By judgment No. 450 of 13 June 2023, the Court of Appeal of Messina established that if an employer has not trained employees on the specific risks related to the tasks for which they are employed, sick days attributable to harmful working conditions do not count towards the protected period. This applies even if the employer has taken the necessary measures to protect workers’ health under the general obligation to protect their psycho-physical wellbeing under Article 2087 of the Italian Civil Code.
The facts of the case
The facts of the case stem from a claim brought by a physiotherapist who was dismissed for exceeding the maximum sickness period. The worker challenged the dismissal, arguing that 57 days had to be deducted from the protected period because the absence was attributable to carpal tunnel syndrome which developed through lifting immobile patients (tasks to which she was assigned).
The worker’s application was upheld at the preliminary stage and subsequently rejected by the Court of Barcellona Pozzo di Gotto on the ground that, although the absences were attributable to an illness attributable to her tasks, the employer had fulfilled the obligation to safeguard health under Article 2087 of the Italian Civil Code.
The worker therefore appealed against the decision of the Court of First Instance before the Court of Appeal, which overturned the judgment.
The Court’s decision
The Court of Appeal stated that the employer’s failure to comply with the training obligation prevented the days of absence from being counted towards the protected period.
In the Court’s view, it was not sufficient that the employer had complied with the obligation to provide information on the general and specific risks linked to the workers’ individual activities, since training has a further purpose, namely compliance with obligations to provide information.
In this context, the Court attached importance to the various “training” and “information” obligations by clarifying their differences. Training is the educational process necessary to acquire the skills for the safe performance of tasks, identifying, reducing and managing risks. Information, on the other hand, provides the knowledge necessary for the management, reduction and management of risks. According to the Court, ‘the former constitutes the indispensable framework for the latter to be meaningful’.
The training must, moreover, meet specific standards of adequacy, which require that the employer ensures that workers receive training tailored to the specific risks of each worker’s tasks. In this context, compliance with the obligation to provide information does not therefore replace the obligation to provide training.
Indeed, according to the Court, in the case in question it was highly probable that the worker, if she had been adequately trained, would not have had to undergo the operation, or would at least have had a shorter or less arduous course of treatment. This in turn would have reduced the number of sick days which would have fallen within the overall limit of 180 days over the three-year period.
This resulted in the breach of Article 2087 of the Italian Civil Code, which had a causal effect to the onset of the illness in the terms and times ascertained.
In this context, an employer’s failure to comply with the obligation to provide adequate training on health risks prevents days of absence from being taken into account when counting the maximum period of sickness.
Consequently, in the Court’s opinion, in the present case, the dismissal by the employer taking into account those absences was unlawful, with the consequent reinstatement of the worker in the workplace and compensation for damages, under Article 18 of Italian Law No. 300/1970.
Other related insights:
With the recent judgment No. 20284 of 14 July 2023, the Italian Court of Cassation ruled that, even though not specifically provided for in the disciplinary code, breaches by the employee of the fundamental duties underlying the employment relationship are valid grounds for dismissal.
The facts of the case
An employee working as a Level I salesperson was dismissed by the employer company due to his constant failure to meet the production targets periodically set by the company.
The employee challenged the dismissal before the Court, which – by comparing the results achieved by the employee with the targets set by the company schedules – confirmed the unequivocal poor production performance of the worker. Therefore, the Judge hearing the case declared the dismissal to be lawful, classifying it as dismissal for a justified subjective reason.
The worker appealed the ruling before the Rome Court of Appeal, where he argued that the dismissal was unlawful due to the failure to display the disciplinary code in the company.
In this regard, the Court, in upholding the judgment of first instance, held that the failure to display the disciplinary code in the company was irrelevant for the purposes of determining the nature of the dismissal, since the worker was charged with negligent and inexperienced failure to fulfil his obligations under the employment contract, and that the dismissal was based on the worker’s poor production performance resulting from his constant failure to comply with the work schedules previously established.
For the Court, moreover, for the purposes of assessing the seriousness of the misconduct, previous disciplinary records that indicate the worker’s repeated offences must also be taken into account.
The worker therefore challenged the judgment of the Court of Appeal before the Italian Court of Cassation.
The decision of the Italian Court of Cassation
When confronted with the issue, the Italian Court of Cassation confirmed the rulings of the lower courts on the lawfulness of the dismissal.
First of all, the Judges of the Italian Court of Cassation reiterate that the power to terminate the employment contract in the event of significant breach of contractual obligations stems directly from the law (Article 3 of Italian Law No. 604 of 1966) and does not require, in order for it to be lawfully exercised, a detailed provision, in the collective bargaining agreement or in the company disciplinary regulations, of every possible instance of conduct constituting the above requirement. Indeed, it is for the judge to verify, if the lawfulness of the termination is contested, whether the alleged incidents constitute a legal case of non-performance.
For this reason, continues the Court, even if not specifically provided for by the contractual provisions, serious breaches of the fundamental duties associated with the employment relationship constitute grounds for valid notice of withdrawal; in particular, those duties that underpin the existence of the employment relationship, such as the duties imposed by Articles 2104 and 2105 of the Italian Civil Code (obligations of diligence and loyalty) as well as those deriving from company policies.
