With its ruling no. 3724/2022, filed on 2 February, the Court of Cassation held that an employer who “warns” staff that they may lose their job to force them to accept financial conditions that do not match the services they provide was extortion.
Facts of the case
Two employees brought an action against their employer, operating in the hotel sector, claiming the crime of extortion, as they had been forced to accept unfavourable remuneration, on pain of dismissal.
The Courts (first the Sulmona Court and then L’Aquila Court of Appeal) rejected the appeal brought by the two employees, ruling out the possibility of the crime of extortion due to the absence of any threat element.
The second instance ruling highlighted that the employees were required to work beyond their regular working hours, almost continuously (even for twenty hours a day), carrying out tasks other than those contractually agreed. The employer also harassed them. The judges stated that the two employees could discontinue the employment relationship or respect the (unfair) working conditions. Further, they said they were not vulnerable given the hotel sector’s financial situation and because they came from a wealthy family.
The employees appealed to the Court of Cassation against the Court’s decision.
The Court of Cassation’s ruling
In upholding the two employees’ appeal, the Court of Cassation stated the appealed ruling did not consider that “threat” implies that the choice of conduct is left to the victim. This assumption wasbased on theknowledge that if they behaved differently from what was demanded by the active party (i.e., the employer), the consequence would be a predicted injustice.
Therefore, the choice of the conduct to be adopted is left to the passive party (i.e. the employees) cannot exclude the threat or extortion existence.
This overcame the Court of Appeal arguments centred on the belief that the employer had not contemplated dismissal but stated that anyone who did not like the working conditions was “free to leave.” According to the Court of Cassation, this statement gives the employee the alternative of accepting the working conditions imposed by the employer or losing their job, and it is irrelevant that this could be a “voluntary” decision. Such conduct is criminal because the working conditions indicated as an alternative to losing one’s job were unfair and unlawful.
The Court of Cassation affirmed the legal principle that an employer taking advantage of the favourable situation in the labour market due to supply over demand forced workers to accept, using a masked threat of dismissal, a worse remuneration which was not commensurate with the services provided, was extortion.
The Court of Cassation said the injured party’s subjective condition was not required to establish an offence. The latter takes place when the employer foresees the loss of the job, taking advantage of the natural condition of prevalence they have over the employee and the favourable market conditions.