The employer must prove the national collective bargaining agreement that it considers applying

The Court of Cassation, under ruling no. 22367/2019, reiterated a well-established view that, although the choice of the type of applicable national collective bargaining agreement is a matter for the employer, the latter must express and prove its decision unequivocally.

Facts of the case

The case in question concerns the dismissal of a worker at the end of a continuous period of illness lasting 237 days, justified as having exceeded his sick leave.
Both the Court of First Instance and the Court of Appeal with territorial jurisdiction had agreed that the service industry (collective agreement in force at the time of employment), which provided for sick leave of 180 days, could not be applied to the employment contract in question. The Confail Confimea collective agreement, which provided for sick leave 365 days, was considered applicable. According to the courts of first instance, the company had not proven its membership to Confcommercio nor could the references reported in the letter of employment and payslips be considered sufficient to prove said membership, given that the company had not produced the National Collective Bargaining Agreement of the service industry. The courts of first instance – given that the collective agreement of reference, for the purposes of identifying that the sick leave is that in force at the time of dismissal – also considered the National Collective Bargaining Agreement invoked by the worker to be applicable to this case. The dismissal was declared unlawful and the company was ordered to reinstate the worker and pay compensation under Article 18 of Law No 300/70.

The company appealed to the Court of Cassation against the decision of the Court of Appeal, relying on two pleas.

The decision of the Court of Cassation

The company pleaded:

• with the first plea, that the courts of first instance had not considered the well-established principle that the employee must prove the existence and enforceability of the collective agreement claimed and
• with the second pleas, that said courts had not considered the worker’s explicit admission as to the applicability to the employment contract of the National Collective Bargaining Agreement for the service industry.

The Court of Cassation declared both pleas unfounded.

Firstly, the Court of Cassation pointed out the principle according to which collective bargaining agreements that have not been declared effective “erga omnes” pursuant to Law no. 741 dated 14 July 1959, apply only to individual contracts between persons registered with the stipulating associations or between persons who have expressly adhered to the collective agreements and have implicitly accepted them through conclusive conduct, reflected in the constant and prolonged application of the relative clauses to individual contracts (please see Cass. 10632/2009).

Furthermore, with reference to this principle, the Court of Cassation observed that, if one of the parties refers to a clause of a given National Collective Bargaining Agreement that is not effective “erga omnes“, basing itself on the importance that both have always been inspired by it to govern their contract, the court of first instance is responsible for specifically assessing the conduct of the employer and worker (please see Cass. 10213/2000).

In addition, the Court of Cassation confirmed that the employer, in the event of an appeal against a dismissal, must prove, pursuant to Article 5 of Law 604/1966, the facts constituting the legitimate exercise of the power of dismissal which, in this case, also includes the exceeding of sick leave under the terms of the collective bargaining agreement of the applicable sector.

In view of all the above, the Court of Cassation, in confirming the decision on the merits, pointed out that the company had not proven its membership of Confcommercio, nor had it been a consortium member and/or a member of Federdistribuzione – circumstances that could have proven the applicability of the National Collective Bargaining Agreement of the service industry.

Also  according to the Court of Cassation, the courts of first instance also correctly considered it unsuitable to prove the applicability to the present case of the National Collective Bargaining Agreement of the service industry, its reference in the employment contract or in the payslips bearing the references of institutions specific to that contract. Thus, the employer had never produced any specific bargaining agreement. Therefore, the National Collective Labour Agreement in force at the time of dismissal, i.e. the Confail/Confimea agreement, produced by the worker and more consistent with the company’s corporate purpose, must be considered applicable to the employment contract in the case in question, as can be inferred from the certificate f incorporation in the deed. The Court thus dismissed the company’s appeal.