Dismissal due to illness

Dismissal due to Employee Illness: How Investigations are carried out for False Employee Illness, what can be demonstrated and when it is legitimate to contact an Investigative Agency

WHEN IS IT POSSIBLE TO DISMISS AN EMPLOYEE WHICH IS SICK?

Dismissal due to illness is an extremely delicate topic to deal with from the point of view of employment law. This is for the protection that the legislator wanted to reserve for employees. However, there are three different cases in which the dismissal of a sick worker is foreseen:

The term "behavior period" (Article 2110 of the Civil Code) means the total number of absences due to illness carried out by an employee. The limit of this period is usually provided for in collective labor agreements. After this period, the employee can be fired (dismissal due to prolonged illness).

Dismissal for Just Cause:

Dismissal for just cause (Art. 2119 Civil Code) occurs when the employee carries out conduct of such serious disciplinary nature that it does not allow the continuation of the employment relationship, even on a temporary basis.

Dismissal for just cause is also considered dismissal carried out by the employer after demonstrating that the sick employee does not respect the duties of loyalty and good faith. In fact, the false illness or failure to comply with the state of illness by the worker is considered so serious that it does not allow the continuation of the employment relationship.

Dismissal for Justified Objective Reason:

The art. 3 of Law 604/1966 establishes that the justified objective reason for dismissal consists of reasons inherent to the productive activity, the organization of work and its regular functioning. So, for example, in the event of restructuring or termination of the business, or the lack of tasks to be assigned to the employee.

INVESTIGATIONS PREVAIL OVER THE MEDICAL CERTIFICATE

SOME EXAMPLES OF MISBEHAVIOUR:

Simulate the state of illness; Carry out other work activities during the period of illness; Carry out activities and/or behave in a way that is contrary to recovery, without observing the necessary precautions; Violate the prohibition on competition, for example by carrying out another job during the period of illness, even for competing companies;

FALSE ILLNESS: AS WELL AS A CIVIL CRIME IT CAN ALSO BE A CRIME.

An employee who receives a sickness allowance from the INPS (National Social Security Institute) which, following an investigation, turns out to be false, can be sued by the employer for fraud. This situation can be aggravated if the worker misleads the doctor in order to obtain the false health certification.

DISMISSAL FOR ILLNESS: HOW INVESTIGATIONS ARE CARRIED OUT

When the employer suspects that the employee does not have a state of illness (false illness). Or when the employer suspects that the employee is carrying out another job or is not observing the necessary precautions in order to restore his job as soon as possible, he can request the intervention of a investigative agency that carries out investigations to ascertain their behavior.

In fact, as required by law, specifically, in the Sentence of the Court of Cassation n. 6236 of 2001, the activity of an investigative agency in order to monitor the compliance with the state of illness by an employee is legitimate.

Alpine Investigation Agency, since 1992 has carried out investigations aimed at ascertaining false illness by employees, providing valid evidence (photos and videos) in court. Use of investigative techniques such as stalking together with GPS satellite localization systems and Open Source INTelligence techniques.

Investigations for Dismissal due to Illness are aimed at ascertaining any violations committed by the worker during the state of illness. It is useful to underline how the investigations are useful in determining any fraudulent behavior carried out by the worker. Always taking into consideration the objective that the client wants to achieve, the investigative activity is structured:

Verification of movements at agreed times, through static (so-called stalking) and dynamic (so-called shadowing) visual monitoring activities; Use of GPS satellite systems, as foreseen and authorized by Ministerial Decree 269 of 1 December 2010; At the end of the investigations, a Written report that can be produced in court accompanied by photographic evidence and videos; Use of investigative techniques based on Osint (Open Source Intelligence) Documentation through films and/or photos testifying to any extramarital relationship; List of employees who carried out the investigation for a possible call as witnesses in court at the competent court.

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