The Supreme Court of Cassation, by Order no. 17167/2020, considered the personnel selection process that requires involved candidates to produce their criminal status certificate as lawful.
The facts in question regard a company’s failure to hire a candidate who had previously worked there with a temporary employment contract. Specifically, the worker, at the end of the first contract, had manifested his interest in a different position for which he had undertaken the selection process, signing a “declaration form identifying the job of interest.” He confirmed in it, among other things, that the hiring would have been subject to the presentation of all of the documentation required by the sector NCLA. The criminal status certificate was included in the documentation requested by the company, that the employee refused to submit.
The Court and the Court of Appeal petitioned by the worker had found that the sector NCLA did not list the criminal status certificate among the documents to submit during the selection phase. In light of this the company could not have considered the submission of criminal status as a prohibitive condition for hiring the candidate.
Objecting to the lower court’s ruling, the losing company appealed to the Cassation Court.
The Court of Cassation took a different position in relation to the lower court judges, confirming that the employer must always be allowed to make a free evaluation of the suitability of a candidate to fulfil the duties for the position to be filled. The employer determination of the requirement of submission of criminal status, according to the Cassation judges is lawful, it is “consistent with the general principles of fairness and good faith which govern even the performance of the precontractual phase concerning employment”. Therefore, recognition of the right to verify the suitability of the candidate cannot be limited by the lack of specific provision in the national collective bargaining agreement applied to the case in question.
Thus, the Court of Cassation recognised the company’s decision not to continue with hiring the candidate as lawful, due to the failure to deliver the criminal status certificate. This is due to the fact that the latter would not have been in possession of the suitability requirements to meet the reliability needs necessary for filling the vacant function.
Hence, according to the Court of Cassation judges, the employer may unilaterally formulate the request to submit certain documents as long as they are functional for evaluation the suitability or lack thereof of the candidate in relation to the position to fill. This determination is not contrary to the principle of fairness and good faith which must also govern the precontractual phase of the selection process.
Other insights related:
The requirements relative to the processing of special categories of data have been issued
On 15 September 2020, the ASSODELIVERY and UGL-RIDER trade associations signed the first National Collective Bargaining Agreement governing the work contracts of Bike Delivery Riders, also known as “Riders”.
Regardless of any remark as to trade representation issues currently bringing about considerable debate, the agreement, called “National Collective Bargaining Agreement for governing the delivery of goods on behalf of third parties, carried out by self-employed workers, the so-called Riders”, has been reached after almost a year following the entering into force of Law No. 128/2019 introducing the first measures for the protection of “gig economy” workers.
Riders have agreements which, according to the signatories, must be traced back to the scope of self-employment. Indeed, article 7 of the National Collective Bargaining Agreement defines riders as “self-employed workers who, based on a contract with one or more platforms, decides whether to render its own delivery services for the goods ordered through the relevant application”.
Amongst the main measures provided, one may count the acknowledgment of a minimum guaranteed fee, bonus systems, safety equipment, insurance coverage, prohibition to discriminate and equal opportunities, personal data protection and trade union rights excluding, at the same time, the typical institutions of employment from arising such as, for instance, remuneration for overtime, additional monthly payments, annual leave, severance pay.
Let us discuss the main institutions in detail.
As regards those aspects of economic nature, the National Collective Bargaining Agreement foresees the acknowledgment of a minimum fee (Euro 10 per hour) to riders, calculated based on the “estimated” time for making deliveries which, if less than an hour, shall be thus re-parameterised in proportion to the “estimated” time for delivery. Such fee shall in no way be less than Euro 7 for the first 4 months as from commencement of the delivery service in a new city.
Furthermore, the fee shall be increased to a variable extent from 10% to 20% depending on whether the activity is carried out during night hours (from 0:00 to 7:00), holidays (amongst which Sundays are not included) or during the days in which the weather conditions are “bad”.
