The Court’s ruling 1 on 2 January 2020, stated that the requirements of art. 19 of the Workers’ Statute to establish union representatives, with the rights referred to in section 3, should not be confused with the principles stated in art. 28 of the Statute (unfair labour practice repression). Art. 19 requires signing of national collective agreements (or provincial or company collective agreements, but applied in the company) or union participation in negotiation of these agreements, as workers’ representatives. Art. 28 only requires the association to be national. The procedure is for cases where protection of the union’s collective interest to freely exercise its prerogatives is challenged. This interest is distinct and autonomous from individual workers’. The Court of Cassation declared the employer’s transfer of 80% of workers registered or affiliated to a trade union from one plant to another to be an unfair labour practice, even if the company’s underlying needs were legitimate. The employer’s conduct was considered to be harmful to the collective interests of the union. In the Court’s view, the statistical element, which reveals a situation of disadvantage for the union, gives rise to a presumption of discrimination. The employer must provide proof to the contrary.
The Court of Cassation, with judgement No. 7642/2019, has once again deliberated on the issue of selection criteria in collective redundancy procedures, as set out in Law 233/1991.
The facts
The Court of first instance rejected a statement of opposition filed by a company pursuant to art. 1, paragraph 51, of Law 92/2012 against the decisions issued at the end of the summary case hearing to overturn the dismissal of two workers in the context of a redundancy process pursuant to Law 223/1991.
The company had challenged the first instance judgement before the Court of Appeal, which, in granting the appeal, dismissed all claims of the workers.
The Court of Appeal held that the company, contrary to what the applicants had claimed, had not assigned a different weighting to the three selection criteria set out in art. 5 of Law 223/1991, observing that “their concurrent existence does not indicate parity but merely their simultaneous presence in the assessment process”.
In detail, in the context of the technical, production and organisational needs criteria, the company had identified four sub-criterions, specifically: (i) attendance; (ii) positions established to be redundant; (iii) versatility; (iv) employed in discontinued operations. This was because the need to reduce staff numbers was linked to industrial restructuring programmes that involved discontinuing a number of operations in the production area.
On this point, the Court of Appeal:
Furthermore, the Court of Appeal held that two factors could not be underestimated, that the trade unions involved throughout the entire procedure had not raised any objection to the selection criteria used and that the applicants had not “provided a simulation of a ‘prova di resistenza’” (comparing the scores of all employees made redundant against those of all employees not made redundant).
Two employees challenged the decision of the Court of Appeal before the Court of Cassation. The two petitions were rejected by the Court of Cassation.
Court of Cassation ruling
In rejecting the two petitions, the Court of Cassation first highlighted that an application to overturn a collective redundancy for violation of the selection criteria set out in art. 5 of Law 223/1991 could not be brought randomly by each of the workers made redundant. In fact, the violation could only be challenged by those employees made redundant who had effectively suffered a detriment as a result of the violation, insofar as the violation was decisive in the redundancy decision (see Court of Cassation ruling No. 24558/2016).
That said, the Court of Cassation observed that an employer could not restrict the selection of the workers to be made redundant “solely to workers of the departments or sectors that were being discontinued or downscaled if such workers met the requirements – having performed their duties in other departments in the past – to replace co-workers in other departments”. In other words, it would be unlawful to select employees based purely on the fact that they work in a certain department without considering that they have equivalent professional skills to those of co-workers employed in other departments.
In the specific case, the Court of Cassation deemed that the trial court had dismissed the argument that a different weighting had been given to the three selection criteria set out in art. 5 of Law 223 because all three had been assigned a score.
In detail, the Court of Cassation took the view that the process of breaking down the criterion of technical, production and organisational needs into four sub-criterions, and assigning a “different score” to each, reflected the need to compare all employees who performed equivalent tasks in different production areas.
With judgment no. 4670 of 18 February 2019, the Court of Cassation maintained that the controls requested by the employers of an investigation agency are legitimate if the investigation concerns the control of behaviour that could be criminally relevant or fraudulent actions capable of damaging the employer.
The facts
A company active in the food industry had found out through a private investigation agency that on 22, 23 and 24 December 2014 and on 22 and 23 January 2015 and 5 February 2015, one of its own employees, instead of assisting a family member in relation to whom the worker had requested use of the leave allowed under Article 33 of Law no. 104/1992, had instead been busy with other personal activities (in places of business and other places, in any case not the one in which the assistance activities should have taken place).
The company had therefore started a disciplinary procedure against the employee, at the end of which it had served a notice of termination from employment for cause.
The worker had applied to the labour court for a declaration of unlawfulness of the dismissal in question and application of all the legal consequences resulting therefrom.
