Legge 104, la Cassazione su licenziamento per giusta causa. La nota ANMIL A cura dell'Ufficio Affari Legali

31 luglio ’19. La Corte di Cassazione, con sentenza n. 18411 del 9 luglio 2019, ha affermato la legittimità del licenziamento di un lavoratore che, fruendo dei permessi ex L. 104/1992, non si era recato presso l’abitazione del familiare da assistere, restando invece nel proprio domicilio. L’accertamento era avvenuto attraverso investigatori privati.
La vicenda scaturisce da un licenziamento per giusta causa ai danni di un lavoratore  per abuso dei permessi ex art. 33 L. 104/1992. Va detto che la legittimità del licenziamento era stata confermata dai giudici sia di primo che di secondo grado. In particolare, i giudici di merito avevano osservato come potesse ritenersi raggiunta la prova dell’abuso in due dei quattro giorni di permesso ex L. 104: tale prova è stata fornita dalla relazione di un’agenzia investigativa che aveva osservato come, durante le due giornate di permesso, il lavoratore non fosse mai entrato o uscito dalla propria abitazione e dunque non si fosse recato presso l’abitazione del familiare per fornire assistenza. In risposta alla contestazione disciplinare del datore di lavoro il lavoratore aveva affermato invece di fornire regolare assistenza tranne che per alcune ore nella giornata.
La Suprema Corte ha quindi affermato che, nella fattispecie, la giusta causa alla base del licenziamento sia ravvisabile nella lesione incontrovertibile del rapporto fiduciario.

“Preme tuttavia sottolineare come talvolta i pronunciamenti della Corte di Cassazione – si legge in una nota dell’Ufficio Affari Legali di ANMIL –  siano risultati contraddittori, passando da interpretazioni meno restrittive che escludevano ogni attività diversa dalla presenza continuativa presso la persona con disabilità da assistere (Cass. 23891/2018) ad interpretazioni meno rigide e più flessibili: è il caso della sentenza n. 30676/2018 con cui è stato respinto il ricorso di un datore di lavoro, che aveva accusato il proprio dipendente di aver utilizzato in maniera impropria i permessi ex L. 104 per assistere il familiare disabile stabilendo che i permessi possono essere usati anche per consentire al dipendente di riprendersi dalle ore passate ad assistere il familiare con grave handicap con problemi di salute e che durante i permessi è possibile svolgere attività a favore del familiare in senso lato”.

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