DLP Insights

Straining occurs when the harassment is not continuous and there is no malicious intent on the part of the employer

Categories: DLP Insights, Case Law | Tag: Corte di Cassazione

29 Nov 2022

With order No 32020/2022, published on 28 October 2022, the Italian Court of Cassation, IV civil section, expressed its opinion on the distinctive features that differentiate straining from mobbing.

The proceedings arise from the appeal presented before the Court of Paola by a municipal employee who complained of having been subjected to malicious conduct by the employing authority and of having been demoted through removal of her position as manager, which was then assigned to another employee, with a consequent application for an order against the employer for compensation for the pecuniary and non-pecuniary damage suffered.

The application was rejected both in the first and in the second instance proceedings, since, according to the local court, the removal of the employee’s position was a result of the reorganisation of the authority and its managers and, in any case, the applicant had neither alleged nor proved the existence of malicious intent by the employer against her.

The employee therefore appealed the judgment to the Italian Court of Cassation.

In particular, according to the employee, the local court, while denying the presence of mobbing, should in any case have recognised conduct which substantially deprived her of her duties. This would then have placed the consequent burden on the appeal judge, once the presence of malicious intent was excluded, to evaluate whether, on the basis of the evidence deduced, other circumstances made it possible to presume the presence of an unknown minor damage, such as that caused by straining.

In rejecting the employee’s appeal, the Italian Court of Cassation, with the order in question, took the opportunity of summarising the Court of Cassation case law on mobbing and straining.

As far as straining is concerned, the Court pointed out that, under Article 2087 of the Italian Civil Code, the employer is required to refrain from initiatives that may harm the fundamental rights of the employee through the adoption of ‘stressful’ working conditions (so-called straining).

Therefore, the judge on the merits, even if he or she decides that there is not sufficient malicious intent to unify the episodes so as to constitute mobbing, is required to evaluate whether, from the evidence deduced – due to its characteristics, seriousness, personal or professional frustration, other circumstances of the actual case – can be presumed to be traced back to the existence of this unknown minor damage (Italian Court of Cassation, Section L, No 3291 of 19 February 2016).

Furthermore, according to the Italian Court of Cassation, the Court of Cassation case law accepts that the straining phenomenon, which constitutes an attenuated form of mobbing, but in the absence of continued harassment, can only be advanced on appeal if, in the first instance application, the same facts have been alleged and identified as mobbing (Italian Court of Cassation, Section L, No 18164 of 10 July 2018).

Therefore, according to the order in question, in the abstract, the local court could have made a finding as to the occurrence of straining instead of mobbing. In the present case, however, the Catanzaro Court of Appeal, regardless of any consideration regarding the malicious intent, also excluded the unlawfulness of the conduct which, according to the employee’s submissions, would have constituted the objective element of the contested offence.

Finally, the order in question underlines how, according to Court of Cassation case law, the so-called strainingexists when the employer adopts initiatives that may harm the employee’s fundamental rights through ‘stressful’ working conditions and not where the difficult situation is caused and exacerbated by the change of job position as a result of the reorganisation and restructuring processes that have involved the entire company (Italian Court of Cassation, Section L, No 2676 of 4 February 2021).

In the light of the above considerations, the Italian Court of Cassation rejected the appeal filed by the employee.

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