With Order no. 31660 of 14 November 2023, the Italian Court of Cassation ruled on a dismissal for a justified objective reason based on the need to cut costs. In this case, the employer had not demonstrated that the costs savings should be those specifically relating to the dismissed worker’s position rather than other positions that were more “expensive” than the one affected by the dismissal. The Italian Court of Cassation, hearing the case, established that for the purposes of ascertaining the lawfulness of a dismissal because of a general need to cut costs, the reasons why the employer chose a particular worker must be assessed. In this regard it is also necessary to consider other job positions, especially if they are comparable to the one abolished, to verify the existence of the causal link between the alleged organisational reason and the abolition of the job. Following the majority approach, the Court therefore ruled that if the dismissal for a justified objective is imposed to cut costs, the burden is on the employer to indicate the reasons why the particular worker has been chosen. .
By Order no. 35527 of 19 December 2023, the Italian Court of Cassation ruled on the dismissal of a working mother ordered as a result of the cessation of the employer’s business activity following a declaration of bankruptcy, holding it to be void and ordering the employer to reinstate the employee and pay financial compensation.
In this case, the worker was dismissed by the receiver, shortly after returning from the period of compulsory maternity leave and before her child turned one year old, due to the declaration of bankruptcy of the Cooperative, her employer.
The worker challenged the dismissal before the Court of Arezzo claiming that the dismissal was void as notice was given within a year of her son’s birth. The Court accepted the worker’s claim, declared the dismissal null and void and ordered the receiver to reinstate the employee and to pay her compensation commensurate with her final salary.
The receiver appealed the decision to the Florence Court of Appeal, which confirmed the first instance judgment.
The Italian Court of Cassation, hearing the case, examined the concept of “cessation of business activity” provided for by Article 54, paragraph 3, letter b) of Italian Legislative Decree no. 151/2001 as one of the exceptions from the general prohibition on the dismissal of working mothers within a year of the birth of their child.
In particular, the Court examined the scenario in which the interim continuation of the business activity is not ordered with the bankruptcy ruling, nor subsequently authorised by the bankruptcy judge, in a context in which, after the bankruptcy, “it had been demonstrated that the liquidation activities had not begun and that, instead, protective activities were underway for the purpose of transfer to third parties (which is why a selection process of personnel to be retained in service was being carried out)”.
The Court noted that, from a comparison of the bankruptcy legislation and Article 54, the judgment declaring bankruptcy implies the formal cessation of the business activity (except for any authorised interim continuation), while the concept of cessation underlying Article 54 has a different scope.
In the Court’s opinion the exception to the prohibition on dismissal in the event of “cessation of the business activity” operates only in those cases in which there is no possibility, for whatever reason, of the continuation of the business. The Court noted that this is based on the over-riding protection of the rights of the mother-worker with respect to financial rights, which are safeguarded by the equal treatment of creditors principle in bankruptcy proceedings.
In recalling previous rulings on the topic, the Court, with the judgment in question, clarified that the exception provided for by Article 54 is subject to “precise and circumscribed limits” and that “because the termination of the relationship is an extraordinary or necessary event”, the exception cannot be interpreted expansively (Italian Court of Cassation no. 13861/2021). Therefore, the Court concluded, the exception to the prohibition on dismissal operates when the following two conditions are met: (i) the employer is a company and (ii) there is cessation of the business activity, with the burden of proof falling on the employer.
In the present case, in light of the fact that the business activity of the bankrupt Cooperative could not be said to have ceased, the worker’s dismissal was not considered to comply with the legal principles mentioned above and, for this reason, was therefore considered unlawful.
In its recent order No. 19023 of 5 July 2023, the Italian Court of Cassation has ruled on geographical jurisdiction under Article 413 of the Italian Code of Civil Procedure. The Court ruled that the worker’s home, from which he performed his work through remote working, could not be classified as a company dependence in the absence of any objective or subjective connection of the place of performance of the service with the company.
The facts of the case
The case originates from a payment order issued by the Court of Rome in favour of a temporary worker. The employer had been ordered to pay the worker compensation arising from the nullity of the temporary employment contract and for the continuation of the activity beyond the expiry of the time-limit, with the consequent transformation of the temporary employment contract into a permanent employment contract.
The company challenged the payment order, asking for a preliminary determination that the Court of Rome did not have geographical jurisdiction over the matter and that, in the alternative, jurisdiction rested with the Court of Genoa, as the worker’s location of operational and effective activity, or the Court of Udine, as the place where the company had its registered office.
In this application the Court of Rome declared its lack of geographical jurisdiction, holding that jurisdiction rested, alternatively, with the Court of Genoa or Udine, as well as the Court of Civitavecchia, as the worker was resident in Civitavecchia and performed his work through remote working from his home.
The appeal to the Italian Court of Cassation and the decision taken by the Court
The company appealed against that judgment by way of a single legal ground, in which it objected to the erroneous interpretation of the law and of the established case-law regarding the determination by the Court of Rome of the jurisdiction of the Court of Civitavecchia.
The company pointed out, in fact, that there was no basis for establishing jurisdiction in the Court of Civitavecchia, since there was no nucleus of assets organised for the exercise of the business at the employee’s home, thus excluding jurisdiction at the place where remote working was carried out.
The order issued by the Italian Court of Cassation starts from an analysis of Article 413 of the Italian Code of Civil Procedure, which states that the employment judge has geographical jurisdiction alternatively in the place where the relationship was established in the place where the company is located, or, finally, in the place where the company dependence to which the employee is attached is located.
