By Order no. 29101 of 19 October 2023, the Italian Supreme Court ruled on the compensation claim for damages in a “straining” case. The employee took legal action because his superior had applied towards him a “stressful” method of control, generating a heated discussion during which the employee had suffered a ischemic attack. The Court of Appeal, despite having established that the conduct had taken place, had denied its illegality, rejecting the compensation claim for damages made by the employee, based upon the fact that it was not a case of mobbing (or bullying), as it was an isolated episode and was not done systematically with a clear vexatious aim protracted over time. The Supreme Court stated that, aside from the classification as mobbing or straining, what is important is that the act committed, even in isolation, is an unlawful act pursuant to Article 2087 of the Italian Civil Code, leading to violation of the interests of the employee which are protected at the highest level of the legal system. The Supreme Court also clarified that straining represents an attenuated form of mobbing (or bullying), not having the continuous nature of the vexatious acts, but still attributable to Article 2087 of the Italian Civil Code, and that, once ascertained, it involves acceptance of the damages compensation claim.
By Order of 13 November 2023, no. 31561, the Italian Court of Cassation ruled that, to fully comply with the repêchage obligation (obligation to relocate), it is necessary to assess whether hires made following the termination for justified objective reasons are of the same level of classification as the dismissed employee.
An employee, employed as a cashier in a bar, challenged her dismissal for abolition of her position.
Following the first instance judgment, in which it was ascertained that the termination was unlawful, the employer appealed.
The Territorial Court, reversing the ruling of the court of first instance, held that the dismissal was lawful. The court based this decision on evidence not only of the abolition of the job of cashier, but also of the fact that the worker had always and only performed the duties of cashier, having never performed duties as a counter or table attendant, tasks that were subsequently assigned to newly hired staff.
The judges of second instance also specified that “the fact – which is completely incidental and random – that multiple qualifications are placed in the same level of classification by the collective agreement is of no relevance. This allocation, in fact, is relevant for other purposes, i.e. to identify the regulatory and remuneration regime of the employment relationship of the employees thus classified, but it is completely <neutral>, i.e. irrelevant, for the purposes of the interchangeability of the related tasks”.
The Court of Appeal’s decision was appealed by the employee on several grounds.
The Italian Court of Cassation – accepting the appeal brought by the employee – ruled, preliminarily, that the employer, in fulfilling its repêchage obligation, cannot disregard careful consideration of the national collective bargaining agreement (contratto collettivo nazionale di lavoro, ‘CCNL’) applicable to the employment relationship.
Indeed, according to the judges of the Italian Court of Cassation, in the case of dismissal for justified objective reasons, and in the light of the new Article 2103 of the Italian Civil Code, the reference to the levels of classification described by a collective agreement is a relevant factor.
The Court specified that the CCNL “constitutes a factor that the judge will have to assess to ascertain whether or not the person who was dismissed was, in fact, able – on the basis of objectively verifiable evidence adduced by the employer and having regard to the specific training and entire professional experience of the employee – to carry out the duties of those who were hired ex novo, even if it is at the same or lower level”.
The Court of Cassation, finding no such assessment in the contested judgment on the merits, therefore upheld the employee’s appeal.
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The draft Italian Legislative Decree on international taxation (implementing Italian Law of 9 August 2023, no. 111, containing “Delegation to the Government for the revision of the tax system”) which contains the new regime for impatriate workers is currently being discussed in the Chamber of Deputies within the Italian Parliament.
At present the text amends Article 16 of Italian Legislative Decree no. 147/2015, which regulates the regime governing impatriate workers’ employee income.
Among the new features, the draft Decree provides that the provisions will not affect “registry” transfers which take place by the end of the year. Therefore, the “special” tax regime reserved for impatriate workers will also apply to those who have transferred their registered residence to Italy in the second half of 2023.
Furthermore, the draft Decree provides that to fall within the category of impatriate workers during 2024, the work activity must be carried out in Italy with an employer other than the “foreign” one, including those belonging to the same group.
We are therefore awaiting discussion of the draft Decree, which is currently under examination by the Chamber of Deputies, to assess any further changes to the text.
Among the topics we explored at our Team Meeting this week was the area of employer checks carried out through investigative agencies, analysing Court of Cassation judgment of 11 October 2023, no. 28378. In that case a dismissal based on evidence collected by a private investigator who had not been indicated by name in the appointment document was declared null and void.
If you would like to learn more about this topic, contact us or request our slides here.
With Order No. 26697 of 21 September 2023, the Italian Court of Cassation ruled that an employer can deny the holidays requested by a worker to avoid exceeding the limit of the job retention period only in the event that there are actual and genuine obstacles.
The facts of the case
The matter originated from the dismissal of a worker for exceeding the job retention period. The worker challenged the dismissal by providing evidence that she had asked the employer, with a communication sent and received by the company before the job retention period for the position had expired, to use accrued and untaken holidays.
With the same letter, the worker also informed the employer of her intention to request, once the holiday period ended, a period of unpaid leave if she were still unable to work. The employer rejected the request to use the holidays, granting the worker a period of unpaid leave of 120 days, and also informed her that the accrued and unused holidays would be paid on dismissal if, after the period of unpaid leave, the worker was still unable to resume work.
On expiry of the period of unpaid leave authorised by the Company, given the continuation of the employee’s illness, the employer notified the worker of dismissal for exceeding the job retention period.
The employee took legal action challenging the dismissal. In the proceedings, the Court accepted the worker’s requests, ordering the company to reinstate her.
On this point the Court of Appeal confirmed the judgment given in the first instance proceedings and found that the Company had unlawfully rejected the request made by the employee before exceeding the job retention period seeking to use accrued holidays to avoid exceeding the period.
The appeal to the Italian Court of Cassation and the latter’s judgment
The Company appealed against the judgment to the Court of Cassation.
The Italian Court of Cassation – in confirming the second instance judgment – clarified that a worker who is absent due to illness has the right to request the use of accrued and unused holidays, with the aim of suspending the running of the job retention period.
According to the Court of Cassation judges, this right does not give rise to a corresponding obligation on the employer to accept the request where there are organisational reasons that would prevent it.
The Court also reiterated the need for the reasons advanced by the employer to be actual and genuine, with a view to balancing the opposing interests and to comply with the general clauses of fairness and good faith.
As the latter requirement had not been satisfied in the present case, the Italian Supreme Court therefore rejected the appeal brought by the Company.
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