The Italian Court of Cassation, in its recent judgment no. 10802 of 21 April 2023, ruled once again on the timeliness of the communication of the dismissal, ruling that breach of the deadline established by the collective bargaining agreement for the adoption of the final provision of the disciplinary procedure may constitute a breach of the procedure referred to in Article 7 of the Italian Workers’ Charter (Statuto dei lavoratori).
This breach – where the sanction is a disciplinary dismissal – will result in the application of the protection provided for by Article 18, paragraph 6, Italian Law no. 300/70 (so-called ‘tutela indennitaria debole’ or reduced compensation), provided that the delay in communicating the dismissal is not significant and unjustified, on the basis that the principle of timeliness is one of substance and not just formality. These factors will be assessed by the trial judge on the facts.
The facts of the case
The procedural matter originates from the dismissal for just cause of which notice was given to an employee after the deadline set by the Poste Italiane CCNL applied to the employment relationship. The contractual provision established that ‘the communication of the ruling must be sent in writing to the worker within and no later than 30 days from the deadline for the presentation of the grounds, failing which the disciplinary procedure is considered to have been concluded’.
In the specific case, the company had sent the dismissal notice for the first time by registered letter within the terms set by the CCNL, but, having incorrectly indicated the recipient’s address, service was not considered to have been effected. Subsequently, the company, ten days after the deadline set by the CCNL, served the notice at the correct address through court officer.
As part of the trial on the merits, it was ascertained that the employee, several years earlier, had provided her residence address to the company’s human resources department, and asked to receive company communications at that address.
From these circumstances it was therefore ascertained that the sending by the Company of the first dismissal letter to an address that did not correspond to the one indicated by the employee could not be considered blameless.
Consequently, on the basis of the aforementioned provision of the collective agreement, the trial judges established that failure to comply with the deadline for sending the dismissal letter led to the closure of the disciplinary procedure, with consequent application of the reinstatement protection provided for by Article 18, paragraph 4, of Italian Law no. 300/1970.
The appeal to the Italian Court of Cassation and the decision taken by that Court
The company appealed to the Italian Court of Cassation against the decision taken by the Court of Appeal, putting forward two different grounds of appeal against the second instance judgment.
The first ground of appeal related to the alleged timeliness of the sending of the first dismissal letter, which should have been considered successful and knowledge of the contents of the document considered to have been received, despite the erroneous indication of the house number.
On a separate basis, the Company challenged the reinstatement ordered by the judges on the merits, noting that failure to comply with the final deadline certainly did not imply ‘in itself the rebuttal of the facts of which the worker has been accused nor the presumption iuris et de iure of their positive evaluation by the employer nor the exercise of the disciplinary power by acquiescence, since the delay could well be exclusively attributable to a mere (albeit culpable) error’.
The Italian Court of Cassation rejected the first ground of appeal finding that the ineffective service was attributable exclusively to the company. The Court excluded the possibility that sending a notice of dismissal, which was ineffective for reasons attributable to the employer, could not have an effect on the right being time-barred.
With regard to the second ground of appeal, the Italian Court of Cassation recalled judgment no. 30985/2017 of the Joint Divisions, regarding the principle of timeliness that characterises the disciplinary procedure and the sanctioning consequences in the regime under Italian Law no. 92/2012.
In that case the Joint Divisions noted a conceptual distinction between the ‘breach of rules governing the methods of carrying out the entire procedure in its various phases and the breach of the general substantive principle of the timeliness of the challenge when it takes the form of a significant and unjustified delay’.
In the specific case, the Italian Court of Cassation ruled that the decision taken by the Court of Appeal conflicted with the principles established by the Joint Divisions, according to which failure to comply with the terms set by the collective agreement for service of the letter of dismissal constitutes a procedural breach and gives rise to the sanction of compensation under Article 18, paragraph 6. The court held that greater protection for the employee can only be granted in the event of a significant and unjustified delay in the notice of dismissal, in common with the disciplinary charges, capable of infringing not only the formal but also the substantive principle of timeliness.
In conclusion, in accepting the appeal filed by the Company, the Italian Court of Cassation quashed the appealed judgment, referring the case to the Court of Appeal sitting with a different composition for the re-examination of the specific case in the light of the principle of law provided by the Court of Cassation judges.
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Despite the failure to challenge previous agreements and the loss of the worker’s ability to challenge these agreements, exceeding the maximum limits permitted for fixed-term contracts can render the employment relationship invalid. This was established by the Italian Court of Cassation in judgment no. 15226/2023 of 30 May 2023, based on a well-established interpretation and adopting a restrictive reading of the rules governing fixed-term work.
