Investigation of Employee Absenteeism

Art. 2119 of the Italian Civil Code provides for the possibility of withdrawing from a contract “before the expiry of the term, if the contract is for a fixed period, or without notice, if the contract is for an indefinite period, if a cause arises that does not allow the continuation of the relationship, even temporarily”.

Often, however, employers experience great difficulty in asserting their rights in the absence of real and documented evidence.

INSIDE conducts targeted investigation activities to find and document all evidence that can be used to legitimise the dismissal of an offending employee, particularly with regard to identification of the causes of absence and/or opportunistic behaviour incompatible with the employment relationship, to demonstrate:

• The existence of valid facts and reasons that justify absences due to employee’s illness.

The conduct of a worker who has acted fraudulently against the employer by feigning a state of illness, concerns a breach of contract that does not permit continuation, even temporarily, of the employment relationship. Ascertaining this situation legally permits the employer to proceed with dismissal with just cause.

Inside Agency has the skill and professionalism to provide targeted assistance to meet the express requirements for collecting and analysing all aspects which prove useful, with regards to the subject of the investigation.

• The existence of valid facts and reasons to justify absences due to injury of the employee.

Injuries differ from illness because they are an accident that occurred during working hours or on the way home/to work, or in some cases, whilst travelling from one job to another. It often happens that the employee, pretending to be in an accident, is absent from work so that they may perform other employment activities or engage in operations that are completely incompatible with the alleged temporary or partial incapacity caused by the accident, or upon the worker deciding to prolong the period of absence needed for healing, despite the fact that he/she is already back to good health. This conduct constitutes a breach of contract that could jeopardise the continuation, even temporarily, of the employment relationship. Ascertaining this situation legally permits the employer to proceed with dismissal with just cause.

Inside Agency has the skill and professionalism to assist clients in collecting and analysing all aspects that prove useful and reliable, with regards to the subject of the investigation.

• This includes the employee adopting any behaviour that, in relation to the entity and nature of the illness or accident, is able to compromise or delay their recovery.

Any employee who, during the course of their illness or injury, undertakes any behaviour aimed at hindering the healing process or, to the contrary, contributes to a worsening of his/her health conditions, is subject to dismissal, as this is in breach of the contractual duties of care and loyalty, as well as the duties of correctness and good faith, such as to reduce the relationship of trust between the employer and the employee, being an essential element of the employment relationship, thus preventing continuation, even temporarily, of the same.

• The regular and correct use of union permits and parental leave provided for by Law No. 104/1992.
• the regular and correct use of trade union permits.
• False declarations of an employee’s presence in the company whereby effectuated by a colleague by stamping a timeshee.

False declarations of an employee’s presence in the company whereby effectuated by a colleague by stamping a timesheet represents conduct detrimental to the bond of trust between the employer and the worker, and thus justifies dismissal (Article 55-quater of Legislative Decree 165/2001). Indeed, the timesheet constitutes a document for the exclusive use of the holder, which cannot be transferred to third parties. Behaviour that is non-compliant violates the duties of due diligence and good faith, thus legitimising the employer in dismissing the perpetrator of the misconduct with just cause.

If suspicion arises that an employee is not in the workplace, even if present in service, or that the employee has left the company without a specific reason authorising him or her to do so, the employer can ask experts to intervene, who may ascertain if any illegal conduct has been undertaken by the worker.