The selective criterion based on the number of employees is unsuitable to legitimise a diversification of the consequences of null dismissal
If the nullity of dismissals for exceeding the protected period is confirmed, the special penalty regime under paragraph 7 of Art. 18 of the Workers’ Statute applies. This includes the reinstatement, regardless of the number of workers employed.
In its ruling no. 27334 of 16 September 2022 , the Court of Cassation tackled the complex issue of the choice between compensation and reinstatement, to be granted to an employee unlawfully dismissed at the end of the protected period, i.e., the time during which they are entitled to keep their job during illness.
In the case examined by the Court of Cassation, a worker took legal action against her employer (a company with less than 15 employees) which dismissed her for exceeding her protected period. She requested work reinstatement and damage compensation.
The Courts of first and second instance, found that the dismissal was null and void, excluded the days of absence due to an accident at work from the protected period calculation, however they ordered different types of protection.
The first instance Court ordered reinstatement, while the Court of Appeal ordered compensation, as paragraph 7 of Art. 18 of Law no. 300/1970 is applicable exclusively to employers with more than 15 employees.
Overruling the decision of the Court of Appeal, the Supreme Court ruled that dismissal for exceeding the protected period under Art. 2110, paragraph 2) of the Italian Civil Code is a unique case of dismissal (unrelated to the concept of justified reason under Art. 3 Law no. 604/66). The violation of this article entails the dismissal’s definitive nullity.
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In the recently approved Aiuti ter decree, there is a squeeze on provisions applicable to employers with more than 250 employees who intend to lay off at least 50 employees, due to branches or plant closure as part of a definitive business termination.
De Luca & Partners managing partner lawyer Vittorio De Luca, said: “The government’s decision was likely to be dictated by the clouds looming internationally and within the Italian production system, due to the energy crisis and the increase in raw material costs.”
The period in which the employer must discuss the plan to limit the employment and economic fallout from the closure with trade union representatives and in the presence of the Ministry of Labour was extended to 90 days.
De Luca said: “If production or a significant part of it is definitively terminated, companies will have to return any subsidies, grants or financial aid received ten years before starting the procedure.” When a possible recession is announced, it becomes necessary to reform social safety nets and active labour policies organically to limit an explosion of redundancies.”
In its order no. 25287 of 24 August 2022, the Court of Cassation ruled on remote controls carried out by the employer and confirmed the legal principles within which the employer may use a detective agency. According to the Supreme Court, the employer may use a detective agency if offences have been committed or there is a suspicion that offences are being committed
The case submitted to the Court of Cassation concerns an employee who worked under a flexible work regime.
The worker was accused of having left his place of work, during working hours, for tasks unrelated to his job. A detective agency recorded meetings outside the place of work (supermarkets and gyms), unrelated to work, in places tens of kilometres away from the workplace. The worker was later dismissed.
The employee lodged a judicial appeal against his dismissal for having left his place of employment, during working hours, and for carrying out tasks unrelated to his job.
The Court of first instance and the Court of Appeal of Rome held that the checks carried out by a detective agency were lawful. The checks related to the position of a bank employee since his employment required stricter compliance with the obligation of loyalty and the related rules of diligence and fairness. These checks were part of a broader investigation into the worker 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.
The local Court considered the findings relating to the failure to comply with the obligation to deliver the documentation requested by the worker and the untimeliness of the charge notification unfounded.
The worker challenged the decision, appealing to the Court of Cassation, based on four grounds. We will focus on the first three.
In the first ground of appeal, under Art. 360 no. 3 Italian Code of Civil Procedure, the worker alleged violation and false application of Articles 2, 3 and 4 of Law no. 300/1970 (“Workers’ Statute”) on work performance monitoring by an external detective agency. He stated that such monitoring must be limited to unlawful acts not attributable to the worker’s failure to fulfil their obligations. His argument was that such surveillance could not become work supervision since this task must be performed directly by the employer and its employees under Art. 3 of the Workers’ Statute.
In his second ground of appeal, the appellant alleged failure to examine a decisive fact about the unlawful monitoring of work performance and working conditions by an external detective agency. He argued that the Court of Appeal failed to consider that the employer’s informants were instructed to verify work performance and monitored the employee beyond normal working hours, checking in detail the way work was carried out.
In his third ground of appeal, under Art. 360 no. 3 Italian Code of Civil Procedure, the worker alleged violation and false application of Articles 24 of the Constitution and 7 Law no. 300/70, highlighting the violation of the worker’s right of defence and failure to apply the guarantees imposed by the Workers’ Statute. He argued that the Court of Appeal failed to admit the submission of the documentation requested by the appellant, consisting of the personal file, annual profit assessment certificates, attendance sheets from September 2015 to July 2016, and the mandate signed with the detective agency.
The Court of Cassation mentioned Articles 2 and 3 of Law no. 300/1970, which restrict the action of those appointed by the employer (to defend its interests, and protect the company’s assets) – Art. 2), and work performance supervision – Art. 3). These protect the worker’s freedom and dignity, consistently with constitutional provisions and principles.
