Internal regulations: penalty clauses enforceable only if specifically accepted

The Supreme Court of Cassation, by Order no. 27422 dated 1 December 2020, established that the clauses of the national collective agreement stating that workers are required to respect not only the provisions contained therein but also those established in internal regulations does not automatically bind employees to the compensation obligation envisaged therein in the event of a violation of its provisions.

Facts of the case

In this case, a company had made a withholding from an employee’s pay packet in relation to reckless safekeeping of property after 56 tickets were taken from the same after a bag was stolen. This was done by virtue of a provision contained in an internal circular, previously communicated to employees, according to which they were obliged to compensate a certain amount in the event that tickets were stolen. In the company’s opinion, the provision was immediately applicable precisely by virtue of the reference made by the industry’s National Collective Labour Agreement to internal regulations, with which employees were required to comply. The Supreme Court of Cassation was not of the same opinion.

The Supreme Court of Cassation’s ruling

According to the Supreme Court, the indication of compensable damage in a circular or in an internal regulation for the violation of one of its provisions equates to a penalty clause which, as such, only binds employees in the face of their express acceptance.

In the opinion of the Supreme Court of Cassation, the penalty clause is a means of enforcing specific contractual obligations and constitutes an “agreed early settlement” of the damage deriving from their violation. The penalty clause presupposes, by its characteristics, a meeting of wills which the parties formalise in a deed, in the absence of which its application cannot be enforced. The establishment of the penalty does not fall among the employer’s unilateral powers, as its specific negotiation and formal approval are its irreplaceable presuppositions.

Therefore, regulations, circulars and service orders that envisage an obligation to compensate a certain amount, in order to be binding, may not simply be communicated or affixed to the company notice board. A deed of acceptance and adhesion from each individual worker is required.

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