Therefore, according to the Italian Court of Cassation, with regard to disciplinary sanctions, a distinction must be made between offences relating to the breach of specific rules concerning company organisation and production methods, which can only be recognised insofar as they are expressly provided for, and offences relating to conduct that is manifestly contrary to the duties of workers and the interests of the company, for which specific inclusion in the disciplinary code is not required.
With regard to the disciplinary code, the judges reiterate that it must, in any event, be drafted in such a manner as to make the cases of infringement clear, although by providing an outline and not a detailed description, and to indicate the corresponding penalties, albeit in a general manner and which can be adapted based on the actual and specific non-compliance.
Ultimately, therefore, the aforementioned judgments uphold the lawfulness of the employer’s termination of employment even where the alleged breach of contract does not constitute a case that is expressly set out in the company’s disciplinary code or in the national collective bargaining agreement, but takes place by infringing the duties underlying the employment relationship.
Other related insights:
By order No 11136 of 27 April 2023, the Italian Court of Cassation ruled on the subject of dismissal for exceeding the job retention period. The Court held that absences due to injury caused to the employee by things in the employer’s custody must be included in the protected period, if the employer is able to prove that accident prevention precautions were taken and the unforeseeable and unavoidable nature of the harmful event.
The facts of the case and the decision on the merits
The employee was employed under a local authority catering sub-contract and challenged her dismissal for exceeding the protected period. In support of the application, the employee submitted that, in calculating the absences taken into account for the purpose of the protection period, those resulting from the accident which occurred due to the explosion of a thermal display cabinet owned by the principal should not have been included.
The Court of Appeal of Venice rejected the appeal brought by the employee, confirming that, in the present case, the days of absence resulting from the accident had to be taken into account, since the absolute unforeseeability of the event had emerged during the proceedings. In addition, the lower court found that the contracting authority had delivered the equipment in good condition at the time of the contract and that it complied with the legislation.
The judgment of the Italian Supreme Court
The employee appealed to the Italian Court of Cassation against the decision of the Court of Appeal of Venice.
With particular reference to the issue of absences taken into consideration for the purpose of calculating the protection period, the Italian Court of Cassation, on the basis of its precedents, confirmed that the employee absences due to an accident at work or occupational disease are attributable, in principle, to the broad and general concept of accident or illness set out in Article 2110 of the Italian Civil Code. They are, therefore, normally included in the protection period.
In fact, for the absence not to be included in the protection period, the employer must be liable for the disease and its origin under Article 2087 of the Italian Civil Code.
Liability under Article 2087 of the Italian Civil Code, the Court pointed out, does not in fact represent strict liability, since it must be linked to the breach of obligations of conduct imposed by legal norms or suggested by experimental or technical knowledge of the time. In that context, therefore, the burden of proof lies with the employee who complains that he or she has suffered damage to health as a result of his or her work, to prove that damage, as well as the harmfulness of the working environment, and the link between them. Only if the employee has provided proof of these facts does the employer bear the burden of proving that accident prevention precautions have been taken and/or the unforeseeable and unavoidable nature of the harmful event.
Applying the aforementioned principles, the Italian Court of Cassation dismissed the appeal as the trial court had found that, in the present case, the wine cellar explosion was an unforeseeable event in view of the required standard of care and applicable safety precautions.
Therefore, the dismissal was held to be lawful, given the inclusion of the absences due to injury in the calculation of the protection period.
Other related insights:
Legitimate dismissal of an invalid worker for exceeding the protected period
By judgment No 12132 of 8 May 2023, the Italian Court of Cassation ruled on the subject of dismissal for justified objective reason. The Court specified that in the assessments of the possibility of relocating the employee before proceeding with the dismissal (so-called repêchage obligation), the employer is required to take into consideration not only the positions already vacant at the date of dismissal, but also those that will be ‘available in a period of time very close to the date of the announcement of the dismissal’.
The facts and the judgment on the merits
On 3 May 2011, an employee with the duties of Sales Manager, was dismissed because his position was redundant. The employee brought an application challenging the dismissal before the Court of Busto Arsizio. The employee sought reinstatement and compensation and also requested a determination that his employment relationship was also attributable to another group company.
The application was dismissed at first instance and on appeal.
A first appeal was therefore brought before the Italian Court of Cassation against the judgment of the Court of Appeal of Milan. This appeal concluded with the acceptance of this further appeal and a referral to the same Court of Second Instance, sitting with different judges, to rule on the objections raised on the subject of the repêchage obligation.
In particular, according to the Italian Supreme Court of Cassation, the Court of Appeal had not conducted the necessary investigations regarding the employer’s compliance with its repêchage obligation. The Court of Cassation recalled that the employer, in this regard, had the burden of proving: (i) the lack of available positions where it could feasibly relocate the employee and (ii) the absence of subsequent recruitment. The Italian Court of Cassation also pointed out that the finding of co-employment could be relevant in the context of an overall assessment of compliance with the repêchage obligation.
