By judgment No 12132 of 8 May 2023, the Italian Court of Cassation ruled on the subject of dismissal for justified objective reason. The Court specified that in the assessments of the possibility of relocating the employee before proceeding with the dismissal (so-called repêchage obligation), the employer is required to take into consideration not only the positions already vacant at the date of dismissal, but also those that will be ‘available in a period of time very close to the date of the announcement of the dismissal’.
The facts and the judgment on the merits
On 3 May 2011, an employee with the duties of Sales Manager, was dismissed because his position was redundant. The employee brought an application challenging the dismissal before the Court of Busto Arsizio. The employee sought reinstatement and compensation and also requested a determination that his employment relationship was also attributable to another group company.
The application was dismissed at first instance and on appeal.
A first appeal was therefore brought before the Italian Court of Cassation against the judgment of the Court of Appeal of Milan. This appeal concluded with the acceptance of this further appeal and a referral to the same Court of Second Instance, sitting with different judges, to rule on the objections raised on the subject of the repêchage obligation.
In particular, according to the Italian Supreme Court of Cassation, the Court of Appeal had not conducted the necessary investigations regarding the employer’s compliance with its repêchage obligation. The Court of Cassation recalled that the employer, in this regard, had the burden of proving: (i) the lack of available positions where it could feasibly relocate the employee and (ii) the absence of subsequent recruitment. The Italian Court of Cassation also pointed out that the finding of co-employment could be relevant in the context of an overall assessment of compliance with the repêchage obligation.
The proceedings were therefore reinstated before the Court of Appeal of Milan, which established the actual breach of the repêchage obligation and therefore the unlawfulness of the challenged dismissal.
Specifically, according to the Court of Appeal, at the time of dismissal, two employees with Area Manager duties had resigned with notice expiring on 31 May 2011, a period of time shortly after the date of dismissal. Consequently, the employer should have taken that fact into account in its assessments of the employee’s relocation.
According to the Court of Appeal the following points were irrelevant: (i) the two resigning employees were hired a month later by another Group company that previously obtained their services through a service contract and then decided, in June 2011, to internalise the sales activity, no longer using the services provided by the employer company; and that, consequently, (ii) the dismissal was due to a complex company reorganisation to reduce staff numbers, including the two who had resigned who, in fact had never been replaced, to cope with loss of turnover.
The judgment of the Italian Supreme Court
The employee appealed to the Italian Court of Cassation against the decision taken by the Court of Appeal of Venice. The employer company appealed to the Italian Court of Cassation against the decision taken by the Court of Appeal of Milan.
The Italian Court of Cassation declared the appeal inadmissible and upheld in full the judgment issued by the Court of Appeal of Milan when the case was referred to it.
Specifically, with particular reference to the repêchage obligation, the Italian Court of Cassation highlighted how the Court of Appeal of Milan had followed the indications provided at the time of referral and had ascertained that on the date of the employee’s dismissal, 3 May 2011, two employees of the employer company were completing the dismissal notice period that was to end on 31 May 2011. This proved that at the time of dismissal, the employer was aware that two positions that could be filled by the employee would soon become available in the company.
The Court of Appeal then found that the employer company had not yet been informed at the time of the dismissal of the related company’s decision not to continue to use the service contract and to internalise sales, as this information was not provided until 20 June 2011.
The loss of the service contract could therefore in no way be linked to the dismissal.
The Italian Court of Cassation therefore agreed with the finding made by the Court of Appeal of Milan and underlined that ‘the employer, in assessing the possibility of relocating the employee before proceeding with his/her dismissal, must also take into consideration those employee positions that, although still filled, will become available in a period of time very close to the date when notice of the dismissal is given’.
Since the appeal to the Italian Court of Cassation was ultimately seeking only a different interpretation of the facts from that provided by the Court of Appeal, the Court of Cassation therefore concluded that the appeal was inadmissible, and that the applicant should be ordered to pay the costs.
Other related insights:
The comparison between redundant employees can be limited only to employees of a unit or sector, subject to their ability, due to previous employment in other company departments, to perform the jobs of other colleagues – Employees bear the burden proof of showing that the various duties are interchangeable.