The facts of the case
The ruling of the Italian Court of Cassation originates from a judgment of the Court of Appeal of Brescia (no. 127 of 2017) which rejected a worker’s appeal concerning a fixed-term contract and numerous previous relationships with the same employer.
In the case, the worker had complied with the legal time-limit of 60 days from the end of the relationship to challenge only the last agreed fixed-term contract. The Court of Appeal of Brescia, considering this fact, dismissed the appeal, rejecting all connected requests.
The worker lodged an appeal with the Italian Court of Cassation against the judgment of the Brescia Court of Appeal.
The decision of the Italian Court of Cassation
The Italian Court of Cassation partially reviewed the aforementioned decision of the Court of Appeal. On the one hand, it reiterated that ‘on the subject of the succession of fixed-term agency employment contracts, the out-of-court appeal of the last contract in a series of contracts does not extend to the preceding contracts, even where a period of less than 60 days has elapsed between one contract and the next for the purposes of challenging the contract’. Therefore, the Court confirmed that the challenge in relation to the last contract does not extend to the preceding ones, even if less time has elapsed between one contract and the other than is necessary to bring the challenge.
After establishing this principle, the Italian Court of Cassation analysed the worker’s ability to claim abusive use of fixed-term contracts by the employer due to their excessive and repeated use, even if the limitation period had expired. The Court started from the recent interpretation of EU law by the European Court of Justice (judgment 14 October 2020 in case no. C-681/18, relating to the parallel institution of temporary agency work), according to which the Member States must adopt measures to preserve the temporary nature of temporary agency work, to avoid circumvention of the directive on this type of work.
In the light of this principle, the judge is called to evaluate the effect that the recurrence of fixed-term contracts can have in circumventing the EU rules which establish limits on the duration and quantity of fixed-term contracts. The Court held that the historical existence of previous relationships can and must be taken into consideration to assess whether the reasons for resorting to fixed-term work are actually of a temporary nature and that this assessment remains valid even if the limitation period for the worker to challenge those contracts has expired.
In other words, according to the Italian Court of Cassation, the expiry of the limitation period prevents the worker from taking direct action with respect to the previous unchallenged contracts, but the judge can consider their existence as historical precedents that may be used to assess whether their repetition has been abusive and whether the maximum duration established by law (36 months) has been exceeded.
In the light of this judgment, the principle emerges according to which, and in relation to successive fixed-term contracts, an appeal directed only against the last contract of a series, when the party is time-barred from appealing previous contracts, does not exclude the fact that the judge must take into account, in assessing the lawfulness of the contract challenged within the limitation period, the factual information on the existence of previous fixed-term relationships, to verify whether the relationship, considered as a whole, can be considered actually temporary or whether there has been abusive repetition, to be ascertained according to the rulings in the ECJ judgment of 14 October 2020, case C-681/18.
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Dismissal for just cause of worker who gives personal badge to others to certify (false) attendance at the company is lawful.
The Italian Court of Cassation, by order no. 10239 of 18 April 2023, confirmed the decision taken by the Court of Appeal of Lecce which had held a dismissal for just cause of a worker who, while absent from work, had given his badge to a colleague to confirm the absent worker’s attendance in the workplace to be lawful. In the context of the assessments carried out by the Court of Appeal and then confirmed by the Court of Cassation, both the dismissed worker’s allegedly minor absence from work and the fact that no damage had been caused to the employer’s company were irrelevant for the purposes of assessing the lawfulness of the dismissal. Moreover, in the opinion of the Court of Cassation, the Court of Appeal of Lecce had correctly highlighted how the fact that the worker had already carried out similar fraudulent conduct on other occasions gave the episode, which was the subject of the dispute, particular gravity thus justifying the dismissal. In the context of their assessments, the Court of Cassation judges then confirmed the limits on challenging, within the appeal analysed by them, the activity [carried out by the trial judge] in interpreting that the conduct of the worker fell within the provisions of Article 2119 of the Italian Civil Code, for the purpose of identifying the just cause for dismissal, on the basis of which an appeal cannot put forward a reconstruction and assessment of the facts different from that underlying the contested decision.
The facts of the case and the outcome of the trial
The case originates from the dismissal for just cause, of which notice was given on 23 May 2017, of a worker who was accused of having given a colleague his personal badge so that he could falsely certify his attendance at the workplace.
The employee challenged the dismissal judicially, arguing that it was unlawful and seeking, primarily, reinstatement in the post previously occupied and, in the alternative, that the employer company be ordered to pay damages.
In both the summary phase of the so-called Fornero Procedure (Rito Fornero) and in the opposition phase under Article 1, paragraph 57, Italian Law no. 92/2012, the Court of Taranto rejected the worker’s complaint, confirming the lawfulness of the dismissal.