According to the ruling of the Italian Court of Cassation under comment, with specific reference to ‘company dependence’, reference must be made to the place where the employer has located a nucleus, albeit modest, of assets organised for the exercise of the business (Italian Court of Cassation No. 14449/2019; Italian Court of Cassation No. 4767/2017).
Where, on the other hand, as in the case in question, the remote working takes the form, according to the employee, solely of the place where the service is carried out, without any other related aspect that in any way characterises the home as a company dependence, then this criterion cannot be taken into consideration for the purposes of identifying geographical jurisdiction. Consequently, the only criteria which remain applicable are represented by the place where the contract was concluded or the place where the employee was employed.
As a result, the Italian Court of Cassation upheld the Company’s application on the question of jurisdiction, declaring the alternative geographical jurisdiction to be exclusively the courts of Udine and Genoa but not the court of Civitavecchia.
Other related insights:
With its recent judgment No. 17643 of 20 June 2023, the Italian Court of Cassation affirmed the principle that the limitation period for a worker’s right to receive compensation in lieu of untaken holiday leave and weekly rest starts from the termination of the employment relationship, except where the employer proves that the worker was put in a position to enjoy the accrued holiday leave.
In particular, the employer must provide proof that it has invited the worker to take the holiday leave at a time that ensures that the leave still provides the person concerned with the rest and relaxation for which it is intended. In addition, the employer must have warned the worker that, if the holiday leave is not taken, it will be lost at the end of the reference period.
In the case examined by the Italian Court of Cassation, a worker, following the termination of the employment relationship due to resignation, brought an action before the Court of Milan requesting, among other claims, an order that the employer pay her compensation in lieu of untaken holiday leave.
The Court partially accepted the worker’s request, while the Court of Appeal of Milan upheld the worker’s cross-appeal, recognising the right to receive compensation in lieu of holiday leave for a total of 248 days (instead of 124 days as ordered by the Court at first instance).
The employer appealed to the Italian Court of Cassation against the judgment of the Court of Appeal of Milan, submitting, among other things, that the worker’s rights were time-barred, given the ten-year limitation period for compensation in lieu of holiday leave that must start to run during the employment relationship.
In this regard, the Italian Court of Cassation, confirming the rulings of the first instance judges, stated that the limitation period of the worker’s right to compensation in lieu of untaken holiday leave and weekly rest ‘starts from the termination of the employment relationship, unless the employer proves that the right to holiday leave and weekly rest was lost by that worker because he or she did not enjoy it despite the invitation to use it; the invitation must be clear and given in good time to ensure that the holiday leave and rest periods provide the person concerned with the rest and relaxation for which they are intended, and must contain a notice that, in the event of non-enjoyment, such leave and rest will be lost at the end of the reference period or an authorised carry-over period’.
In conclusion, therefore, it is better not to postpone holiday leave when it is the employer who invites the worker to use it to avoid the risk of definitively losing the right, including that relating to the monetisation provided for at the end of the employment relationship.
Other related insights:
On 18 May 2023, the Italian Court of Cassation, criminal division, judgment no. 21153,ruled that ‘risk assessment is a specific function of the employer, which cannot be delegated even through delegating functions to another person and any failure by the RSPP to cooperate in the drafting of the Risk Assessment Document (Documento di Valutazione dei Rischi, “DVR” may, at most, give rise to concurrent but not exclusive liability of the latter’.
The facts of the case
The case stemmed from a work-related accident that occurred to an employee of a company who, while arranging a stack of pallets that had not been properly stacked, was struck – on the head and shoulder – by pallets falling to the ground, sustaining injuries that resulted in an illness lasting more than 40 days.
Both the Court of Vercelli and the Court of Appeal of Turin convicted the sole director and ‘employer for company safety purposes’ of the criminal office under Article 590 of the Italian Criminal Code (‘negligent personal injury’). The court considered that the director was guilty of negligence, carelessness, inexperience and failure to comply with the rules for the prevention of accidents at work and for not having assessed the risk inherent in the construction of the stack of pallets.
An appeal to the Italian Supreme Court was lodged against the Court of Appeal ruling, alleging a breach of the law in relation to the finding of criminal liability. Specifically, the appellant – i.e. the employer for company safety purposes – argued that the appointment of an RSPP exonerated him from any liability. The RSPP should have, among other things, (i) assessed the risks associated with the specific work activity based on the delegation responsibilities; (ii) trained employees; (ii) evaluated the risks associated with the specific activity and (iii) drafted the DVR.
The Italian Court of Cassation
The Italian Court of Cassation affirmed that the assessment of the risks to the health and safety of workers present within a company is one of the employer’s specific obligations. This obligation, established by Article 17 of Italian Legislative Decree no. 81/2008, is non-delegable. ‘Any failure by the RSPP to cooperate in the drafting of the DVR may, at most, give rise to concurrent but not exclusive liability of the latter’. The Court also clarified, on this point, that the RSPP will be liable where it is possible to trace an injurious event back to a dangerous circumstance that the RSPP should have known about and reported and, instead, failed to do so.
For all these reasons, the Court of Cassation held the appeal to be inadmissible as the ground of appeal was manifestly unfounded.
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In conclusion, it seems possible to be able to state that an employer for company safety purposes is criminally liable if it is ascertained that an injury at work is caused by a failure to carry out a preventive assessment of the risk as well as by a failure to adopt the relevant measures necessary to reduce or eliminate that risk.
Other related insights:
The definition of worker for safety purposes according to the Court of Cassation
