The Court of Trieste, Employment Section, with order of 21 December 2023, no. 525/2023 has held that so-called “vulnerable” workers’ rights to work remotely cannot be “absolute” but must be balanced with the company’s organisational and production needs as envisaged by the employer.
In the present case, a “vulnerable” employee worked remotely five days a week, under an individual fixed-term agreement. At the end of the agreed term, the employer informed the employee that, due to changed business and organisational needs, she would have to work for three days a week in person and, for the remaining two days, remotely.
In the face of this, the worker complained about the incompatibility of her state of health with in-person work, arguing the the tasks assigned to her were absolutely compatible with remote working – also taking into account that in the last three years she had carried them out entirely remotely – and highlighting the unlawfulness of the employer’s conduct for breach of Article 2087 of the Italian Civil Code.
The employer challenged the application and claimed that it was unfounded for alleged breach of the company’s freedom of organisation, protected by Article 41 of the Italian Constitution. The employer justified the refusal to allow the employee to work entirely remotely on the basis of proven organisational reasons and reiterated the need for her presence in the workplace for at least three days a week.
The Court highlighted that the right to remote working granted to “vulnerable” workers (see Article 90, paragraph 1, of Italian Decree-Law no. 34/2020) is not an absolute right but a right expressly subordinated to the compatibility of the worker’s tasks being carried out remotely.
The Court also acknowledged that the ways in which the employer exercised its power to organise the company appeared real and appropriate and that the possibility of working remotely, albeit partially, was never denied but rather partially granted following a balancing and re-evaluation of the parties’ mutual needs.
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In conclusion, it can be said that the assessment of the compatibility of remote working by vulnerable workers must be carried out on the basis of the organisational and production needs of the concerned organisation, involving, where necessary, an inevitable need to alternate between days in which the worker must work in-person and days when he/she can work remotely. This reading, among others, is consistent with the provisions of Article 18 of Italian Law no. 81/2017 which, in defining remote working, provides for that work should be provided “partly inside company premises and partly outside”.
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In its very recent judgment no. 2274 of 23 January 2024, the Italian Court of Cassation ruled that it is lawful for an employer to give notice of a second dismissal pending a judgment concerning a previous dismissal based on different grounds. However, the second dismissal has no effect if the first dismissal is declared lawful by a final judgment.
An employee, pending proceedings relating to a first dismissal, brought legal proceedings challenging a second disciplinary dismissal imposed on him by his employer.
The proceedings relating to this second dismissal were settled by the so-called ‘summary phase’ of the Fornero Proceedings with the annulment of the dismissal as only one of the alleged facts had been proven.
Both the employee and the employer appealed against the summary phase order.
The two sets of appeal proceedings were not joined and ended with two separate judgments, both declaring the invalidity of the supervening second dismissal. This was because, pending those judgments, the first instance court had held the first dismissal to be lawful and, subsequently, the Court of Appeal, again with reference to the first dismissal, had declared the worker’s appeal inadmissible.
The two judgments delivered in the context of the appeal phase relating to the second dismissal were appealed against by both the employer and the employee.
The Court of Appeal – following the intricate procedural sequence of events summarised above – declared the second dismissal invalid on the basis that there had been a judgment, albeit not final, which had affirmed the lawfulness of the first dismissal.
The employer appealed to the Italian Court of Cassation against the Court of Appeal’s decision.
Pending the appeal to the Italian Court of Cassation proceedings relating to the second dismissal, that court also ruled on the first dismissal, confirming its lawfulness.
In the judgment under discussion, the Italian Court of Cassation judges therefore noted, preliminarily, the loss of interest on the part of the employer in insisting on the annulment of the ruling declaring the invalidity of the second dismissal, because such ineffectiveness was now to be considered confirmed by the final judgment.
It was only to rule on the costs of the proceedings that the Italian Court of Cassation upheld the employer’s appeal on the following grounds.
In the first place, the Court ruled that, in an employment relationship, the employer, if it has already given the employee notice of dismissal, may lawfully give notice of dismissal for a second time, based on a different ground or reason, because the latter is completely autonomous and distinct from the first.
According to the Italian Court of Cassation judges, both acts of withdrawal are in themselves theoretically sufficient to achieve the purpose, since the second dismissal is effective only in the event that the previous dismissal is held to be invalid or ineffective by a final judgment.
It follows that the Court of Appeal should have ruled on the lawfulness or otherwise of the second dismissal, since the judgment relating to the first dismissal had not – at the time – yet been concluded with a final judgment.
The Italian Court of Cassation, accepting the appeal brought by the employer, consequently ordered the employee to pay the legal costs of the proceedings.
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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.
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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