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With regard to dismissal for exceeding the statutory sick leave period, the employer’s prolonged inaction following the employee’s return to work may constitute a tacit waiver of its right to terminate the employment contract, with the consequence that previous absences, for which the decision not to dismiss has already been made, cannot subsequently be “recovered” by adding them to the calculation of the statutory sick leave period for the purposes of dismissal.
This was reaffirmed by the Supreme Court, in ruling no. 7975 of 31 March 2026, in relation to a case in which a female employee had been dismissed for exceeding sick leave limit, calculated in instalments, as set out in the applicable National Collective Bargaining Agreement (NCBA) and amounting to “120 days over the three-year period preceding the most recent illness.” In particular, the employee had exceeded the aforementioned limit between June and August 2019, accruing 134 days of sick leave; nevertheless, after returning to work and before the notice of dismissal was served, the employment relationship – albeit punctuated by short periods of absence – had continued for over a year. Hence the unlawfulness of the dismissal challenged by the employee, as the employer’s inaction following the exceeding of the statutory sick leave period had generated in the employee “a reasonable and blameless expectation that the employment relationship would continue.”
The Court of Appeal of Catanzaro, overturning the first-instance decision, had upheld this approach, ordering the company to reinstate the employee and to pay her compensation amounting to twelve months’ salary. In particular, the Court of Appeal – referring to the case law of the Supreme Court according to which, from the date of the employee’s return to work, any prolonged inaction on the part of the employer may be “objectively indicative of a willingness to waive the power to dismiss” — had held that the period elapsed since the employee’s return to work was sufficient to establish a tacit waiver of the power to dismiss on objective grounds.
The employer therefore appealed the decision to the Supreme Court, complaining of an alleged misinterpretation by the Courts of merit of the contractual clause regarding fractioned sick leave and arguing that the subsequent periods of illness should have resulted in a “postponement” of the reference period, thereby allowing for a reassessment of previous absences as well.
In rejecting the claim, the Supreme Court confirmed the correctness of the calculation method adopted by the Court of Appeal and reaffirmed the principle that, once an employee returns to work and the employer allows the employment relationship to continue for a significant period of time without terminating it, such inaction may be interpreted unequivocally as a waiver of the power to dismiss, thereby giving rise to a legitimate expectation on the part of the employee on continuation of employment. The scope of such a waiver – the Supreme Court clarified – is, however, limited to the specific absences already “tolerated” and which led to the exceeding of the permitted absence limit, with the consequence that the employer’s power to dismiss in the event of new and further absences remains unaffected.
Thus, the Supreme Court, confirming a principle already established, issues, on the one hand, a clear warning to employers, which risk automatically waiving the right to dismiss in the event of the absence limit being exceeded if they do not act promptly; on the other hand, it strengthens the protection of the employee, recognizing the full legal validity of their reliance on the continuity of the employment relationship.
Key Action Points for Human Resources and In-House Counsel
- With regard to dismissal for exceeding the statutory sick leave period, the employer’s prolonged failure to cease the employment relationship following the employee’s return to work may constitute a tacit waiver of the right to terminate the employment contract.
- In the light of the above, the Supreme Court reaffirmed the principle that, once an employee returns to work and the employer allows the employment relationship to continue for a significant period of time without terminating it, such inaction may be interpreted unequivocally as a waiver of the power to dismiss, thereby giving rise to a legitimate expectation on the part of the employee on the continuity of employment.