In its ruling no. 3820 of 7 February 2022, the Court of Cassation established that the disciplinary notice shows the worker of the facts of which they have been charged to allow them to exercise their defence rights. It does not contain evidence, especially when it comes to facts beyond the employer’s direct knowledge which take place outside the company. In such cases, it is sufficient for the employer to specify the source of its knowledge.
A company initiated disciplinary proceedings against two employees of a motorway toll booth, who were accused of affixing paper to the automatic gate’s optical barrier to prevent the system from detecting vehicles in transit and personally profit from the tolls. The disciplinary proceedings, which centred on the conduct they carried out on 27 October 2016 and other circumstances set out in an annex to the letter of complaint, ended with their dismissal for just cause.
The dismissed employees challenged the dismissal before the local court, which rejected the appeal in the summary stage, but it was upheld in the opposition stage, declaring the dismissal unlawful and ordering the company to reinstate them.
The Court of Appeal of Naples, before which the unsuccessful company appealed, upheld the complaint lodged and, reforming the first instance ruling, rejected the employees’ original application to challenge the dismissal.
The local Court held that the dismissal was lawful because of (i) the degree of trust required by the position they held, which could not be continuously monitored, (ii) the fact that they had dealings with the users and represented the company; (iii) the responsibility associated with the handling of money. According to the local Court, the argument “that the amount stolen was small and the incident isolated” was irrelevant, “because the circumstance that the employees had carried out tricks and deception to take money to the employer’s detriment had a highly negative legal and social implication and irreparably damaged the bond of trust and made the expulsion penalty proportionate.”
The two workers appealed against the Court of Appeal ruling, to which the company replied with a counter-appeal.
The Court of Cassation clarified that, when exercising disciplinary power, the charge notice shows the contested fact to allow the worker’s defence. It does not contain any evidence, especially when it comes to facts beyond the employer’s direct knowledge which take place outside the company. It is sufficient that the employer specifies the source of its knowledge.
The Court of Cassation observed that, for dismissal for just cause, when the employee is charged with several disciplinary offences, it is not necessary for the existence of the “cause” that prevents the continuation of the relationship to be found exclusively in the totality of the offences. According to the Court of Cassation, the judge may – as part of the charges underlying the dismissal by the employer – identify even in any one of them the conduct that justifies the expulsion sanction if this is a severe breach required by art. 2119 of the Italian Civil Code.
The Court of Cassation pointed out that thepenalty proportionality or adequacy assessment for the offence committed is based on assessing the seriousness of the worker’s breach concerning the relationship and circumstances of the case. The breach “must be assessed in an accentuated sense compared to the “not insignificant” general rule under Art. 1455 of the Italian Civil Code, so that the imposition of the maximum disciplinary penalty is justified only if there is a significant breach of contractual obligations (Law no. 604 of 1966, Art. 3) or such as not to allow the continuation, even provisional, of the relationship.” In this case, the breach of trust is connected to the use by the employees, of artifices and deception to take money (regardless of its amount) from the employer.
Given the above, the Court of Cassation dismissed the employees’ appeal and ordered them to pay the costs of the proceedings.
With its ruling no. 1887 of 21 January 2022, the Court of Cassation stated that the employee might freely dispose of the right to challenge the employment relationship termination by waiving or settling.
Facts of the case
The facts of the case originate from the decision of the relevant local court, which was upheld on appeal, declaring inadmissible the employee’s request to verify the nullity of the term applied to the employment contracts assuming that a settlement had been reached between the parties.
The employee appealed to the Court of Cassation against the Court’s ruling, arguing that the settlement agreement signed was null and void because of the absence of the res litigiosa and the settlement concerned rights that were not available to the parties.
The Supreme Court of Cassation’s ruling
The Court of Cassation upheld the Court’s decision, stating that for the res litigiosa (a necessary element for the settlement validity) to exist, it is unnecessary that the parties’ arguments took the form of a claim and that the existence of a potential disagreement was sufficient, even if needed to be precisely defined as a dispute.
