COURT OF CASSATION: LAWFULNESS OF THE ABSENCE FOR LEAVE UNDER LAW 104/1992 EVEN IF NOT COMMUNICATED, UNLESS A DIFFERENT PROVISION OF THE COLLECTIVE BARGAINING AGREEMENT
The Civil Court of Cassation, Labor Section, with ordinance no. 5611 of March 3, 2025, stated that the failure to communicate the use of leave provided by Law 104/1992 cannot be equated to unjustified absence, unless otherwise provided by the collective agreement.
According to the Court's reasoning, absence from work due to the use of such leave without formal communication to the employer of the absence itself and its reasons cannot be considered unjustified. At most, it raises an issue related to a mere communication defect, which should be addressed in accordance with general principles of fairness and good faith. However, it is not considered disciplinarily serious enough to warrant dismissal.
Based on this assumption, after verifying that the equivalence between unjustified absence and the above-mentioned permits was not expressly provided for in the collective bargaining applicable to the case at stake, the Court annulled the dismissal “for unjustified absence” of an employee who had been absent from work for about a week and had not informed the employer of the fact that the absence was due to the use of the permits provided for by Article 33, paragraph 3 of Law 104/1992 (to assist a disabled minor child in a serious situation); moreover, the Court awarded the worker reinstatement and financial compensation.
