“On leave to look after his disabled brother-in-law, but he was out and about buying ice cream”, fired from Almaviva

During the hours of leave provided for by law 104/1992 he should have looked after his disabled brother-in-law with cancer, but instead he would have gone shopping and buying ice cream. To discover that the Almaviva employee allegedly abused the hours of leave was a private investigator hired by the same company who kept an eye on him and followed him. The worker was then fired, but the judge of the Labor Court, Dante Martino, to whom he had recourse considering the reason for the expulsion to be unjustified and unjust, instead established that “the dismissal is based on a just cause and proportionate to the conduct charged to the worker “, as claimed by the defense of Almaviva, represented by the lawyer Mariano Equizzi. The employee was then sentenced to pay 1,500 euros for litigation costs.

“Going out shopping and buying ice cream” From private investigations, it would have emerged that on February 20 last year, at 8.30 am, the worker – formally on leave according to law 104 – would have left home to go to a mechanical workshop in via Paruta, delivering metal components to be welded. . Then he would come home with “some sort of white tube” in his hand. On the following 24th February, at 6.30 pm, the time when he was supposed to assist the sick relative, he would instead go to Lidl in via La Malfa and, after having made some purchases, he would return home at 19.35. On February 28, the employee then revoked the permission to assist his brother-in-law already granted by the company and communicated that he was ill: in this case at 16.16 he would leave the house and “with a hurried step and without showing any physical suffering” he would go to the Carrefour in via Domenico Russo where he bought “a pack of ice cream” and then in a well-known ice cream shop where he bought other ice creams, before returning home at 4.50pm. The defense: “I did everything in my own interest sick brother-in-law ” As the judge points out in the sentence issued in recent months “the facts presented have found substantial confirmation in court” so much so that “it is the worker himself, in defensive counter-arguments, who affirms that ‘every activity undertaken by me in the days you are referring to is it was carried out by me to help the disabled person in his small tasks. On February 20 I went to a blacksmith to weld old gym equipment that my brother-in-law had commissioned me to regain the muscle tone lost due to the disease. On the 24th I did the at the request of my brother-in-law, I would not have had the time necessary if I had gone out at 21. Then, given the time and the traffic, I went home to have dinner and, subsequently, to deliver it to him “. As for the sick day: “I moved away from home for a few minutes although I was affected because all the members of my family were equally unwell and I needed to make some purchases for basic necessities”. Arguments that did not convince the court. The testimony of the disabled person and the doubts of the judge During the trial, the disabled person that the worker should have assisted was heard: “My brother-in-law – he explained – once / twice a week did the shopping for me and my mother, usually taking it to me on the same day”. The judge underlines: “It therefore appears completely anomalous that this did not happen on February 24, despite having had the applicant (who went to the supermarket at 18.30 and on leave from 19 to 21) all the time to go to his brother-in-law’s house. evidence, especially if associated with the absence of any evidence regarding the actual delivery of the expense to the client in the following days, confirms Almaviva’s thesis, according to which these activities would have had more a personal purpose than a welfare one “. Similarly, from the statements of the witness regarding the gym equipment for the judge “there are no elements proving when and if the aforementioned metal support was ever delivered to the disabled person, so that there is no way to believe that the withdrawal of the tube metal by the worker on the aforementioned date was actually instrumental to assisting the disabled person “. But “even if such proof had been provided, the fact remains that the applicant, on 20 February, spent just 40 minutes (having returned home at 9.40) of his three hours of leave (9-12) for an activity largely attributable to the assistance of the disabled brother-in-law “. ” The worker abused the permits ” This is why “the conduct described above constitutes an evident abuse of the permits provided for by law 104” and “it is clear how the use of the permit by the worker and the correlative sacrifice on the part of the employer who renounces part of the work performance and community that through INPS covers the costs, can be considered legitimate only if aimed at pursuing this purpose. In this case, this purpose appears to have been repeatedly disregarded by the applicant who, having left the workplace to use the aforementioned permits, instead of going at the home of his disabled brother-in-law (despite having been able to), he carried out activities that were only minimally related to his welfare needs “. ” Seriously damaged the employer’s trust ” On the day of sickness, the judge writes that “although the worker has left the time slots useful for the tax visit, the commissions carried out certainly cannot be considered of primary importance: the purchase of ice cream, first in the supermarket and then in the ice cream parlor, are certainly not attributable to basic necessities that would justify the removal from residence. This circumstance, certainly by itself unsuitable for proving the simulated nature of the disease, however casts doubt on the good faith and correctness of the worker’s conduct and, together with the facts described above, constitutes a serious damage to the relationship of trust between worker and employer “. Finally, the sentence states that the worker “acted with full conscience and will, using the permits not to assist the brother-in-law but to carry out other activities or even just rest” and that, for all these reasons, the dismissal by Almaviva would be completely legitimate.

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