The Court of Cassation stated that the right to challenge an employment relationship termination and the worker’s interest in its continuation falls within the worker’s free choice.
According to the Court of Cassation, settlements on this issue are outside the scope of Art. 2113 of the Italian Civil Code, where only acts waiving the employee rights arising from mandatory legal or collective agreements provisions were considered invalid and challengeable.
On this basis, the Supreme Court dismissed the employee’s appeal. It deemed the inter partes conciliation valid assuming the Law recognised the worker’s right to definitively dispose of their job by negotiation and based on Art. 2118 of the Italian Civil Code.
Other related insights:
With its order no. 7400 of 7 March 2022, the Court of Cassation ruled that an individual dismissal for objective justified reason, for the same reasons as those underlying the collective dismissal previously initiated, is null and void because it involves fraudulent conduct.
An employee who was dismissed for justified objective reasons challenged the dismissal before the Court of Rome on the grounds that it was based on the same reasons that had previously led to a collective dismissal with the same company.
The Court declared that the dismissal was null and void because the company had not complied with the requirements of Law no. 223 of 1991, since it was based on the same reasons as the collective dismissal. The company had not involved the trade unions and had not carried out the necessary comparison between the position of the dismissed employee and that of the other employees subject to collective dismissal.
The company appealed against the ruling before the Court of Appeal of Rome, which upheld the first instance ruling, pointing out that the reasons underlying the two types of dismissal were overlapping. In addition, the Court of Appeal noted that (i) the collective dismissal had been concluded without redundancies because the recipients took part in a voluntary redundancy incentive offer and (ii) in the year that had elapsed between the termination of the collective procedure and the contested dismissal, no changes had occurred at the company.
According to the appeal court, the absence of new reasons that could have justified the individual dismissal, the non-inclusion of the employee in the collective procedure had precluded him from availing himself of the comparison of his position with those of the employees under the collective procedure.
The employer company appealed against the Court of Appeal’s ruling in cassation.
The Court of Cassation confirmed the Courts’ decisions and, using previous case law, observed that the employer could not revise their choices made in relation to the number, company location and professional profiles of the redundant workers, and the criteria for choosing the individual workers to be removed, through further and subsequent individual dismissals. The legitimacy of these dismissals was subject to the identification of factual situations different from the collective dismissal (see Court of Cassation, ruling 16 January 2020, no. 808).
The Cassation judges stated that “the dismissal for justified objective reason provided for the same reasons underlying a previous collective dismissal is a fraudulent conduct under Article 1344 of the Italian Civil Code.” The Court stated that the unlawful contract involves “the parties achieving the same result prohibited by Law, through contractual agreements. Although the means employed is lawful, the result intended to be achieved is unlawful by abusing the means and distorting its ordinary function,” as in this case.
The Court of Cassation rejected the company’s claim about the inadmissibility of the court to decide the merits of the entrepreneur’s technical, organisational and production choices. According to the Court of Cassation, the Court of Appeal found that the reasons underlying the collective dismissal overlapped with those underlying the individual dismissal and that the dismissal was unlawful.
This conclusion, according to the Court, is sufficient to declare the dismissal unlawful, because the procedural management of collective dismissal must effectively involve the union in the company’s organisational choices, binding the employer to meet them even after the procedure closure. The employer could not reconsider what was communicated to the union about the number, company location, professional profiles of the redundant workers and the criteria for selecting employees after the collective procedure had completed.
According to the Court of Cassation, the individual dismissal must be based on factual situations different from those underlying the collective dismissal.
