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The employee grants himself holiday leave upon the employer refusing to do so

This Court of Viterbo established, in its judgment dated 24 April 2013, that the absence of the employee during the period covered by the request  for leave (which was denied by the employer) had to be considered an unjustified absence giving rise, under the applicable National Collective Employment Agreement, to dismissal without notice.

The determination of the holiday period and the authorization to take holiday leave comes within the employer’s power to direct the employee.

Therefore, any absence of the worker from the place of work must be authorized in advance by the employer, who also has the power to change the vacation plan that has already been established in consideration of the latter’s business needs.

This is in full compliance with the provisions set forth in article 2109 of the Italian Civil Code, which provides that the fixing of the period during which holidays are to be taken by employees is fixed by the employer who shall take into account the needs of the company and the interests of the employee.

The Employment Section of the Court of Viterbo held, in its judgment dated 24 April 2013, that Holidays are certainly an inalienable right of workers, which must nevertheless be enjoyed in the time agreed with the employer in compliance with the latter’s business needs. Employees cannot assign themselves leave without or against the consent and authorization of the employer, even when the refusal of authorization is deemed illegal, arbitrary, discriminatory, etc..

In the case at hand the worker could have challenged the legality of the employer's refusal in court, demanding compensation, but could not absent himself and exercise an alleged  right to leave that - in the absence of authorization - could not in any way be considered to be legitimate.

To do otherwise would mean suppressing the power that the law gives employers to manage their businesses.

It follows therefrom that an unjustified absence leads to disciplinary action, since the decision to take holidays is not left to the free choice of the employee.

Therefore, any absence for vacation (with the sole exception of absences caused by a supervening impossibility of performance - such as illness or accident) must always be authorized in advance by the employer, with the result that an absence from work is unjustified  if the same is not due to objective causes that render the performance of work impossible (Court of Ferrara 21.10.2006).

The employee who has requested but has not received from the employer leave, but nevertheless absents himself, commits a major disciplinary offense, which is punishable with dismissal (Court of Forlì, 2 January 2008).

The employee, therefore, cannot - against the express will of the employer - absent himself unilaterally for vacation in a period chosen arbitrarily and therefore, without authorization (which does not coincide with that established by the employer, thus contrasting with the requirements of the roper technical conduct of the company; cfr. Supreme Court judgment  no. 5393 dated May 7, 1992 and Supreme Court judgment  no. 981dated April 14, 2008).

The absence of the plaintiff during the period covered by the request of leave had to be considered, in the case at hand, an unjustified absence lasting for more than three days, which, pursuant to article 52, paragraph 1, letter. a) of the National Collective Emlpoymeny Agreement, led dismissal without notice.


This post is also available in: Italian

Matteo Moscioni

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