The Italian Court of Cassation, in its recent judgment no. 10802 of 21 April 2023, ruled once again on the timeliness of the communication of the dismissal, ruling that breach of the deadline established by the collective bargaining agreement for the adoption of the final provision of the disciplinary procedure may constitute a breach of the procedure referred to in Article 7 of the Italian Workers’ Charter (Statuto dei lavoratori).
This breach – where the sanction is a disciplinary dismissal – will result in the application of the protection provided for by Article 18, paragraph 6, Italian Law no. 300/70 (so-called ‘tutela indennitaria debole’ or reduced compensation), provided that the delay in communicating the dismissal is not significant and unjustified, on the basis that the principle of timeliness is one of substance and not just formality. These factors will be assessed by the trial judge on the facts.
The facts of the case
The procedural matter originates from the dismissal for just cause of which notice was given to an employee after the deadline set by the Poste Italiane CCNL applied to the employment relationship. The contractual provision established that ‘the communication of the ruling must be sent in writing to the worker within and no later than 30 days from the deadline for the presentation of the grounds, failing which the disciplinary procedure is considered to have been concluded’.
In the specific case, the company had sent the dismissal notice for the first time by registered letter within the terms set by the CCNL, but, having incorrectly indicated the recipient’s address, service was not considered to have been effected. Subsequently, the company, ten days after the deadline set by the CCNL, served the notice at the correct address through court officer.
As part of the trial on the merits, it was ascertained that the employee, several years earlier, had provided her residence address to the company’s human resources department, and asked to receive company communications at that address.
From these circumstances it was therefore ascertained that the sending by the Company of the first dismissal letter to an address that did not correspond to the one indicated by the employee could not be considered blameless.
Consequently, on the basis of the aforementioned provision of the collective agreement, the trial judges established that failure to comply with the deadline for sending the dismissal letter led to the closure of the disciplinary procedure, with consequent application of the reinstatement protection provided for by Article 18, paragraph 4, of Italian Law no. 300/1970.
The appeal to the Italian Court of Cassation and the decision taken by that Court
The company appealed to the Italian Court of Cassation against the decision taken by the Court of Appeal, putting forward two different grounds of appeal against the second instance judgment.
The first ground of appeal related to the alleged timeliness of the sending of the first dismissal letter, which should have been considered successful and knowledge of the contents of the document considered to have been received, despite the erroneous indication of the house number.
On a separate basis, the Company challenged the reinstatement ordered by the judges on the merits, noting that failure to comply with the final deadline certainly did not imply ‘in itself the rebuttal of the facts of which the worker has been accused nor the presumption iuris et de iure of their positive evaluation by the employer nor the exercise of the disciplinary power by acquiescence, since the delay could well be exclusively attributable to a mere (albeit culpable) error’.
The Italian Court of Cassation rejected the first ground of appeal finding that the ineffective service was attributable exclusively to the company. The Court excluded the possibility that sending a notice of dismissal, which was ineffective for reasons attributable to the employer, could not have an effect on the right being time-barred.
With regard to the second ground of appeal, the Italian Court of Cassation recalled judgment no. 30985/2017 of the Joint Divisions, regarding the principle of timeliness that characterises the disciplinary procedure and the sanctioning consequences in the regime under Italian Law no. 92/2012.
In that case the Joint Divisions noted a conceptual distinction between the ‘breach of rules governing the methods of carrying out the entire procedure in its various phases and the breach of the general substantive principle of the timeliness of the challenge when it takes the form of a significant and unjustified delay’.
In the specific case, the Italian Court of Cassation ruled that the decision taken by the Court of Appeal conflicted with the principles established by the Joint Divisions, according to which failure to comply with the terms set by the collective agreement for service of the letter of dismissal constitutes a procedural breach and gives rise to the sanction of compensation under Article 18, paragraph 6. The court held that greater protection for the employee can only be granted in the event of a significant and unjustified delay in the notice of dismissal, in common with the disciplinary charges, capable of infringing not only the formal but also the substantive principle of timeliness.
In conclusion, in accepting the appeal filed by the Company, the Italian Court of Cassation quashed the appealed judgment, referring the case to the Court of Appeal sitting with a different composition for the re-examination of the specific case in the light of the principle of law provided by the Court of Cassation judges.
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On 29 December 2022, Italian Decree Law No 198/2022 was published in the Italian Official Gazette. This is the so-called ‘Milleproroghe Decree’ which introduces ‘Urgent provisions regarding legislative deadlines’. Article 9 of the above-mentioned Decree governs the extension of deadlines for provisions on matters within the competence of the Ministry of Labour and Social Policy.
The following provisions, in particular, are worth noting:
The jurisdiction attributed exclusively to employment consultants and to the relatively most representative employment consultants and employers’ associations with regard to the verification of the requirements concerning compliance with the requirements of the collective agreement and the eligibility of the number of requests for entry by non-EU citizens is extended throughout 2023.
The deadline by which already established solidarity Funds must adapt to the reform of social security nets introduced as of 1 January 2022 by Italian Budget Law 2022 (Legge di bilancio – Law No 234/2021) is postponed from 31 December 2022 to 30 June 2023.
Consequently, the date from which, in the absence of adaptation, the employers in the relevant sector will join the Wage Guarantee Fund (Fondo di Integrazione Salariale, ‘FIS’) is postponed from 1 January 2023 to 1 July 2023.
With reference to companies falling within the scope of application of the Wage Guarantee Fund for the Air Transport Sector and the Airport System, applications for access to the supplementary benefit under the Extraordinary Wage Guarantee Fund (Cassa integrazione guadagni straordinaria, ‘CIGS’) scheme, submitted between 1 January and 30 September 2022, are considered validly transmitted, even if received after the deadline has expired.
In addition, it is provided that supplementary benefits under the CIGS scheme may also be provided in the form of reimbursement or adjustment to the employer that advances them.
Apart from Article 9, the extension regarding the reform of sports employment should be noted.
In this regard, the decree has deferred the entry into force of the sports employment reform by six months, which is postponed from 1 January to 1 July 2023.
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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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