The assessment notice issued by the Labour Inspectorate, if not opposed or confirmed by the Regional Committee, is an administrative act, which can become an enforcement order without the assessment being made final, which can be challenged.
With order no. 23744 of 29/07/2022, the Court of Cassation confirmed this, and stated that the warning notice issued by the labour inspectors which became an enforcement order, does not prevent the employer from bringing an action to challenge the assessment.
The case started with a summons served by a worker on the employer company to obtain sums based on an assessment notice issued by the labour inspectorate.
In the opposition proceedings, the Court of Appeal dismissed the worker’s claim based on the fact he signed an agreement with his employer which involved receiving a € 9,000 against the worker knowingly waiving any further employment-related claims.
In upholding the decision of the local Court, the Supreme Court noted that the assessment notice, even after becoming an enforcement order, does not prevent the employer from bringing an action to challenge the assessment.
The Supreme Court mentioned Art. 12 of Legislative Decree no. 124/2004, which is applicable to this case, and stated that, if during supervision the Labour Offices find non-compliance with contractual provisions which gives rise to pecuniary claims in favour of workers, they shall warn the employer to pay the amounts following the investigation.
After the assessment notice has been served on the employer, the latter may initiate an attempt at conciliation at the Provincial Labour Directorate within 30 days and if an agreement is reached, the notice loses its effectiveness.
Alternatively, the employer may lodge an administrative appeal against the assessment notice. Failure to appeal or reject the notice means that it takes effect as an enforcement order but does not preclude the interested party from challenging the existence of a right in court.
On these grounds, the Court of Cassation dismissed the employee’s appeal, confirming that the amount was not due.
Other related insights:
In ruling no. 26246 of 6 September 2022, the Court of Cassation resolved the legal contrast about the statute of limitations start date for employee claims in companies with more than 15 employees, clarifying that, after Law no. 92/2012 ( “Fornero Reform”), the statute of limitations no longer starts during the employment relationship.
Some employees of a company with the size requirements under Art. 18 of the Workers’ Statute brought an action before the Employment Tribunal to obtain recognition of their right to receive remuneration differences, exceeding the five-year statute of limitations for overtime night work performed.
The Court of First Instance of Brescia dismissed the applicants’ claims, ruling that, even after the amendments to Art. 18 of the Workers’ Statute introduced by the Fornero Reform, the employment relationship continues to be protected by real protection, which entails the statute of limitations period starting during the employment relationship.
The Brescia Court of Appeal upheld the Court of First Instance’s decision, denying the claimants’ right to the differences exceeding the five-year statute of limitations.
With a single ground of appeal, the employees challenged the appeal ruling alleging breach of Articles 2935, and 2948, no. 4 of the Italian Civil Code, 18 Law no. 300/1970, 36 of the Italian Constitution, by the local Court, based on the Constitutional Court’s rulings no. 62 of 1966, no. 143 of 1969, no. 174 of 1972) and the Supreme Court case law, which confirmed the validity of the relationship stability regime despite the amendment of the regulation on dismissals with the reforms of Law no. 92/2012 and Legislative Decree no. 23/2015 ( “Jobs Act”).
The Supreme Court of Cassation, in upholding the appeal brought by the employees, preliminarily ruled that, in line with the constitutionally oriented interpretation of Art. 2948, no. 4 of the Italian Civil Code, the statute of limitations starts during the employment relationship only when reinstatement is the foreseeable penalty “against any unlawful termination.”
According to the Supreme Court, the changes made by the Fornero Reform and Jobs Act to the regulation on dismissals eliminated this stability. This determined the change from an automatic application of reinstatement protection to every case of dismissal illegitimacy to a selective application of the protections.
On these assumptions, the Supreme Court ruled, that the open-ended employment, as regulated by the Fornero Reform and Jobs Act, lacks the prerequisites of predetermined terminations and their adequate protection, and is not assisted by a stability regime.
This means that the rights that are not lapsed at the time of the entry into force of Law no. 92/2012 (18 July 20012), are subject to a statute of limitations which starts from the employment termination, including for employees of companies meeting the size requirements under Art. 18 of the Workers’ Statute.
Other related insights:
In ruling no. 9800 of 25 March 2022, the Court of Cassation ruled that – if the notice referred to in Art. 4, paragraph 9, Law no. 223/1991 for the collective dismissal procedure does not correctly specify the criteria for the selection of the workers concerned, the procedure is unlawful and, consequently, the dismissal must be annulled.
The Court of Appeal of Reggio Calabria, reforming the first instance ruling, declared the collective dismissal announced by the employer company to the appellants by means of a notice under art. 4, paragraph 9, Law 223/1991, unlawful.
The local Court declared the employment relationship between the parties terminated, ordering the company to pay an indemnity of 12 months’ salary of the last full salary. This was because the dismissal notice was vitiated by a breach of form and failed to specify points awarded to each worker and the factual data relating to dependent family members, the abstract points provided for each criterion and each worker’s seniority data.
Six of the original workers appealed against the decision on four grounds, with the company responding with a counter-appeal. The public prosecutor concluded that the first grounds of appeal should be upheld and absorbs the others.
According to the Court of Cassation, the failure to specify in the notice, under art. 4, paragraph 9, Law no. 223/91, the criteria for choosing the workers to be dismissed did not allow the worker to understand why they were dismissed and not other colleagues. It stated that this hindered any challenge to the employer’s termination. That would entail a case of procedural unlawfulness since that failure would not constitute a mere formal non-compliance but would entail a breach of the selection criteria.
In the Court’s opinion, the unlawfulness could only lead to the dismissal annulment and the consequent ordering the employer to reinstate the employees and pay an indemnity not exceeding 12 months’ salary of the last full salary, under art.18, paragraph 4, of the Workers’ Statute.
Other related insights:
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.
