With ordinance n. 39816/2023 the Court of Rome, Section Lavoro, he expressed his opinion on the case of a nurse, an employee of a Nursing Home, fired “on the spot”, she too for refusing to perform tasks that do not fall within her professional profile.
In particular, the nurse had received three disciplinary charges during the year:
- for failure to communicate in advance and justification of the absence, which ended with suspension from work and salary for three days;
- for refusal to change a diaper and to accompany a patient to the bathroom, which ended with suspension from work and salary for three days (decision not challenged and in any case not subject to the proceedings);
- for refusing to close the window of the cardiology department, despite the request of a patient who ended up with suspension from work and salary for ten days. Whistleblowers have expressed themselves on this point, with conflicting statements.
A fourth disciplinary challenge followed against the nurse for refusing to accompany a pneumonia patient with a previous syncopal episode to the bathroom, which, also due to the specific multiple recurrence, ended with dismissal. Informants were also heard about this episode.
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The Court, following a specific investigation, specified that “all the facts underlying the four disputes examined actually took place within the terms disputed in the disciplinary proceedings”.
And that therefore “a first reason in support of this decision is constituted by the recurrence of the conduct contested in the provisions from the second to the fourth: in all these cases a generic non-compliance was not repeated but a specific conduct which led to the refusal of the worker to carry out a service on which the safety and dignity of the hospitalized person depends, who has not been accompanied to the bathroom despite needing to (episodes of 8 February and 14 November 2021) or has not been changed in diapers (episode). Another element that connotes the seriousness of the conduct is the effects that these behaviors determine on particularly vulnerable subjects, who, precisely because of their condition, are entrusted to the care of the facility in which they are hospitalized”.
In support, the Court reports a particularly significant episode “which concerned the lady suffering from respiratory insufficiency, to whom the appellant did not close the window despite the fact that the patient was cold due to the external temperature, such that she could even cause harm to his health […].
The applicant’s refusal is serious not only because it contravenes the surrender, but because it gives rise to a feeling of uncertainty and mortification in a weak person who is necessarily dependent on her”.
With reference to the alleged legitimate refusal not to perform duties deemed inferior, the Court clarified that “we are not here in the presence, as the defendant observed, of attributions of inferior duties to which the appellant would have been permanently and predominantly assigned, such as to justify his refusal to fulfil, as instead of punctual and co-essential tasks to the same function of assistance and care for the person hospitalized in the structure, for which the refusal is not justified in any way”.
The Court, therefore, concluded for the legitimacy and proportionality of the employer’s decision to terminate the employment relationship with the worker.
NurseTimes editorial team
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