With judgment no. 16630 of 14 June 2024, the Italian Court of Cassation ruled that to reinstate the employment relationship under Article 18, paragraph 10, of the Workers’ Charter, it is sufficient for the employer to send the notice of revocation of dismissal within 15 days of the notice of dismissal, although it is not necessary for this notice to be received by the employee in the same time frame.
An employee was dismissed for justified objective reasons by letter of 17 January 2018. The worker challenged the dismissal with a certified email sent to the company on 13 February 2018 and received by the employer on the same date.
On 1 March 2018 the employee received a telegram, sent to her by the company on 28 February 2018, revoking the dismissal and containing a request to return to work.
The employee claimed that the revocation was late and did not comply with the employer’s request.
Due to the worker’s unjustified absence which lasted for more than three days, the company dismissed her for just cause.
The employee brought legal proceedings, objecting to the lateness of the revocation of the first dismissal, as it had been received by her after the deadline of 15 days for challenging the dismissal.
The first instance judges as well as the court of appeal rejected the applicant’s claims. They noted that the revocation of the first dismissal was to be considered in time, since – in terms of revocation of the dismissal – the “principle of splitting the effective date of the document” (principio di scissione degli effetti dell’atto) applies.
The Italian Court of Cassation – in confirming the ruling of the court of appeal – noted, preliminarily, that revocation of dismissal, introduced by Italian Law no. 92/2012 and governed by Article 18, paragraph 10 of the Workers’ Charter is the employer’s unilateral right to safeguard his/her own rights and to which the worker is subject.
According to the Court of Cassation judges, this is a sort of “self-defence” (autotutela), which can be exercised by the employer, which results in the reinstatement of the relationship without interruption and without the need for a similar indication of consent by the employee.
The only necessary condition established by the law is that the revocation is carried out within 15 days of the notice to the employer that the dismissal is being challenged.
The Italian Court of Cassation judges held that, starting from an analysis of the wording of the provision – which anchors the start date (dies a quo) to the notice of the dismissal challenge and the expiry date (dies ad quem) to the date of the revocation, the absence of an express reference to the notice to the concerned party, “leads us to consider that the mere sending of the revocation to the worker within the prescribed period and not its receipt within the same period is sufficient”.
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In note no. 1091/2024 of 18 June 2024, the INL provided the first operational guidelines on the changes introduced by Italian Decree-Law no. 19/2024 regarding the sanctions regime for unauthorised staff supply work, contracting and secondment.
Article 29, paragraph 4 of Italian Decree-Law no. 19/2024 has, in fact, reinstated the criminal offences of unlawful staff supply work, contracting and secondment. It has introduced the alternative or joint penalty of arrest or fine where “staff supply work is carried out with the specific purpose of evading mandatory legislative provisions or of the collective agreement applied to the worker”.
The INL notes that “in relation to the correct determination of the amount of fines to be applied when alleging breaches, it is necessary to take into consideration the provisions of Article 1, paragraph 445, letter d), point 1, of [Italian] Law no. 145/2018. […] This provision was only partially amended by [Italian] Decree-Law no. 19/2024 – with the increase from 20% to 30% of the amounts of the so-called maxi-sanction for ‘off the books’ work – thereby confirming the effectiveness of the 20% increase already provided for in relation to the cases referred to in Article 18 of [Italian] Legislative Decree no. 276/2003”.
This increase must also be applied to the new fines provided for by Italian Decree-Law no. 19/2024.
By way of example, in relating to carrying on unlawfulstaff supply work “punished by imprisonment for up to one month or a fine of EUR 60 for each worker employed and for each day of work” of five workers for 20 working days each, the fine is calculated as follows:
In these operational guidelines the INL also deals with repeat offences, for which a series of increased sanctions are provided for, as well as in the case of aggravating circumstances in the case of exploitation of minors.
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With judgment no. 7190 of 18 March 2024, the Italian Court of Cassation addressed the issue of the validity of a resignation submitted by an employee under threat of dismissal by the employer.
The employee initiated legal proceedings to have his resignation declared null and, in the alternative, void and to obtain a finding that the employment relationship had continued without interruption, with the right to the salaries accrued in the meantime. This was on the grounds that he had been forced to submit a letter of resignation completed under the duress from two company managers, who threatened him with prejudicial consequences. The Italian Court of Cassation ruled that if an employer was not entitled to dismiss an employee due to the non-existence of the alleged breach, the resignation tendered by the employee under threat of dismissal can be annulled on the grounds of moral unfairness. In this case, the worker’s resignation is based on intimidating and objectively unfair conduct, which constitutes psychological coercion and revokes consent.
By order no. 10663 of 19 April 2024, the Italian Court of Cassation stated that the employer bears the burden of proof in proving that remuneration has been properly paid.
The worker filed an application for summary judgment to obtain an order against the company to pay the amount indicated in the November 2015 pay slip.
In the first instance, the first instance Court found that the payment was due to the worker.
The company appealed to the Court of Appeal. The Court of Appeal upheld the first instance decision, ruling that the employer had not discharged its burden of proof relating to proving in court that the sum had been paid.
The Italian Court of Cassation – confirming the Court of Appeal decision – preliminarily noted that, once the existence of an employment relationship has been ascertained, the employer is under a strict duty of proof to establish that the remuneration has been paid. The employer can do this by means of the normal documentation i.e., regulatory pay slips bearing the worker’s signature. If the employer cannot prove that it has paid the remuneration due to the employee through pay slips, it must provide appropriate documentation of the relevant payments that it has made in relation to the employee’s individual claims.
According to the Italian Court of Cassation, giving employees at the time of payment of remuneration a statement containing an indication of all the constituent elements of the remuneration does not prove payment where the worker states that it is inconsistent with the remuneration actually paid.
According to the Italian Court of Cassation, the burden falls on the worker only if he/she, after signing the pay slip, alleges that the remuneration indicated in the pay slip is inconsistent with the remuneration paid.
As the present case did not fall within the latter situation, the Italian Court of Cassation rejected the company’s appeal.
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Conciliation agreements negotiated with the help of a union cannot be validly concluded at the company’s headquarters. This is because company headquarters do not fall within “protected locations” (sedi protette) which are neutral and guarantee, together with the assistance provided by the union representative, that the worker is free to make his or her own decisions.
The Italian Court of Cassation affirmed this principle in order no. 10065 of 15 April 2024. This is a more restrictive interpretation than that laid down in order no. 1975 of 18 January 2024. According to the Court the locations selected by the legislator are exhaustive and do not permit substitutes, both because they are directly linked to the body responsible for conciliation and because of the aim of guaranteeing the worker a neutral environment, without employer influence.
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