The Italian Court of Cassation, in order No 9128 of 31 March 2023, established that, in relation to collective redundancies due to staff reductions, where the restructuring of the company affects a specific production unit or sector, the comparison between redundant workers can be limited only to employees of that unit or sector, subject to their ability, due to previous employment in other company departments, to perform the jobs of other colleagues. Employees bear the burden proof of showing that the various duties are interchangeable.
In this context, the Court of Cassation continues, the burden falls on the employer to prove the circumstances justifying the narrower scope of the decision that was made, in addition to showing that the chosen workers are not interchangeable with the employees assigned to other departments or offices.
The ruling of the Court of Cassation originates from the dismissal of an employee following a collective dismissal procedure, which was held to be lawful at first instance by the Court of Cassino.
Repealing the first instance judgment, the Court of Appeal of Rome accepted the appeal presented by the employee. The Court of Appeal ascertained that, during the aforementioned collective dismissal procedure, the employer company had breached the selection criteria under Article 5, Italian Law No 223/1991 for not having considered, in deciding which employees to be dismissed, the employee’s previous professional experience in other departments not involved in the corporate reorganisation.
Based on the findings of fact and law, the Court of Appeal of Rome, with judgment No 2287 of 28 October 2020, accepted the employee’s complaint. The Court ordered the employer to reinstate the employee and pay compensation equal to the overall actual remuneration from the day of the dismissal until that of reinstatement, for a period not exceeding 12 months.
The employer company filed an appeal against the decision taken by the Court of Appeal of Rome, which the employee resisted with a counter-appeal.
Specifically, the company alleged, among other things, the breach and misapplication of Articles 4 and 5 of Italian Law No 223/1991 and the rule on the distribution of the burden of proof under Article 2697 of the Italian Civil Code and Article 115 of the Italian Code of Civil Procedure. The company argued that the Court of Appeal of Rome had erred in upholding the unlawfulness of the dismissal on the grounds that the employer had limited its consideration of the employee’s job to a single business unit, also given the lack of evidence on the employee’s actual duties in other departments.
Nevertheless, the Court of Cassation held the company’s complaints to be unfounded. The Court highlighted how the Court of Appeal of Rome had complied with a principle widely established in case law (Court of Cassation, Employment Division, judgments No 18190/2016 and No 2284/2018) according to which, in the event of collective dismissal that concerns a specific production unit or sector, the comparison of the employees to be made redundant can be limited to the personnel assigned to that unit or sector. This is, however, on condition that the employees of the department to be abolished, due to their career history, are not capable of performing the jobs of colleagues in departments or sectors of the company not involved in the reorganisation.
In terms of proof, the Court of Cassation judges reaffirmed the principle, already expressed in previous Court of Cassation case law (Court of Cassation, Employment Division, judgments No 8474/2005, No 13783/2006, No 33889/2022, No 203/2015, No 19105/2017 and No 15953/2021), according to which the burden proof of proving the interchangeable nature of the various duties is on the employees, while the burden is on the employer to prove
a) the circumstances that justify the narrower business context in which to make the choice of the employees to be dismissed and
b) that the employees did not carry out duties that were interchangeable with those of colleagues from other departments.
The full version of this article can be accessed at Norme e Tributi Plus Law of Il Sole 24 Ore.
Whistleblowers liable for similar actions
The legislation that protects an employee who reports unlawful conduct which he/she has become aware of due to his/her duties is ‘aimed at preventing unfavourable consequences for the fact in itself of having reported unlawful conduct, but certainly does not create exemptions with respect to the offences that that person had allegedly committed independently or in concert’. This was affirmed by the Court of Cassation with order No 9148 of 31 March 2023. The case originates from a disciplinary suspension imposed on a nurse working at a public sector hospital, who had worked for a private body for eight years without authorisation from her employer. In the judgment in second instance the Court of Appeal of Rome confirmed the ruling of the Court of first instance and rejected the appeal against the sanction under Article 54-bis of Italian Legislative Decree No 165/2001 – i.e. the protection envisaged in the event of reporting of offences of which the employee became aware due to the duties performed (the employee had, in fact, reported similar behaviour of other colleagues to the employer). The Court of Appeal noted the fact that the employee, having in turn conducted herself in the same way, certainly could not benefit from the protections invoked. The employee lodged an appeal against this decision before the Court of Cassation, in which the Health Authority filed a counter-appeal. In her sole ground of appeal, the appellant alleged breach and erroneous application of Italian Legislative Decree No 165 of 2001, Article 54-bis, on the basis that a whistleblower would only be liable when the report would constitute slander or defamation. The Court of Cassation – in confirming the assessment of the appeal judges – clarified that the function of the aforementioned Article 54-bis is to prevent the employee who makes a report from being sanctioned, dismissed or otherwise subjected to discriminatory measures for reasons connected, even indirectly, to the report.