Even though the Court had excluded from the disciplinary measure the days of 22, 23 and 24 December given that the company had decided to suspend all work activities during the Christmas Holidays, it rejected the claim of the worker, declaring the dismissal legitimate.
The worker then filed a complaint before the Court of Appeal having jurisdiction pursuant to Law no. 92 of 2012, claiming also that the investigation agency was not licensed to carry out the investigations.
The Court of Appeal had upheld the judgment of the court of first instance and, in particular, had declared the dismissal legitimate, on the basis that the investigations aimed at the ascertainment of an improper use of the leaves pursuant to Law no. 104/1992 did not concern the performance of work activities. This is so because the investigations had been carried out during non-working hours and during suspension of the primary obligation to perform.
The court therefore ruled that the findings of the investigations and the first-hand testimony of the investigators were admissible, and that the argument of the agency not holding a license issued by the Prefecture had come too late.
In conclusion, the Court found that the worker had misused the right under Article 33 of Law no. 104/1992, betraying the confidence placed in the employee and constituting such a reproachable behaviour that the measure adopted was justified, even in the absence of other previous disciplinary measures.
The worker therefore filed an appeal before the Court of Cassation against the judgment of the Court of Appeal.
The ruling of the Court
The Court of Cassation upheld the decision of the Court of Appeal having jurisdiction and:
According to the Court of Cassation, the activities of the investigation agencies – in order to be lawful – should not extend to the work activities in the strictest sense. Indeed, under Article 3 of the Workers’ Statute, this is the direct responsibility of the employer and its collaborators. Therefore, the actions in question are justified not only because of the occurred wrongdoing and of the need to assess its nature, but also in the event of a mere suspicion or hypothesis that wrongdoings are being committed (see Court of Cassation no. 3590 of 14 February 2011; Court of Cassation no. 848 of 20 January 2015).
According to the Court, neither the principle of good faith nor the prohibition of remote controls referred to in Article 4 of the Workers’ Statute prevent the above, given that the employer can autonomously decide how and when to carry out the controls, including secretive controls, and given that the worker is obliged to act diligently while the employment contract is in force (see Court of Cassation no. 16196, 10 July 2009). This is so because the conduct of the worker:
Conclusions
In brief, it follows from the judgment at hand that the employer can legitimately hire an investigation agency to verify if during the periods of leave from work, on grounds of assistance to a family member, the worker performs other activities and, in the event of evidence in this sense, it can legitimately proceed to the dismissal of the worker.
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Ascertainment of breaches of discipline by private detectives
The Court of Cassation, with judgement No. 1499 dated 21 January 2019, confirmed the principle of law according to which, concerning dismissal due to justified objective grounds, it must be deemed proven that an attempt has been made to repêchage by the employer who, as an alternative to dismissal, offered to the redundant employees the chance to change their work hours.
The facts
A female worker, employed by a company operating in the insurance and tourism services sector and employed at the reception counter and ticketing area, was dismissed on justified objective grounds because of the closing of the area where she was employed. As an alternative to the dismissal, the Company had proposed transforming the employment relationship from full time to part time, which, however, the employee refused.
The worker then filed a lawsuit to the competent local Employment Court to claim that her dismissal had been unlawful with all the legal consequences that would result from it. As a basis for her claim, the worker stated that the offer to change work hours could not constitute a valid attempt at repêchage, since the company hired a new full-time employee one year after her dismissal, and had also entrusted said new hire with tasks that she had previously carried out.
The Court accepted the worker’s application but its ruling was overturned by the Court of Appeal of Ancona selected by the company.
The Court of Appeal, in particular, declared lawful the dismissal on the grounds that:
The employee thus appealed to the Court of Cassation against the judgment issued by the Court of Appeal.
The ruling of the Court
The Court of Cassation upheld the decision of the Appeal Court by considering that the proposal to convert the employment relationship from full-time to part-time was sufficient to prove that the employer had attempted the repêchage.
The Court of Cassation also pointed out that it was not possible to consider the recruitment of a new resource valid either, since that recruitment had taken place as a result of the termination of another employment relationship, which was ended after the termination of the appellant’s employment relationship.
Conclusions
From the judgment in question, it follows that an attempt to repêchage by the employer must be regarded as proven when as an alternative to dismissal the employer offers to the redundant employee the chance to change work hours.
The Court of Cassation, with judgement No. 3186 of 4 February 2019, stated that dismissal based on a future corporate transfer (through merger) with consequent unification of departments, cannot be considered lawful, with the employee involved subject to the protections established by Article 18, paragraph 4, of the Law No. 300/1970 (the so-called attenuated reinstatement). This is because the case in question must be regarded as the equivalent of “clear non-existence” of the fact on which the dismissal was based.
