ER Editor: The two cases outlined below, where nurses have taken their employers to court for suspending them without pay over the vaccination mandate in Italy and France, are somewhat different. Yet both are considered milestones in the legal battle to get our rights back.
Italian court sides with nurse wrongly suspended for refusing COVID-19 jab
The decision overturns precedents and enshrines in law the illegitimacy of dismissing or suspending employees without pay for failing to vaccinate.
PIERRE BORALEVI for LIFESITE NEWS
MILAN – A civil court has sided with a nurse who was suspended without pay after she refused the COVID-19 vaccine.
The ruling was given by the Tribunal of Milan on September 16, following the appeal of the Italian nurse, who was not named. She had been suspended without pay in February because she refused to receive the jab in defiance of a vaccine mandate imposed by her employer. The tribunal called the suspension “illegitimate” and ordered the employer to pay the nurse her full wages with interest and arrears. The decision overturns previous court rulings for similar cases.
It is the first time in Italy that a court of law has ruled in favor of an employee in a case of a suspension or a dismissal for failure to vaccinate.
The decision comes from one of Italy’s most authoritative courts and is considered particularly significant because it overturns precedents and enshrines in law the illegitimacy of dismissing or suspending employees without pay for failing to vaccinate.
“This was one of the first cases of suspension of a healthcare worker,” stated Mauro Sandri, the nurse’s lawyer, in an interview on YouTube.
Sandri compared the case to that of 5 nurses in a similar situation; they lost their appeal in May.
“Everyone [in Italy] will remember the ruling in Belluno, when 5 nurses who were suspended by their employer launched an appeal and lost it,” he said.
“The mainstream [media] amplified the outcome of that ruling by going so far as to say that it was pointless to appeal suspensions imposed by employers.”
Sandri then recalled that the ruling in that case was “unfortunately emulated by other tribunals, including Modena and Verona” and that “a jurisprudence had been created, giving employers license to suspend their employees.”
All of Sandri’s previous attempts to appeal such decisions had been unsuccessful. However, he sees that this new decision had overturned the trend.
“This decision was overwhelmingly positive, as it established the illegitimate nature of the suspension,” he said.
The nurse in question had been suspended since February and had not received any salary since that time. The court therefore ordered the employer to pay her salary for the full period in which she had not been compensated, with added interest, as Sandri pointed out.
“The appeal aimed at obtaining her reinstatement in the workplace (…) So we requested that, as well as a full payment of her wages, with arrears.”
The Italian lawyer is convinced that the new ruling will serve as case law for similar cases in the future.
“The court’s decision will certainly set a benchmark for future rulings,” Sandri said.
“It’s going to be a milestone (…). For me, it’s also going to be the basis for further cases that I have pending.”
The lawyer encouraged workers in similar situations after resisting pressure to take the vaccine to sue not only for lost wages but also for damages. Sandri described the scare-tactics and threats used by some employers who pressure their workers into getting vaccinated as a form of “bullying.”
“The same principle can be applied in many other situations where there is a vaccine mandate,” he said.
“Anyone employed at a company who has been unduly pressured to get vaccinated and perhaps suspended for not doing so thus becomes a victim of bullying.”
Sandri also sees the ruling as a hopeful development in the ongoing fight against the imposition of the “Green Pass” in Italy.
Non-vaccinated caregiver wins her case at the administrative court in Cergy
Since September 15, health professionals have been obliged to be vaccinated in order to practice their profession, and therefore to be paid.
Some have decided to resist and have tried to exploit the loopholes in the law. Here is an example: Sarah M., a medical electro-radiologist at the Cergy-Pontoise hospital (ER: this is north-west within the metro Paris region), was placed on sick leave on September 6 until September 22. Then, on September 15, in view of the government’s decisions, the human resources department of her hospital suspended her remuneration on the grounds that she did not provide the documents proving her vaccination.
Mrs. Sarah M. immediately filed an application with the administrative court of Cergy-Pontoise, requesting that the court suspend her management’s decision, considering that the days of work stoppage should be counted as having been carried out, thus giving the right to remuneration.
To defend herself, she invoked an emergency situation, “a serious and immediate attack on her standard of living that seriously affects the balance of her budget, given the composition of her household and her contribution to its expenses”. To do this, she provided the court with the necessary documents concerning her monthly expenses. Also, she attacked the legitimacy of this decision by relying in particular on: the Constitution; the European Convention for the Protection of Human Rights and Fundamental Freedoms; the law of August 5, 2021; as well as the non-respect of the procedure envisaged by this law.
Finally, Mrs. Sarah M. won her case in court and the decision rendered takes the following form:
The execution of the decision of the director of human resources of the hospital center […] of September 15, 2021 is suspended until the merits of its legality are decided.
Until then, she will receive her salary.
As the reasons for her initial work stoppage were not specified, and as her situation is not necessarily representative of all healthcare workers, the example of Ms. Sarah M. may not be legally applicable in a systematic way to other healthcare professionals.
Nevertheless, confirming that a public hospital employee cannot be suspended from his duties for not respecting his vaccination obligation when he is on sick leave, this order is a milestone in the judicial battle: declaring oneself on sick leave is a strategy that had been advocated by Fabrice Di Vizio in particular.