Civil Court of Cassation, Labor Section - 04/26/2022, no. 13063 - Labor Section

The suspension of work performance due to illness is based on the concept of "relevant illness," meaning a condition of infirmity that, due to its intrinsic severity and/or impact on usual duties, results in a concrete and current inability to perform one's work for the worker, albeit temporarily (see Cass., no. 14065 of 1999). Therefore, even when the illness prevents the execution of the specific activity subject to the employment contract, it can still happen that the worker's remaining psycho-physical abilities allow for the performance of other activities compatible with their condition.

However, the jurisprudence has clarified that the performance of such activities by an employee absent due to illness is not without disciplinary relevance; indeed, in some cases, it may even justify dismissal. This occurs particularly when the employee's behavior violates the duties of fairness and good faith, in addition to the contractual obligations of diligence and loyalty. Such violations occur both when the alternative activity suggests the non-existence of the pathology and thus fraudulent behavior by the employee, and when such activity prejudices or delays, even potentially, recovery based on the nature of the illness and the tasks performed.

This principle has now been consolidated by jurisprudence (see Cass. n. 1747/1991, n. 9474/2009, n. 21253/2012, n. 17625/2014, n. 24812/2016, n. 21667/2017, n. 13980/2020). In fact, during the period of suspension due to illness, the worker remains responsible for obligations of diligence and loyalty (arts. 2104 and 2105 c.c.), as well as the duties of correctness and good faith provided for by arts. 1175 and 1375 c.c. (see Cass. n. 7915/1991).

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