Other related insights:
Disciplinary dismissal and groundlessness of the contested fact considering case law following the amendment of Art. 18 of the Workers’ Statute by the “Fornero Law”, and the entry into force of the “Jobs Act.” According to the latest developments in case law, groundlessness of the contested fact includes cases in which the fact has not materially occurred, and those in which the fact, which materially occurred, has no disciplinary relevance for the objective or subjective profile of the attributability of the employee conduct
Art. 1, paragraph 42, of Law 92/2012 amended Art. 18 of the Workers’ Statute classifying penalties resulting from the unlawful dismissal rulings, to make workplace reinstatement a last resort.
Other than null dismissal, protection is provided for cases of qualified unjustifiability specified in the fourth and seventh paragraphs of Art. 18 of the Workers’ Statute .
Before the entry into force of the Fornero Law reform under Art. 18 of the Workers’ Statute, in the absence of just cause or subjective justified reason, workplace reinstatement, with variable compensation, was the only protection for the employee. To establish the dismissal’s legitimacy, the Court was called to assess proportionality between the disciplinary offence committed by the employee and the penalty.
Before the Fornero reform, a dismissal could be considered legitimate provided that the employment termination was a proportionate consequence of the worker’s breach.
With the reform of Art. 18 of the Workers’ Statute, the concept of groundlessness of the fact was introduced for disciplinary dismissals, which refers to the concept of ” groundlessness of the contested fact“, and dismissal for objective justified reason, which refers to “manifest groundlessness of the fact underlying the dismissal.”
Paragraph 4 includes the groundlessness of the contested fact and the fact falling within conduct punishable with a conservative penalty under collective agreements or the disciplinary code.
Paragraph 7 considers the manifest groundlessness of the fact underlying the dismissal for objective justified reason.
Continue reading the full version published in Modulo24 Contenzioso Lavoro (Form24 Labour Litigation) of Il Sole 24 ore.
With its ruling no. 3724/2022, filed on 2 February, the Court of Cassation held that an employer who “warns” staff that they may lose their job to force them to accept financial conditions that do not match the services they provide was extortion.
Facts of the case
Two employees brought an action against their employer, operating in the hotel sector, claiming the crime of extortion, as they had been forced to accept unfavourable remuneration, on pain of dismissal.
The Courts (first the Sulmona Court and then L’Aquila Court of Appeal) rejected the appeal brought by the two employees, ruling out the possibility of the crime of extortion due to the absence of any threat element.
The second instance ruling highlighted that the employees were required to work beyond their regular working hours, almost continuously (even for twenty hours a day), carrying out tasks other than those contractually agreed. The employer also harassed them. The judges stated that the two employees could discontinue the employment relationship or respect the (unfair) working conditions. Further, they said they were not vulnerable given the hotel sector’s financial situation and because they came from a wealthy family.
The employees appealed to the Court of Cassation against the Court’s decision.
The Court of Cassation’s ruling
In upholding the two employees’ appeal, the Court of Cassation stated the appealed ruling did not consider that “threat” implies that the choice of conduct is left to the victim. This assumption wasbased on theknowledge that if they behaved differently from what was demanded by the active party (i.e., the employer), the consequence would be a predicted injustice.
Therefore, the choice of the conduct to be adopted is left to the passive party (i.e. the employees) cannot exclude the threat or extortion existence.
This overcame the Court of Appeal arguments centred on the belief that the employer had not contemplated dismissal but stated that anyone who did not like the working conditions was “free to leave.” According to the Court of Cassation, this statement gives the employee the alternative of accepting the working conditions imposed by the employer or losing their job, and it is irrelevant that this could be a “voluntary” decision. Such conduct is criminal because the working conditions indicated as an alternative to losing one’s job were unfair and unlawful.
The Court of Cassation affirmed the legal principle that an employer taking advantage of the favourable situation in the labour market due to supply over demand forced workers to accept, using a masked threat of dismissal, a worse remuneration which was not commensurate with the services provided, was extortion.
The Court of Cassation said the injured party’s subjective condition was not required to establish an offence. The latter takes place when the employer foresees the loss of the job, taking advantage of the natural condition of prevalence they have over the employee and the favourable market conditions.
