Improper use of permits law 104
How does Law 104 Permits work? When is it possible to use an Investigation Agency for checks permitted by Law 104?
IMPROPER USE LAW 104: WHEN IS IT POSSIBLE TO DISMISS THE EMPLOYEE?
The investigations for improper use of paid leave granted to the worker pursuant to Law 104/1992 fall within the corporate investigations carried out by the Alpine Investigation Agency. These investigations are carried out with the aim of collecting evidence in order to testify, also during the Judgment, any violations committed by the employee. The incorrect use of the permits granted to the worker pursuant to Law 104/92 may legitimize the dismissal of the employee for just cause by the employer. Therefore, an employee who uses these permits to carry out activities not inherent to the purposes established by the Law can be legitimately fired.
WHO CAN REQUEST PERMITS?
Among the benefits provided pursuant to art. 33 Law 104/92 there is the possibility of taking advantage of Paid Leave, which consists of permission, paid on the basis of the salary actually paid, to abstain from work. The use of these permits is granted only to certain categories of people in possession of particular requirements, they are:
- Employees with serious disabilities; family members (spouse and parents) of the disabled worker in a serious situation; Relatives and in-laws within the 2nd degree of the disabled worker in a serious situation;
The art. 33 provides for the request for 3 days of monthly leave, with the possibility of being divided into hours.
Improper Use of Permits Law 104, it is permissible to contact an Investigative Agency.
Employer checks are legitimate, this is what a ruling of the Court of Cassation established. In this case, sentence no. 9217 of 6 May 2016. This case refers to the dismissal of an employee who used the permits granted pursuant to Law 104/1992. But, following investigative activities, it was discovered that the employee used these permits only partially to assist the person in need. In fact, he used the remaining time for personal purposes. The Court of Cassation has expressed its opinion several times on the matter. To read all the sentences relating to the improper use of Law 104 permits, click here.
Violation of permits law 104. The rights of the employer:
The permits for law 104, however, are often used incorrectly and illegally for purposes completely different from those envisaged by the legislator. Typical are the cases of permits under law 104 used to take holidays, to carry out recreational activities and, last but not least, to offer work services to third-party companies. It is true that the remuneration for the hours and days used is paid by INPS (although it is usually advanced by the company to which they belong) but there is no doubt that incorrect behavior on the part of the worker can cause significant damage to company productivity, as well as undermining the fiduciary relationship between employer and employee.
VIOLATION OF PERMITS UNDER LAW 104/92: INVESTIGATIONS.
The Permit Abuse 104/92 investigations are aimed at ascertaining any violations committed by the worker during the use of these permits. It is useful to underline how investigations are useful in determining any fraudulent behavior carried out by the worker. The investigative activity is structured by always taking into consideration the objective that the client wants to achieve:
- Verification of movements at agreed times, through static (so-called stalking) and dynamic (so-called shadowing) visual monitoring activities; Use of GPS satellite systems, as foreseen and authorized by Ministerial Decree 269 of 1 December 2010; At the end of the investigations, a Written report that can be produced in court accompanied by photographic evidence and videos; Use of investigative techniques based on Osint (Open Source Intelligence) Documentation through films and/or photos testifying to any extramarital relationship; List of employees who carried out the investigation for a possible call as witnesses in court at the competent court.
Law 104 and Employee Dismissal
The company can turn to an investigation agency for checks under law 104, as sanctioned on several occasions by the Court of Cassation (see for example sentence no. 4670 of 18 February 2019). The intervention of private investigators is therefore permitted to discover any relevant actions that could cause damage to the client. In this sense, the violation of permits for law 104 is an example of a school, given the frequency with which it occurs. It is also worth highlighting that the same Supreme Court ruling specifies that the company can use private investigators even just on suspicion of illicit conduct on the part of the worker.
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