Law 104: when the improper use of the permissions justifies the employee’s dismissal

The abuse of permits under Law 104 is one of the main reasons for dispute between employers and employees. The improper use of the legal permits 104 can legitimize the dismissal of the employee by the employer. Indeed, if the employee, instead of caring of the sick family member, carries out other activities, perhaps for personal purposes, the employer can interrupt the contract.

In this case, the employee commits a "fraud", not only in respect of the employer, because it benefits from a permit paid in a manner not consistent with the objectives agreed by the law, but also against INPS, the provider of the service. It follows that the worker can be legitimately dismissed when he or she exploits the permits of law 104, by carrying out personal activities other than providing assistance to the disabled relative. In these cases, the "dismissal for just cause" is the instrument that attests the seriousness of the conduct, and as such can be carried out even without notice.

Sentences of the Court of Cassation on Law 104

Jurisprudence has often been questioned on the means that the employer can use to verify an abuse of the permits in question. The Court of Cassation, with sentence n. 9217/16 of 6 May 2016, reiterated that dismissal in these cases is considered legitimate.

To find out more, read the topic in our news: Law 104, Corte di Cassazione

How to denounce abuse of law 104

With the aim of enforcing this principle, the employer can instruct Dogma Investigation Agency to gather evidence to support the abuse of the law 104 permits. In this regard, we point out that the investigative activity is developed on the basis of a precise regulatory compliance that concerns multiple obligations. The Workers' Statute places the right prohibition on supervising work in the workplace (Article 2 of Law May 20, 1970, No. 300). The use of private investigation, on the other hand, can take place if it is aimed at protecting the assets, or outside the workplace to check whether the employee is fulfilling the obligations of the employment contract or not. Control over the improper use of the permits of the law "104" (of 1992) does not concern the fulfillment of the employee’s performance itself, since it is carried out outside the working hours and in the phase of suspension of the principal work obligation. Therefore, the investigative activity assigned to an authorized investigative agency is fully legitimate. The investigative activity is developed through a protocol that comes from our twenty-year experience in managing disputes and supporting the Human Resources or Legal functions of our Customers. The whole investigation is documented through testimonial and documentary evidence (videos and photos) that can be used in court.

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