By judgment no. 290/2019, the Court of Appeal of Lecce rejected the appeal brought by the worker and confirmed the first instance judgment of the Court of Taranto. Specifically, the Court of Appeal of Lecce observed that, although it was not possible to ascertain to what extent the improper use of the badge had allowed the worker to falsely certify his attendance at the company, the assessment of the existence of the just cause for dismissal concerned specifically ‘the improper use of the attendance monitor’, which, according to a specific internal service directive, had necessarily to be carried out personally by the workers and not by complicit third parties ‘as was pointed out to the worker, thus making the duration of the absence from the workplace irrelevant’.
On the basis of those considerations, the Court of Appeal of Lecce had therefore considered the sanction of dismissal imposed as proportionate, since the conduct complained of was an abuse of trust punishable by dismissal under the national collective bargaining agreement applied to the employment relationship in question.
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With order No 12244 of 9 May 2023, the Italian Supreme Court of Cassation confirmed that if an employee refuses to go from full-time to part-time, he/she may be lawfully dismissed if the dismissal is not based on the employee’s refusal but is because the employer is unable to use the employee’s full-time services.
The facts of the case
Following the sale of a company branch (consisting of the supermarket at which the employee was employed) the three shareholders in the transferee company had decided to work at the shop and, therefore, the workforce was oversized. To deal with the situation, the three full-time employees, including the employee, were asked about their willingness to reduce working hours.
The employee refused to move from full-time to part-time and, consequently, the Company, as it was unable to use the employee’s full-time services, dismissed the employee for justified objective reasons.
The employee challenged her dismissal, alleging, primarily, that the dismissal was retaliatory and, in the alternative, that it was unlawful.
The Court declared the dismissal unlawful, but not retaliatory and ordered the Company to reinstate the applicant or to pay her compensation equal to five months’ total actual salary under Article 8, Italian Law No 604/66.
In the second stage of the same proceedings at first instance, the Court rejected both the employee’s main claim seeking a declaration of nullity of the dismissal, and the Company’s ancillary claim, seeking a declaration of the lawfulness of the dismissal for justified objective reasons.
The Court of Appeal, hearing only the employee’s appeal, upheld the decision taken by the Court, rejecting the complaint brought by the employee.
The employee appealed to the Court of Cassation against that ruling, challenging the Court of Appeal’s judgment for having rejected the retaliatory nature of the dismissal.
The decision of the Italian Supreme Court
The Italian Court of Cassation noted, preliminarily, that Article 8, paragraph 1, of Italian Legislative Decree No 81/2015 states that ‘the employee’s refusal to transform his or her full-time employment relationship into a part-time relationship, or vice versa, does not constitute justified grounds for dismissal’.
According to the Italian Court of Cassation judges, this rule, on the one hand, excludes the possibility that the refusal to transform the relationship into part-time can constitute in itself justified grounds for dismissal. On the other hand it does not preclude a dismissal being lawful for objective reasons in the event of a refusal to go part-time, entailing – in the words of the Court – ‘a remodulation of the justified objective ground and the burden of proof’ placed on the employer.
The Italian Court of Cassation judges stated that, in this situation, for the purposes of the lawfulness of the dismissal, the following prerequisites must be met and proved by the employer:
The provision referred to in Article 8, paragraph 1, set out above should not, therefore, be understood in an absolute sense, as a blanket prohibition. It is, rather, a prohibition to be read in a strictly literal way, which does not preclude the possibility of a lawful dismissal for inability to use full-time services associated with the employee’s refusal to change to part-time.
In the event of such a refusal, in other words, it becomes ‘a component of the wider burden of proof‘ on the employer who has ordered a dismissal on the basis of objectively justified reasons owing to economic and organisational difficulties.
Nevertheless, as noted by the Italian Court of Cassation itself, the possibility cannot be excluded that a dismissal is, in fact, retaliation for an employee’s refusal to transform his or her employment relationship with a reduction in working hours. As is known, in this case the dismissal would be null and void, but the nullity must be supported by the employee proving that that the retaliatory intent was the exclusive reason for the dismissal, including with respect to other elements that may be relevant to a just cause or justified reason.
In particular, with reference to the present case, the Italian Court of Cassation judges concluded that ‘the Court of Appeal, given that the [lower] court declared the dismissal unlawful for justified objective reasons for failure to prove the reasons given (and that the related decision was not challenged by the company), excluded the possibility that the dismissal was based on a single and decisive retaliatory ground against the current applicant […]. Therefore, there is no room for holding that the breach of the legal provisions complained of is established, nor can the judgment be claimed to suffer from the defect of apparent reasoning apply given that the appellate decision does not present any of the hypotheses of ‘anomaly of grounds’ appealable before the Court of Cassation’, with the consequent rejection of the appeal brought to the Court of Cassation by the employee.
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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.
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