Court of Cassation: Dismissal for unjustified absence is valid if the medical certificate of illness issued abroad does not have an Apostille

With Ordinance no. 24697 of 11 August 2022, the Court of Cassation, Labour Civil Chamber, has established that, under the Hague Convention on the abolition of the legalisation of Foreign Public Acts, exemption from the legalisation of foreign certificate is conditional on the issue, by the authority designated by the State to edit the act, of a special “Apostille”, to be affixed to the act itself.

Table of Contents

  1. Regulatory framework
  2. The main points of the Ordinance no.24697
  3. The judgment of the Court of Cassation: Apostille is compulsory on foreign medical certificates
  4. Support from A&P
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1. Regulatory framework

The Hague Convention of 5 October 1961 exempted the Contracting States from the legalization of documents to which the present Convention applies and which have to be produced in their territory. The Convention concerns, in particular, public acts which must be produced in the territory of the Contracting State.

Below, public documents covered by the Convention:

  1. Documents emanating from an authority or official connected with the courts or tribunals of the State, including those emanating from a public prosecutor, a clerk of a court or a process server (“huissier de justice”);
  2. Administrative documents;
  3. Notarial acts;
  4. Official declarations, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures.

 

However, the Hague Convention shall not apply to:

  1. Documents executed by diplomatic or consular agents;
  2. Administrative documents dealing directly with commercial or customs operations.

 

Consequently, the only formality required to certify the authenticity of the signature, the capacity in which the signatory acted and, where appropriate, the authenticity of the seal or stamp which it bears, is the affixing of the apostille, issued by the competent authority of the State from which the document emanates.

However, the addition of the apostille may not be required where either the laws, regulations or practice in force in the State where the act is produced, or an agreement between two or more Contracting States, have abolished or simplified it, or exempt the document itself from legalization.

2. The main points of the Ordinance no.24697

The case covered by Ordinance no. 24697 of 11 August 2022, is that of a cleaning worker (Level II of the National Collective Labour Agreement), accused by her employer, to which she was an employee since 2008, of unjustified absence from 1 September to 19 October 2016. Therefore, the same employee had been dismissed for disciplinary reasons without notice. The company argued that the worker had not notified her superiors and validly justified her absence.

During the contestation period, in fact, the employee was in Morocco and, to justify her absence, she had sent the employer two medical certificates, properly translated into Italian, but without an “Apostille” so that they lack the formality required by the Hague Convention in order to certify the authenticity of the act’s signature, the capacity in which the act had been signed and the legitimacy of the seal or stamp.

At first, the Court of Appeal declared illegitimate the dismissal of the employee and invalidated it, ordering the employer to reinstate the employee in the workplace. Moreover, the District Court of Florence stated that the medical certificates were under the Hague Convention of 1961 and so any legalization was not necessary. The Court considered that the lack of legalisation of medical certificates could not be attributed to the negligence of the worker since the Hague Convention had been implemented by Morocco on 14.8.2016, only a few days before the aforementioned unjustified absence.

3. The judgment of the Court of Cassation: Apostille is compulsory on foreign medical certificates

The Civil Cassation, Labour Section, by Ordinance no. 24697 of 11 August 2022, considered that in the case of dismissal for unjustified absence of the worker, the medical certificate drawn up abroad by a foreign doctor, without the Apostille, that is, the formality required by the Hague Convention of 5 October 1961, or, alternatively, the legalization by the local Italian diplomatic or consular representation, has no legal value in Italy, and is, therefore, unsuitable to justify absence from work.

In the ruling, the Court of Cassation considers justified the pleas in law of the company, stressing that the Apostille is necessary as it certifies that the act is emanated by a qualified person working in the healthcare sector as well as the diagnosis and prognosis of disease as attested by a competent subject.

The Apostille is therefore a certification that affects the formal and substantial authenticity of a document to be used with legal value in a foreign country.

The Court has already specified in the past that, “based on of the Convention abolishing the requirement of legalization of foreign public documents, adopted in The Hague on 5 October 1961, and ratified by Italy with Law no. 1253 of 1966, exemption from legalization is conditional on the issue, by the authority designated by the State to edit the act, of a special “Apostille”, to be affixed on the act itself, or on an “allonge”, according to the model annexed to the present Convention. In the absence of such legal formality, the Italian judge cannot certify the authenticity of mere certifications coming from a public official of a foreign State, although adhering to the Convention”.

Regulatory Framework

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