The proceedings were therefore reinstated before the Court of Appeal of Milan, which established the actual breach of the repêchage obligation and therefore the unlawfulness of the challenged dismissal.
Specifically, according to the Court of Appeal, at the time of dismissal, two employees with Area Manager duties had resigned with notice expiring on 31 May 2011, a period of time shortly after the date of dismissal. Consequently, the employer should have taken that fact into account in its assessments of the employee’s relocation.
According to the Court of Appeal the following points were irrelevant: (i) the two resigning employees were hired a month later by another Group company that previously obtained their services through a service contract and then decided, in June 2011, to internalise the sales activity, no longer using the services provided by the employer company; and that, consequently, (ii) the dismissal was due to a complex company reorganisation to reduce staff numbers, including the two who had resigned who, in fact had never been replaced, to cope with loss of turnover.
The judgment of the Italian Supreme Court
The employee appealed to the Italian Court of Cassation against the decision taken by the Court of Appeal of Venice. The employer company appealed to the Italian Court of Cassation against the decision taken by the Court of Appeal of Milan.
The Italian Court of Cassation declared the appeal inadmissible and upheld in full the judgment issued by the Court of Appeal of Milan when the case was referred to it.
Specifically, with particular reference to the repêchage obligation, the Italian Court of Cassation highlighted how the Court of Appeal of Milan had followed the indications provided at the time of referral and had ascertained that on the date of the employee’s dismissal, 3 May 2011, two employees of the employer company were completing the dismissal notice period that was to end on 31 May 2011. This proved that at the time of dismissal, the employer was aware that two positions that could be filled by the employee would soon become available in the company.
The Court of Appeal then found that the employer company had not yet been informed at the time of the dismissal of the related company’s decision not to continue to use the service contract and to internalise sales, as this information was not provided until 20 June 2011.
The loss of the service contract could therefore in no way be linked to the dismissal.
The Italian Court of Cassation therefore agreed with the finding made by the Court of Appeal of Milan and underlined that ‘the employer, in assessing the possibility of relocating the employee before proceeding with his/her dismissal, must also take into consideration those employee positions that, although still filled, will become available in a period of time very close to the date when notice of the dismissal is given’.
Since the appeal to the Italian Court of Cassation was ultimately seeking only a different interpretation of the facts from that provided by the Court of Appeal, the Court of Cassation therefore concluded that the appeal was inadmissible, and that the applicant should be ordered to pay the costs.
Other related insights:
With judgment No 6902 of 8 March 2023 (which follows two further similar rulings: judgments No 5788 and No 5796, both dated 24 February 2023, of the Italian Court of Cassation), the Italian Supreme Court of Cassation ruled that the transferred employee, who sees the employment relationship with the transferor judicially restored, is not entitled to remuneration for the period between the date of transfer of the business branch and that of the publication of the judicial provision declaring the illegitimacy of the aforementioned transfer and can obtain compensation for the damage suffered due to the unjustified refusal of the transferor employer to receive his/her service only starting from the moment in which formal notice was provided to the transferor employer.
The facts of the case and the proceedings in first and second instances
Following the transfer of a business branch – subsequently declared unlawful in the context of separate proceedings – a transferred employee summoned the transferor company before the Court, seeking for the latter to be ordered to pay the damages consisting of the difference between what the employee transferred would have received if the transfer had not been implemented and how much, however, he received from the transferee.
As part of the proceedings, it was ascertained that the transferor company’s formal notice by the transferred employee occurred only after the judgment which had declared, with effect ex tunc, the illegality of the transfer.
The Court of Appeal upheld the employee’s request, ascertaining the right of the transferred employee to compensation for the damage suffered as a result of the invalid transfer, for the period from the date of the transfer and until the formal notice.
The ruling of the Italian Supreme Court
The transferor Company appealed to the Italian Court of Cassation against the judgment rendered by the Italian Territorial Court, challenging the contested judgment for having recognized amounts by way of compensation for damages also for the period prior to the formal offer of work by the transferred employee.
The Italian Court of Cassation – overturning the decision of the Court of Appeal – noted that, in the time span between the transfer to the transferee’s employment and the judicial assessment of the illegitimacy of the transfer, the lack of work performance in favour of the transferor excludes the right to receive remuneration from the transferor.
According to the Judges of the Court of Cassation, for this period, the transferor can only be held liable for compensation for any damages commensurate with the lost wages.
All of this, however, on condition that the transferred employee has previously taken steps to give formal notice to the employer, remaining available to perform his services or by enjoining the employer to receive the service.
And in fact – continues the Court – only from the moment in which the employee has taken steps to give formal notice to the transferor employer, the same will be able to obtain, pursuant to Article 1217 of the Italian Civil Code, compensation for the damage suffered due to the unjustified refusal of the employer to receive it, deducting any aliunde perceptum.
On these assumptions, the Italian Supreme Court therefore upheld the appeal filed by the transferor company, declaring that no compensation for damages was due to the employee for the period between the transfer and the formal notice of the transferor company.
Other related insights:
The Court of Cassation rules on business branch transfers
Contract term ineffectiveness if there is a company transfer