The facts
A female employee, with an appeal filed under No. Law 92/2012, brought her case to court against her employer in order to obtain a ruling voiding, stating as ineffective or declaring as unlawful her dismissal. Specifically, she argued of having received respectively: (i) on 16 October 2014, a merely informative notification concerning the termination of her employment following the transfer of her tasks to the registered office of another company as a consequence of the merger by incorporation between the latter and her employer company; (ii) on 6 November, the letter of dismissal due to removal of her job position. Nevertheless, the employee pointed out that the merger by incorporation took place only on 24 November 2014, thus after her dismissal.
The employee also invoked the application of Article 2112, paragraph 4, of the Italian Civil Code, according to which a corporate transfer (equal to a merger) could not in itself constitute grounds for dismissal.
The Court ruled the dismissal void, ordering the reinstatement of the employee and the payment to her of the damage indemnity. In the Court’s opinion, in fact, dismissal was in conflict with Article 2112, paragraph 4, of the Italian Civil Code, since it had to be exclusively due to a corporate merger and in any case ordered in violation of the procedure set out in Law No. 223/1991.
At time of claim, the Court sided with the company, considering as proven the corporate crisis that had led to the removal of the job position in question, regardless of the merger and, therefore, excluding a violation of Article 2112 of the Italian Civil Code and the applicability of Law No. 223/1911.
The employee appealed against the first instance judgement. The local Court of Appeal in charge, overturning the judgment, declared the dismissal unlawful, thus issuing an order for reinstatement and an order for the company to pay a compensation equal to 12 months’ salary calculated on the basis of the total de facto remuneration pursuant to Article 18(1) of Law No. 300/1970, in addition to ancillary charges.
The company appealed to the Court of Cassation against the second instance judgement.
The ruling of the Court
The Court of Cassation confirmed the dismissal was unlawful since it did not appear that a loss of job position took place at the time of its notification, but at most a forthcoming transfer of tasks to another company.
In support of its opinion, the Court of Cassation made reference to a previous judgement according to which ”in the event of a corporate transfer, the transferor retains the power of withdrawal granted by the general regulations so that the transfer, although it may not be the only reason of justification, cannot prevent dismissal on justified objective grounds provided that can be identified in the corporate structure assessed independently and not in connection with the transfer or in the purpose of facilitating it”. (Court of Cassation, Civil Division No. 11410/18 and Court of Cassation, Civil Division No. 15495/18).
The Court of Cassation, however, upheld the company’s objection that the dismissal caused by the corporate transfer does not in itself void the dismissal with the consequent inapplicability of the protections provided for in Art. 18 of Law No. 300/1970.
According to the Court of Cassation, in fact, “Article 2112 of the Italian Civil Code only establishes that a corporate transfer does not in itself represent grounds for dismissal, and does not generally prohibit it, much less under penalty of voidance”. Therefore, in its opinion, the dismissal cannot be protected by the regime referred to in paragraph 1 of Article 18 of the Workers’ Statute. A paragraph that calls for reinstatement in the event of discriminatory dismissal or dismissal for unlawful reasons or “in the other cases of voidance provided for by law”. This is specifically because Art. 2112 of the Italian Civil Code de quo calls for its voiding the effects for lack of a justified reason.
Consequently, in its opinion, the case under review must be considered under the scenario of “clear absence of the fact” on which the dismissal for justified objective reasons was based, as per the second sentence of Article 18, paragraph 7 of the Law No. 300/1970. This was because it was proven that, at the time of dismissal, the reasons for it did not exist, since they were simply linked to a future grouping of tasks which would, moreover, achieved through a future corporate merger. A merger that in turn did not constitute in itself justified grounds for dismissal pursuant to and by effect of Article 2112, paragraph 4, of the Italian Civil Code.
According to the Court of Cassation, the judgment under appeal should have fallen under the protection provided for in paragraph 4 of Article 18 of Law No. 300/1970 with voiding of the dismissal and order to reinstate the employee and to pay full remuneration calculated effective from the date of dismissal until the date of reinstatement, deducting any aliunde perceptum o percipiendum, in any case not exceeding 12 months’ salary of the actual remuneration, in addition to the payment of social security contributions as established by the aforementioned Article 4.
Conclusions
The judgment in question shows that the transferor company may dismiss an employee on justified objective grounds only if the corporate transfer takes place at a time prior to that of the dismissal itself. Lacking that, the risk is to incur the consequences referred to in Article 18, paragraph 4, of the Workers’ Statute (the so-called attenuated reinstatement).
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