Instead, to motivate bike delivery riders the National Collective Bargaining Agreement introduces a bonus system pursuant to which the companies must acknowledge a lump-sum bonus to each Rider equal to Euro 600 each 2000 deliveries throughout the solar year (up to a maximum of Euro 1,500 per solar year).
The agreement does not only govern economic aspects, but also aims at protecting the health and safety of bike delivery riders, ensuring them that the provisions under the Health and Safety Consolidation Act under Legislative Decree No. 81/2008 are applied to them and that they participate to specific training courses.
Pursuant to the National Collective Bargaining Agreement, delivery companies must provide Riders with safety equipment, such as high visibility clothing and a helmet, to be replaced with fixed regular intervals.
Finally, by “regulating” a practice which is already spread in part, the principal must take out insurance coverage for any accident at work and professional illness, as well as for any possible damage to things or people caused in carrying out the respective activity.
Finally, in so far as the termination of the agreement is concerned, Riders are entitled to unilaterally withdraw from the contract at any time with immediate effect, whilst the principal is requested to abide by a withdrawal notice of at least 30 days (save for the case of breach of contract for wilful misconduct or gross negligence) or, alternatively, to grant them with an allowance equal to half the remuneration received.
Others Insights related:
The Court of Cassation, with its ordinance no. 9789 of 26 May 2020, stated that the clause of the individual contract establishing a probationary period agreement longer than that established by the sector collective bargaining must be considered more unfavourable for the worker. Therefore, it must be replaced by law according to art. 2077, second paragraph of the Civil Code, unless extension results in an actual favourable position for the worker, with the burden of proof placed on the employer.
Facts of the case
The court case is based on an appeal filed by a worker to establish the invalidity of a 6 month probationary period added to the employment contract before the worker left for Colombia, since it was longer than that of the reference NCA.
The judge of first instance and the Appeal Court rejected the worker’s petition asserting that the longer probationary period appeared justifiable considering the greater difficulty of hiring the employee in a work context in a different country far from Italy.
Thus, during the trial phase, the exceptional and detrimental clause of the probationary period duration included in the individual employment contract compared to the reference NCA was considered lawful since it was sustained by plausible reasons.
The losing worker thus appealed to the Court of Cassation for reversal of the ruling.
The Supreme Court of Cassation’s decision
The assigned Supreme Court, in reference to the complaint related to the duration of the probationary period, first explained that it already had been able to confirm “with ruling no. 8295 of 2000, that the clause in the individual employment contract which included a probationary period longer than the maximum contained in the collective contract applicable to the employment – without prejudice to the six month limit as per art. 10 of law no. 604 of Law 1966 – this clause may be deemed legitimate only where the particular complexity of the duties agreed for the employee makes it necessary, for the purposes of a valid test, and in the interests of both parties, to have a longer period than that considered reasonable by the collective parties in the generality of cases; the employer bears the relative burden of proof, to whom the longer duration of the probationary period attributes a greater right to dismissal for failure to pass the probation”.
The Supreme Court added to this stating that for the validity and lawfulness of the probationary period, national legislation requires it in writing ad substantiam. This burden is to protect the weaker contractual party – the worker – and to ensure that at the most he can be restricted by a probationary period of a minimum duration or at any rate not longer than the period strictly necessary for verification of his professional technical ability. (Cass. 5 March 1982 no. 1354; Cass. 25 October 1993 no. 10587). Thus the result based on the Cassation judges, “in principle, the invalidity of agreements aimed at extending the duration of probation compared to that determined by social partners”.
The Court concluded that, in the case in hand, the clause attached to the contract containing a probationary period longer than that established by collective bargaining of the sector is unfavourable for the worker and, as such, must be replaced by law according to art. 2077, second paragraph, of the Civil Code. In this case the employer did not demonstrate the reasons supporting the longer probationary period compared to that of the reference NCA.
Based on all of the above, the challenged ruling of the Appeal Court was overturned in relation to the upheld motive, with referral to the Appeal Court of Bologna in a different formation, to re-examine the merits based on the principles stated above.
Other related insights:
