The Reform of the Civil Proceedings, (Italian Legislative Decree No 149 of 10 October 2022) will extend, with effect from 30 June 2023, the ‘assisted negotiation’ procedure to employment disputes.
From that date the employer and employee, if assisted by lawyers or employment consultants, will be able to sign final and non-appealable conciliation minutes (in jargon defined as ‘tombali’ – ‘tombstones’) without therefore having to ratify the agreement reached before the conciliation commissions or the bodies provided for by Articles 410 et seq. of the Italian Code of Civil Procedure.
With regard to the procedural aspects, as is already the case today for civil disputes falling within the scope of assisted negotiation, the procedure can be activated with the signing, between the parties involved in a dispute, of an agreement with which they undertake to cooperate to seek an amicable resolution of the dispute with the assistance of qualified professionals.
The agreement must provide, in addition to the subject of the dispute, a deadline for the completion of the procedure (not less than one month and not more than three months), extendable for a further 30 days by agreement between the parties to that effect.
In common with the ordinary civil procedure, the procedure may also be initiated at the request of only one of the parties, by written invitation addressed to the other party to sign the aforementioned agreement, with an indication of the subject of the dispute and the warning that failure to respond to the invitation within 30 days or the refusal to sign it may be considered by the judge for the purposes of the costs of the proceedings.
Any agreement reached as part of the assisted negotiation procedure, signed by the parties and their respective professionals, is definitive and will constitute (in the same way as even non-final judgments, as well as the minutes of conciliation currently signed in the venues envisaged by Articles 410 et seq. of the Italian Code of Civil Procedure and duly filed) an enforceable right including for the registration of judicial mortgage. The agreement must be provided, by one of the two parties, to a certification commission established under Article 76 of Italian Legislative Decree No 276 of 10 September 2003, within the following ten days.
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In its order no. 25287 of 24 August 2022, the Court of Cassation ruled on monitoring carried out by the employer and confirmed the legal principles within which the employer may use a detective agency.
This case involved a worker dismissed because he was accused of leaving the workplace repeatedly during working hours, for activities unrelated to his job (the contract allowed a certain workplace and time flexibility). This came to light as part of a broader investigation concerning the violation of leave under Art. 33 of Law no. 104/92 by a colleague which involved the appellant who had been reprimanded several times.
While the investigation on the other employee was lawful, the surveillance carried out on the employee in question was outside the detective agency remit.
According to the Supreme Court, the external monitoring must be limited to the employee illicit acts that are not attributable exclusively to the breach of an employment contractual obligation. In other words, to operate legally, detective agencies must not monitor work performance. Under the law, work performance monitoring must be carried out directly by the employer and its employees using audio-visual equipment and other monitoring tools.
Please note that internal work performance monitoring must follow legal limits.
The key provision is Art. 4 of the Workers’ Statute (Law 300/1970). Under this provision, information collected through monitoring can be used for employment relationship purposes, including disciplinary. However, certain criteria and “guarantee procedures” must be followed for them to be lawful.
Adequate information must be provided to the worker on the methods used to carry out monitoring. If audio-visual equipment or other monitoring tools are used, information must be provided on tools use and monitoring methods.
Under the last paragraph of Article 4, for the collected information to be usable for employment relationship purposes, personal data protection legislation, i.e., Regulation (EU) 2016/679 and Legislative Decree 101/2018, must be followed.
This allows the company, employer and data controller under the data protection legislation, to use the information collected and avoid incurring a heavy GDPR penalty for unlawful personal data processing.
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In its order no. 21453 of 6 July 2022, the Court of Cassation stated that if there is a company transfer, a worker reinstated after the employment contract term’s ineffectiveness was confirmed, is treated as transferred ex lege to the transferee.
The case concerns the effectiveness of a business transfer for a worker hired under a fixed-term contract by the transferor and re-employed by the transferee afterwards.
The Court of First Instance and the Court of Appeal of Milan held that the worker should be considered an integral part of the company at the time of the transfer and automatically transferred to the transferee. This is due to the reinstatement effects of the ruling confirming the ineffectiveness of the employment contract term.
The trial Court stated that the employment relationship was converted to open-ended following a ruling confirming the term ineffectiveness making the relationship existing “de iure even if not de facto,” even if at the time of the company transfer the employment relationship did not exist due to the contract term expiry.
The employer company appealed against the decision of the Court of Appeal of Milan.
The Court of Cassation rejected the appeal brought by the transferee company and stated that the ruling confirmed the ineffectiveness of the employment contract’s fixed term and ordered the re-establishment of the illegally terminated relationship which was declaratory and not constitutive.
The conversion into an open-ended employment relationship has an “ex tunc” effect i.e., from the date of the fixed-term contract unlawful termination.
Once the ineffectiveness of the employment contract term has been confirmed, the employment relationship becomes open-ended ab origine with the consequent automatic continuation of the employment relationship under the transferee under Art. 2112 of the Italian Civil Code.
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Contracting a viral infection at work is treated as an illness covered by INAIL and proof of the aetiological link can be provided in court by rebuttable presumptions
In its Order no. 29435 of 10 October 2022, the Supreme Court overturned the Palermo Court of Appeal’s ruling and provided a different interpretation of the evidentiary framework in the disputed case.
The case submitted to the Supreme Court originates from an appeal brought before the Court of Agrigento in first instance and the Court of Appeal of Palermo in second instance by a professional nurse employed by a nursing home, to obtain INAIL coverage which is an allowance in annuity or lump sum under Presidential Decree no. 1124/1965. This was based on an alleged hepatitis C infection contracted during work, assuming that this was due to plausible and prolonged exposure to the relevant pathogens.
The local Court confirmed the Court’s first instance ruling, and initially rejected the worker’s request. Based on the possible multi-factorial origin of the illness, the Court considered that the proof of the work-related cause and harmfulness of the working environment borne by the worker had not been achieved. The Court stated that the assessment should not involve “the causal link of the occupational accident’s pathological effects, but the precise identification of the fact giving rise to the illness.”
The Trial Court added that the claimant had no memory of specific events occurring during work, such as accidental needle punctures. This is because the routine medication and treatment of liver-diseased patients was not sufficient to give entitlement to the protections requested. This evidence cannot benefit the party who made such declarations, and it was nullified by findings made in another case concerning a previous infection with hepatitis B virus, and which required “strict proof of the infectious event during work.”
The Court added that the “report of an examination by the hospital medical committee” established during the proceedings for compensation under Law no. 210/1992, was not relevant because it “expressed an opinion (on the disease occupational origin and exposure to risk) without disclosing the factual elements on which it was based.”
In its order, the Supreme Court overturned the Palermo Court of Appeal’s ruling, and referred to a long-standing and never contradicted case law by which “in compulsory insurance against accidents at work, the action of microbial or viral factors which, by penetrating human organism, alter the anatomo-physiological balance, is treated as an accident. This effect, even if manifested later, must relate to the work performance, even in the absence of a specific injury underlying the infection” and “the proof can be provided in court by rebuttable presumptions” (Court of Cassation labour section ruling no. 7306/2000, Court of Cassation, labour section ruling no. 20941/2004; Court of Cassation, labour section ruling no. 6899/2004).
In this case, the Court of Appeal’s reasoning was not always coherent and linear, and referred to the need for a “precise identification of the fact giving rise to the illness.” This strayed from the above case law, wrongly concluding that a “strict proof of the infectious event during work” should have been provided based on the previous Hepatitis B incident.
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The Court of Cassation, IV criminal section, in its ruling no. 23809 of 21 June 2022, clarified the definition of “worker” for workplace health and safety purposes.
The case arose from the accident that occurred to an “illegal” worker who fell from the provided ladder while he was trying to remove the pergola in front of the restaurant managed by his “employer” and upon the latter’s request.
The defendant employer was convicted in both instances of culpable personal injury (Art. 590 of the Italian criminal code) against the injured worker.
The principal defended himself by pointing out that the Court of Labour of Siena ascertained that there was no subordinate employment relationship between him and the injured worker and that this would have “undermined the accusatory argument.“
The defendant appealed to the Court of Cassation against the Court of Appeal of Florence ruling – which confirmed the Court of Siena first instance ruling.
The Court of Cassation found the appeal inadmissible. What was considered relevant was not the worker’s qualification but the fact that the “illegal”, worker carried out tasks (i) at the “employer’s” request, (ii) in a place specified by the employer and (iii) with employer-provided means.
According to the Supreme Court, based on the finding that the pergola subject to removal was part of the restaurant run by the defendant and that the task was entrusted by the defendant, the “employer” assumed the management of the risks associated to working at a height. In addition, the ladder used by the worker “lacked the most basic safety measures, since it was used simply by leaning against the wall“.
For these reasons, according to the Court of Cassation and for health and safety protection obligations purposes, the plaintiff assumed the role of employer.
As stated by the Court of Appeal, Art. 2, paragraph 1, letter a) of Legislative Decree no. 81/2008, “worker is a person who, regardless of the type of contract, performs work within the organisation of a public or private employer with or without remuneration.” Considering the above, the rules on workplace health and safety apply even without a compliant and formal employment contract.
For these reasons, the Court of Cassation declared the appeal inadmissible and ordered the appellant to pay the proceedings costs and € 30,000 in favour of the Cassa delle ammende (Fine Fund) and the reimbursement of the costs of the dismissed appeal in favour of the civil plaintiff of another € 30,000.
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