According to the Court of Appeal, the employer is responsible for proving earnings from other work (Il Quotidiano del Lavoro de Il Sole 24 Ore, 21 ottobre 2019 – Enrico De Luca, Antonella Iacobellis)

The Court of Appeal, by ruling no. 25355 dated 9 October 2019, stated that employers that claim earnings from other work or sources to be deducted from the compensation due to employees are required to enclose specific factual circumstances and to provide timely specifications, proving general requests for evidence or requests for evidence for purely investigative purposes to be inadmissible. The background that the Supreme Court examined was, essentially, as follows. A claims adjuster was dismissed by the insurance company he worked at as a result of disciplinary proceedings against him for having committed grossly negligent conduct. The employee had specifically been challenged for not having carried out, in 18 instances, all the preparatory and preliminary activities necessary to ascertain the actual occurrence, as well the dynamics of the events relating to claims and the consequent reported injuries. The Court of Cosenza had rejected the opposition pursuant to Article 1, paragraph 51, of Law 92/2012, proposed by the employee and by the insurance company against the order issued in the summary phase. In partial acceptance of the appeal against the dismissal, the employment contract was thereby declared terminated and the insurance company was ordered to pay compensation equal to 20 monthly salaries of the final overall de facto remuneration. The insurance company filed a complaint on appeal and the employee entered an appearance by proposing a cross-appeal. The District Court considered the 18 disputed incidences, noting, however, that “the considerable workload allocated to the employee led (in any case) to the irrecoverability (editor’s note: had in any case led to the irrecoverability) of the knowledge of the anomalies which, indeed, had been (allegedly) identified, by the employer, only following a costly and worthwhile investigation”. The jurisdiction of the local Court of Appeal accepted the employee’s cross-appeal and nullified the imposed dismissal, ordering: – on the one hand, the insurance company to reinstate the employee, sentencing it to pay, from the date of dismissal to the date of reinstatement, the social security and welfare contributions, plus interest – and, on the other hand, the employee to return the sum equal to 8 monthly salaries of the overall de facto remuneration, plus ancillary costs, fully paid up. Furthermore, the Court of Appeal rejected the objection to payment of earnings from other work or sources raised by the employer, claiming that “specific elements, capable of accounting for less damage to be compensated” were not offered. The insurance company filed an appeal against this ruling on four grounds and the employee challenged it with a counter-appeal. As far as we are concerned we only report the fourth ground of appeal with which the insurance company claimed the “omitted and/or insufficient grounds regarding a controversial fact is decisive for the judgement; the criticism refers to the rejection of the exception of earnings from other work and sources; the appellant party accuses the Court of Appeal of not having carried out the necessary investigations in this regard, as, however, it was obliged to do”. The Supreme Court, upon rejecting the aforementioned ground of appeal, stressed, inter alia, that the Court of Appeal had correctly applied the principle of law, according to which “employers that claim earnings from other work or sources to be deducted from the compensation due to employees are required to enclose specific factual circumstances and, in order to fulfil their related burden of proof obligation, they are also required to provide timely specifications, proving general requests for evidence or requests for evidence for purely investigative purposes to be inadmissible (ex plurimis, Court of Appeal No. 4999 of 2017)”.

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