EMPLOYEE ABSENTEEISM

For companies, the absenteeism of one or more employees can create problems of the productivity and profitability of a company.

In Italy, the law provides that an employee can legitimately be absent from work for various reasons, such as family, personal, or health.

However, when absenteeism becomes routine, something else can be hidden, for example, a second job, the extension of weekends or holidays, the simulation of caring for a family member (Law 104), etc.

For the reasons described above, the company can appoint an authorized investigative agency to ascertain the real reasons for absenteeism, which, if ascertained, can lead to the dismissal for just cause of the worker or workers.

The investigative agency, through its qualified private investigators, will collect all the information and evidence useful for the company to be able to proceed by legal means against the absentee employee.

The information and evidence collected will be included in the investigative dossier, which will have probative value in the trial.

Below are some Italian Court of Cassation judgments on the subject matter.

• 8373 of 4 April 2018, the Court of Cassation reaffirms the legitimacy of the use of the investigative agency by the employer to ascertain the non-performance of work by employees. Specifying the lawful use of the private investigator only if the control does not border on the supervision of the actual work activity (reserved by the Workers’ Statute to the employer himself and his collaborators). The investigation can, however, ascertain “the causes of the employee’s absence from the workplace concerning precisely the failure to carry out the work activity to be carried out even outside the company structure”.
• judgment no. 4984/14, issued by the Labour Section of the Supreme Court, had ruled on the lawfulness of the employer to contact a private investigator or an investigative agency to protect company assets, to verify whether the employee, who benefits from the permits granted by Law 104/1992, is correctly benefiting from a permit granted and governed by law, or whether he is committing an offense to the detriment of the employer and the community.