shared by the judges of the Court, who consider the decision to dismiss the worker correct. But, surprisingly, the judges of the Court of Appeal reshuffle the cards ... More precisely, the "illegitimacy of the dismissal" was decided. This is because, having ascertained that "the medical certificates of illness" turned out to be "true", the employer's thesis was not proven, according to which the employee, carrying out hunting activities on days when he was absent due to illness, would have jeopardized his own health, delaying recovery and causing the related damage "to the company. Moreover, the judges add, it is not possible to argue that the 'incriminated' episode - that is, the fact that the employee was "seen in hunter's clothes in three days when he was absent from work" and "on sickness" - cracked Company-employee "fiduciary bond" so as to make the "dismissal for just cause" correct.
At work. The judges of the 'Palazzaccio' take steps to definitively close the dispute, who, rejecting the objections raised by the company, confirm the 'reinstatement' of the employee, who, therefore, can 'regain possession' of his job. The decisive factor is the gap, attributable to the company, relating to the "proof of the impact of the different activity", faced by the employee, in "delaying or jeopardizing recovery".
Stated even more clearly, the "harm" to the employer caused by the employee's conduct is only hypothetical. Consequently, the judges conclude, "the disciplinary offense, committed by the worker", precisely because of the "lack of prejudice" for the company, cannot merit "the expulsive sanction", not having ceased, in a total way, the "bond of trust".
16 May 2014
Source: Right and Justice