The Court of Cassation, with judgement 18887 of 15 July 2019, declared illegitimate the dismissal of the worker who refused to work on a day during the week when there was a holiday celebrating a civil event.
Facts of the case
In this specific case, a company, faced with the refusal of one of its employees to work on 1 May, carried out disciplinary proceedings against them, which ended with an injunction to dismiss for just cause.
The worker thus appealed to the judicial authority for it, among other things, to declare the dismissal unlawful and to order the company, his former employer, to reinstate his job and to pay him compensation commensurate with his total remuneration from the moment of withdrawal to the day of actual return.
The Court of Appeals with territorial jurisdiction, overturning the judgement of first instance, converted the employer’s withdrawal into “dismissal for justified subjective reason”, sentencing the company to pay compensation in lieu of notice.
The courts based their decision, inter alia, specifying that: (a) under the provisions of the industry national collective bargaining agreement it was possible for employees to be required to work on public holidays, obviously within the limits established, the exceeding of which, in the present case, was not documented; (b) the classification of insubordination noted in the court of first instance relative to the conduct of the worker was correct but, since it was not carried out in a violent manner and there was no serious harm to the company, the dismissal should have been adopted for justified subjective reasons and with notice.
The employee appealed to the Court of Cassation against the decision of the Court of Appeals.
The decision of the Court of Cassation
The Court of Cassation, in upholding the employee’s appeal, observed that the courts had erred in ordering the obligation to work on 1 May on the basis of a mere interpretation of the industry national collective bargaining agreement, which contains a general reference to holiday work. This is because Law 260/1949 takes precedence.
According to the Court, this law is complete and self-sufficient in recognising the worker’s right to refrain from working on certain festivities celebrating religious and civil events, with the exclusion, therefore, of any analogical additions of mixing it with other disciplines.
Also according to the Court, only persons employed by public and private health institutions are obliged to provide services during events, such as 25 May and 1 May, provided that the needs for service permit rest time. Otherwise, the employer may not unilaterally waive the use of the rest period, even if it depends on production requirements.
Moreover, the worker’s right to abstain from work during midweek holidays celebrating civil events is a subjective right and is replete with a general nature.
This right cannot, therefore, be undermined by the employer, to be able to renounce to the rest period during the midweek holidays only by virtue of an individual agreement or an agreement stipulated with the trade unions to which the worker has given an explicit mandate.
On the basis of these principles, the Court of Cassation concluded that the dismissal of the worker, with all the legal consequences, was unlawful.
In reference to the so called Riders – a hot topic that has heated up recent public debates after a few case law rulings and the “exchange” of opinions between the government and several companies operating in the delivery service sector – employers organisations Confetra, Fedit, Confartigianato Trasporti, Cna Fita, Casartigiani, Claai and workers’ unions Filt-Cgil, Fit-Cisl, and Uiltrasporti signed an agreement on 18 July 2018. According to said agreement, workers’ who would accept goods for delivery via bicycles, motorbikes and scooters (Riders) will be covered by the National Collective Bargaining Agreement for Freight Forwarding, Logistics and Shipping. More specifically, Riders will fall under professional category C related to the regulations governing travelling personnel to whom travel allowance is not due. These workers are assigned a specific remuneration parameter and a work hour limit of 39 hours, distributed over a maximum of 6 days in a week and with outstanding balances over a period of 4 weeks. In any case, the overall work hours cannot exceed 48 hours, including overtime and a flexible week is established for weekly rest. In addition, it was resolved that personal protection equipment such as helmets and vests, be provided by the companies and that Riders be eligible for all the insurance and social security coverage established by the law and by the National Collective Bargaining Agreement. The agreement regulates also part-time work and internships and establishes second level negotiation.
Article 15, paragraph 1, letter a) of the Law No. 81 dated 22 May 2017(the so-called Jobs Act of Self-Employed Individuals), published in the Official Gazette on 13 June 2017 and entered into force on 14 June, in discussing the contract for continuative and coordinated services, introduced, leaving unchanged what was established in Legislative Decree No. 81/2015, a clarification of art. 409, No. 3, of the code of civil procedures. Specifically, it is established that services “are understood as coordinated when, in compliance with the coordination arrangements established in common agreement between the parties, the worker organizes his or her work independently“. This means that a “co.co.co” is in place whenever the parties, while agreeing on the coordination arrangements, leave full autonomy to the worker on how to carry out the assignment.