The Court of Cassation pointed out that the above rules do not preclude the entrepreneur using external parties, such as a detective agency. However, this control cannot concern the performance or non-performance of the worker’s contractual obligation to perform their work, since these activities cannot be under this kind of supervision (Court of Cassation ruling no. 15094 of 11 June 2018).
External controls must be limited to the worker’s wrongful acts that cannot be traced back to the non-performance of the obligation (see Court of Cassation ruling no. 9167 of 7 June 2003).
The Supreme Court stated that detective agencies, to operate lawfully, cannot supervise work performance and this principle had been established under cash law. Under Art. 3 of the Workers’ Statute, this task is directly assigned to the employer and its employees.
Using a detective agency is justified if offences had been committed and needed to be verified, even when there is a suspicion that offences are being committed (Court of Cassation ruling no. 3590 of 14 February 2011).
The Court of Cassation ruling no. 15867 of 26 June 2017, stated that “if the employer is precluded from directly or indirectly controlling the work performance, the principle does not apply in cases where workers carry out impermissible conduct outside their normal work. The control is justified if offences had been committed and needed to be verified, and when there is a suspicion that offences are being committed (see Court of Cassation, labour Section ruling 14/2/2011 no. 3590: “The provisions of Art. 2 of the Workers’ Statute, in limiting the actions of those appointed by the employer to protect the company’s assets, do not preclude it from resorting to detective agencies, if they do not supervise work performance. Under Art. 3 of the Statute, this task is carried out directly by the employer and its employees. The service described above is justified if offences had been committed and the needed to be verified or if there is a suspicion that offences are being committed”; (Court of Cassation ruling 20/01/2015 no. 848 and Court of Cassation, ruling 11/10/2016, no. 20433).“
Controls outside these limits are precluded by the principle of good faith and the prohibition under Art. 4 of the Workers’ Statute, in the ratione temporis applicable wording, which includes the prohibition of secret work performance checks, even if work is performed outside company premises. This is without prejudice to cases where private investigators may verify conduct constituting criminal offences, such as, exercising paid services for third parties during working hours.
Continue reading the full version published in Modulo24 Contenzioso Lavoro (Form24 Labour Litigation of Il Sole 24 ore.
The court may recognise different solutions for identical cases
To exclude the proportionality of dismissal, it is not enough to argue that similar conduct committed by other employees has been sanctioned with conservative measures. The court may recognise different solutions for identical cases.
This principle was upheld by the Court of Cassation in Order no. 22115/2022 of 13 July 2022, which confirmed the legitimacy of an employee’s dismissal for having caused an accident while driving his service vehicle. The accident was caused by the incorrect positioning of the front-mounted crane, which damaged a bridge located on a provincial road.
In this case, the employer company considered the accident a serious breach of contract. In addition, the employee failed to fill in a compulsory parking disk and tachograph, which attests to the vehicle speed. The company terminated his employment without notice.
The Bologna Court of Appeal confirmed the dismissal was legitimate and commensurate based on the conduct’s seriousness and severe damage of the bond of trust.
The worker appealed to the Court of Cassation against this decision, claiming that the local court, when confirming the dismissal’s legitimacy, considered it irrelevant to compare the case to the treatment given by the company to other employees who committed similar conduct. The worker referred to previous case law where such” situations can remove the dismissal of its justificatory basis” (Court of Cassation ruling no. 14252/2015).
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In its ruling no. 20 of 27 May 2022, The Court of Udine stated that absence from work without providing any justification to force the employer to dismiss for unjustified absence, is unlawful. Such conduct constitutes resignation by facta concludentia, even without complying with the electronic procedure.
The Court ruled that a worker who did not carry out the procedure, absented herself for several days to force her employer to dismiss her for unjustified absence to obtain NASPI had conducted unlawful behaviour. The Court held that the conduct of the employer who notified the employment centre of the worker’s resignation, thus depriving her of her right to unemployment benefits, was correct.
The employment termination must be out of the worker’s control, for example in cases of disciplinary dismissal, to obtain the NASPI payment.
This is the reason for the unlawful practice by certain employees of voluntarily and unjustifiably absenting from work to be dismissed for just cause and receive unemployment benefits.
The Court stated that the electronic procedure under Art. 26 Legislative Decree no. 151/2015, while having the objective of ensuring the authenticity of the resignation submitted by the worker and allowing them to be free from conditioning, did not abrogate the effects of Articles 2118 and 2119 of the Italian Civil Code, which offered the worker the opportunity to resign “de facto” by conduct through a series of workplace absences.
The Court of Udine’s interpretation allows employment termination by conduct; a requirement included in the delegated law no. 183/2014 which remained unimplemented in Legislative Decree no. 151/2015. If the worker does not act in submitting a formal resignation – which has already factually occurred – the employment termination cannot be achieved only by dismissal for just cause.
Such a solution would be “unreasonable” and “of dubious constitutional compatibility” and contrary to the principles of reliance and good faith in an objective sense. A dismissal “imposed” on the employer would give rise to a public benefit disbursement to the dismissed person to protect a fictitious unemployment. This unemployment resulted from free choice and not involuntarily suffered by the worker.
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