The full version can be accessed at Italia Oggi.
By Order No 8375 of 23 March 2023, the Italian Court of Cassation confirmed that footage from video surveillance systems installed for security purposes may be used to prove an employee’s disciplinary breach.
The facts of the case
The case arose from a disciplinary sanction of suspension from duty and pay for ten days imposed on a vocational teacher for forcibly grabbing a student by the shirt and, after releasing his grip, causing him to fall to the ground. The teacher, moreover, ‘while the pupil […] communicated to his mother what had happened […]’ addressed the latter ‘in an ill-mannered way using decidedly heated tones’.
The event was filmed by means of the video surveillance system installed by the Authority – the educator’s employer – at the Authority’s premises, and the recordings used to make the disciplinary complaint. The teacher, having received the disciplinary measure, in requesting its annulment challenged, among other things, the use of the video surveillance system footage for disciplinary purposes.
In the proceedings on the merits, the Court of Appeal rejected the request to annul the sanction and, upholding the appeal lodged by the teacher, reformed the first instance judgment by redetermining the sanction as a fine of three hours.
The teacher appealed to the Italian Court of Cassation, which the Authority resisted with a counter-appeal.
The decision of the Italian Court of Cassation
The Italian Court of Cassation – in upholding the assessment of the judges of the Court of Appeal – affirmed the lawfulness of the use of video surveillance system footage for the purpose of making a complaint based on an employee’s disciplinary breach.
In the present case, the video surveillance system had been installed in compliance with the guarantees provided for by the applicable legislation:
• the cameras had been installed for safety at work requirements, also in the light of the fact – as noted by the Italian Court of Cassation – that they were directed towards spaces that were ‘also accessible to non-employee personnel and not intended to accommodate workstations’;
• a trade union agreement had been signed as provided for in Article 4 of the Workers’ Charter.
In addition to this, matters such as the proportionality of the penalty imposed in relation to the wrongful act committed, as well as the fact that the worker had been allowed to exercise his right of defence, had also been examined.
In the context of all these assessments, the use of the video surveillance system footage was therefore an additional element that was considered lawful.
Other related insights:
Video Surveillance: the new FAQ of the Data Protection Supervisory Authority
By Order No 8375 of 23 March 2023, the Italian Court of Cassation confirmed that footage from video surveillance systems installed for security purposes may be used to prove an employee’s disciplinary breach.
The facts of the case and the first and second instance proceedings
The case arose from a disciplinary sanction of suspension from duty and pay for ten days imposed on a vocational teacher for forcibly grabbing a student by the shirt and, after releasing his grip, causing him to fall to the ground.
The teacher, moreover, ‘while the pupil […] communicated to his mother what had happened […]’ addressed the latter ‘in an ill-mannered way using decidedly heated tones’.
The event was filmed by means of the video surveillance system installed by the Authority – the educator’s employer – at the Authority’s premises, and the recordings used to make the disciplinary complaint.
The teacher, having received the disciplinary measure, in requesting its annulment challenged, among other things, the use of the video surveillance system footage for disciplinary purposes.
In the proceedings on the merits, the Court of Appeal rejected the request to annul the sanction and, upholding the appeal lodged by the teacher, reformed the first instance judgment by redetermining the sanction as a fine of three hours.
The teacher appealed before the Italian Court of Cassation and the Authority filed a counter-appeal.
The decision of the Italian Supreme Court
The Italian Court of Cassation – in confirming the ruling on the merits – affirmed the lawfulness of the use of video surveillance system footage for the purpose of making a complaint based on an employee’s disciplinary breach.
Noting the lack of defects in (i) the explanation of the factual and legal reasons on which the decision on the merits was based or (ii) the explanation of the logical / legal path followed by the Court of Appeal, the Court of Cassation confirmed the correctness of the assessment by the second instance judges in assessing the video surveillance system footage on the basis of the ‘argument for the usability [of the footage], in conjunction with the other investigative elements considered’.
The full version can be accessed at MAG de Legalcommunity
