In ruling no. 13063 of 26 April 2022, the Court of Cassation extended the scope of application of the reinstatement protection to cases where the contested fact is found to exist and is not among the offences punished by the sector’s collective agreement with a conservative penalty.

The Supreme Court extended the scope of the court’s assessment of proportionality, two weeks after the pronouncement of ruling no. 1165 of 11 April 2022. This ruling confirmed the applicability of reinstatement in cases where the conduct charged to the employee, (although not expressly included in the list of offences punished by the collective agreement with a conservative penalty), falls within the scope through the interpretation, by the court, of the general or flexible clauses included in the relevant collective agreement.

In this way, the judge re-acquired a wide margin for assessment on the proportionality between the contested conduct and the announced dismissal, in the same way as before the Fornero reform, when reinstatement was applicable in cases of lack of proportionality between the contested fact and the dismissal.

The court is given the power to assess – by means of a comparative judgment – the seriousness of the charge laid against the employee in relation to the seriousness that, according to the assessment, should be conferred to any of the other offences punished with a conservative penalty by the collective agreement.

The consequence is that, in this way, a new profile of uncertainty is reintroduced that concerns the interpretation outcome of the collective bargaining provisions, which are often generic and imprecise, and the outcome of the proportionality assessment between the conduct alleged against the employee and the list of offences set out in the relevant collective agreement.

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By decision 9/2022, the Court of Siena declared that the employer’s conduct prohibiting the centralisation of union leaves under the collective agreement (CCNL) predominantly or exclusively in favour of one or more members of a labour organisation is not anti-union if this causes intolerable absence from work. The Court ruled that freedom of association does not exempt a union from the general duties of political, economic and social solidarity. Like any other person, an LO must perform contracts in good faith, and the right to use union leaves – granted by the CCNL through a ‘sum of hours’, without stipulating anything about the manner of such use – meets precisely this limit of good faith. The conduct of the union which, by concentrating all or part of the leaves in favour of one or more members, causes them not to carry out their work obligations for a considerable period of time, cannot be considered in conformity with the principles of loyalty and fairness. In the Court’s view, the employer’s conduct is, on the other hand, anti-union when it does not allow the members of the RSU to enjoy equal parts of the leave in relation to the number of hours allocated

On 16 June 2021, Confcommercio Imprese per l’Italia and Manageritalia signed an agreement to extend the NCLA of 21 July 2016 until 31 December 2021. With the same agreement, the Social Partners have amended some Agreement provisions. The main changes include the maximum duration of the protected period, which is confirmed as 240 days in a calendar year, clarifying that “calendar year” means 365 days backwards from the last illness. In addition, from July 1th , 2021, the employer shall pay to an organisation called CFMT (Centro di Formazione Management del Terziario – Tertiary Management Training Centre), , a contribution of €2500 – if there is an employment relationship termination, including following a settlement agreement or conciliation, except in the case of termination for just cause, disciplinary dismissal, voluntary resignation and consensual termination – for the activation of an outplacement service or for access to active policy programmes aimed at outplacement of executives. New concepts are introduced about the  notice period commencement in case ofresignation or dismissal. The notice period for dismissal, from 1 July 2021 shall commence on the 1st or 16th day of each month, depending on whether the employer receives the resignation notice in the second fortnight of the previous month or the first fortnight of the current month, respectively.  Effective from 1 July 2021, the notice period for dismissal  shall run from the 1st or 16th day of each month, depending on whether the executive receives the dismissal notice in the second fortnight of the previous month or the first fortnight of the current month, respectively. The executive shall be entitled to receive their full remuneration for the portion of the month in which the dismissal notice was received.

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On 12 April 2021, the Palermo Court ruled that early withdrawal by a food delivery company from a fixed term cooperation agreement with a rider was invalid,  as it was the direct consequence of his refusal to accept the governing conditions of the collective agreement chosen by the company and signed by trade unions he had not joined. Citing supreme court case law on subjective effectiveness of collective agreements, the Court observed that under our industrial relations system a worker is not required to passively accept an unsatisfactory union agreement. The Court held that the company could only exercise early withdrawal in fairness and good faith, principles that were not observed as the termination was not “needed” and the non-continuation of the relationship evidently constituted “discrimination on trade union grounds”. The company was ordered to reinstate the worker at the same contractual conditions, pay the wages he would have received from unlawful termination to effective reinstatement and compensate non-material damage.

Under order no. 27757, published 3/12/2020, the Cassation Court confirmed that renewal of a National Collective Bargaining Agreement (CCNL) only signed by some employer associations, has no effect on application of clauses regarding pay even for companies that belong to non-signatory unions. In detail, a worker obtained an order for payment, part for failure to pay contractual increases in the sector CCNL and part due to the contractual increases in the renewed CCNL. The order was upheld in the first instance, while in the second it was revoked and the company sentenced to pay the difference between the amount of the order and the sum it paid to the worker as a one off for the settlement reached between the workers’ union and employers’ unions that had not initially signed the renewal. According to the Court, appealed to by the employer, in employment the remuneration under the CCNL acquires, as a general rule, a “presumption” of meeting the principle of proportionality and adequacy in the contract economic provisions including in internal relationship between the single compensations established therein.