Abuse of leave under Article 33, Law No. 104/1992 and the Burden of Proof

Published in Sintesi , journal of Milan’s Labor Consultants Council, February 2024.

Abstract

Abuse of 104 Leave: When Dismissal Is Justified

The Supreme Court ruling no. 30462/2023 confirmed that the abuse of 104 leave (Law 104/1992) can justify an employee’s dismissal. Employers can rely on concrete evidence, including investigations, to prove the misuse of 104 leave if the employee does not actually provide care for a disabled family member. The employee must then demonstrate that the assistance was genuinely carried out. This decision highlights that abuse of this leave is a serious breach of trust and can lead to immediate termination.