With its order no. 2246 of 26 January 2022, the Court of Cassation ruled that a manager who sent an angry email to the company’s top management engaged in conduct likely to disrupt the relationship of trust that binds them to the employer, even if it did not formally breach their work obligations.
Facts of the case
A senior manager was dismissed for just cause after he sent an email to the company’s top management saying: “You have betrayed my trust and good faith, and I do not know how long I can go on putting up with your behaviour that I consider disgraceful.”
The dismissed manager sued the former employer (i) claiming that such remarks had been caused by an episode that had triggered a strong psychological reaction and (ii) asked her to pay indemnity instead of notice, additional indemnity, under the provisions of the National Collective Labour Agreement for Industry Managers, and damages for demotion and harassment.
The Court of First Instance partially upheld the appeal, finding that the dismissal was “justified” under the relevant national collective labour agreement, i.e. neither vexatious nor arbitrary, even if dismissal lacked just cause. The Court ruled the manager should receive only the indemnity instead of notice and rejected the other claims.
The Court of Appeal complied with the Court of first instance ruling, pointing out that “the words aimed at the employer in the contested email (…), while not constituting just cause for dismissal, provided the justification based on collective bargaining, which implies no additional compensation. This is in light of the top management role and subsequent higher trust relationship.”
The manager appealed to the Court of Cassation.
The Supreme Court of Cassation’s ruling
The Court hearing the case noted that, according to settled case-law, “for manager dismissal justification purposes,” an analytical verification of specific conditions is not required, but it is sufficient to make an overall assessment that excludes the termination arbitrariness since it was due to circumstances likely to disrupt the bond of trust that bound him to the employer. Any reason for termination, based on coherent grounds and legally appreciable reasons, thus becomes relevant. Based on the general principles of good faith and contractual fairness, the manager’s conduct was considered suitable to disturb the relationship of trust with the employer, even in the absence of a formal breach of employment obligations.
According to the Court of Cassation, the termination is justified by the need of the entrepreneur to fully rely on the manager for the execution of directives.
Given the above, the Court of Cassation dismissed the manager’s appeal and ordered him to pay the costs of the proceedings.
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The Court of Asti, with the order of 5 January 2022, ruled that the quarantine period (as per art. 26, paragraph 1, Decree Law 18/2020 applicable ratione temporis) or voluntary homestay is not valid for calculating the protection period, not only vis-a-vis subjects who have had close contact with confirmed cases, but also regarding subjects who end up positive for Covid-19. This is because it is impossible by law to perform the job regardless of the presence of symptoms or not linked to the pathology.
In the case in question, the worker, following contact with a colleague turned out to be positive to Covid-19, she was first put in quarantine and later, following a positive swab result, in voluntary homestay. The employer dismissed her for exceeding the protected period according to the sector national collective bargaining agreement.
The worker challenged the dismissal in court, claiming that:
In contrast with what the employee sustained, the employer sustained that the protection included in art. 26, paragraph 1, of Degree Law no. 18/2020 only refers to the quarantine periods with active monitoring or voluntary homestay with active monitoring ordered by the authority and not also the case in which the worker had caught the Covid-19 infection.
According to the Judge assigned to the case, during the protected period the days of absence due to quarantine or voluntary homestay provided by the law to fight the spread of the virus should have not have been calculated.
The Judge – in citing art. 26, paragraph 1, of Decree Law no. 18/2020 as amended by subsequent legislative interventions that extended the timeframe – underlined how such provision was introduced with the aim of protecting workers forced to be absent from work because subject to quarantine or voluntary homestay measures equating such absence to illness and excluding it from the calculation for the protected period.
In light of the above, according to the Court, in the case in hand, the days of absence required for quarantine and those ordered for homestay due to testing such worker for the virus should not have been calculated for the purpose of exceeding the protected period.
The sentence reads that “the ratio of the law is not to have the worker suffer the consequences for absences from work due to prevention and containment measures provided by law and undertaken with measure of the authorities to limit the spread of the Covid-19 virus, in all cases of possible or clear infection from the virus and regardless of the condition of the illness that – as already known – may exist with or without the infection (asymptomatic positive cases)” It later states “even in the case of infection with illness, what really separates Covid-19 from other illnesses is the impossibility, authoritatively imposed, for the worker to perform their job and for the employer to receive it in legally and administratively expected times, times that – once again – are regardless of the development of the illness but depend on the mere positiveness or negativeness of the virus”.
Based on these considerations the Court granted the worker’s appeal, cancelling the dismissal and (i) reinstatement in her job as well as (ii) payment of damages equal to the last overall remuneration from the day of dismissal until that of effective reinstatement, and in any case not greater than 12 months salary of overall remuneration, as well as interest and revaluation as per law as well as payment of welfare and social security contributions.
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With ruling no. 2629 of 10 November 2021, the Court of Milan considers that the dismissal prohibition introduced by the emergency legislation applies to executives.
Facts of the case
With an appeal under art. 414 of the Italian Code of Civil Procedure, an executive requested the Court of Milan to ascertain and declare the nullity of his dismissal for breach of the emergency regulations. Furthermore, he asked for reinstatement and compensation for damages equal to an indemnity proportional to the last total salary from the dismissal date to the reinstatement date and no less than five months’ salary, plus interest and revaluation from the date of settlement accrual and payment of social security contributions.
The executive’s former employer, which appeared before the Court, requested the rejection of the claims submitted by the manager.
The Court’s decision
In upholding the executive’s appeal, the Court pointed out that the dismissal letter showed that the executive had been dismissed for cost containment to manage the company more profitably, which was linked to the COVID-19 health emergency. The dismissal letter stated that “within twelve months, (…) he would have reached the age of 67, the age set by law for obtaining the pension, receiving the relevant emoluments and the indemnity instead of notice.”
According to the Court, it is clear from the letter of dismissal that this was not an ad nutum dismissal but an ineffective dismissal for financial reasons.
As far as we are concerned, the Court observed that the dismissal prohibition during the emergency period applies to executives. The interpretation according to which this prohibition would not apply to them cannot be reasonably confirmed by a constitutionally oriented understanding of Art. 14 of Decree Law no. 104/2021.
The reference to art. 3 of Law 604/1966 to identify the type of dismissal covered by the prohibition, namely dismissal for objective reasons, “is intended solely to identify the type of dismissal covered by the prohibition, namely dismissal for objective reasons, based on the reasons given in the termination notice.” The fact that the rules on dismissals apply only to managers, clerks and workers is irrelevant since the legislature intended to prohibit all “financial-based” dismissals. The reference made by art. 4 of Law 104/2020 is only to art. 3 and not to the entire Law 604/1966.
In addition, it is common ground that executives are subject to the rules governing collective redundancies. According to the Court, it was illogical to exclude executives from the dismissal prohibition scope, which includes their collective dismissal.
That conclusion appears to be supported by applying the protection’s sanctioning system for executives’ null and void dismissal because it was made in breach of a prohibition laid down by a mandatory rule.
According to the Court, the justified reason supporting an executive’s dismissal cannot be disregarded under Art. 5 of Law 604/1966. “The contractual justified reasons legitimising executive dismissals are contained in the less extensive objective justified reason for dismissal.”
Excluding executives from dismissal prohibition was inconsistent with a constitutionally-oriented interpretation of the rules concerning the principle of equality and reasonableness. The Court referred to the Court of Cassation, which stated different rules could be applied to executives “provided that they are situations capable of justifying an exceptional regime regarding other appreciable interests and the limits of reasonableness are not exceeded.”
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This ruling is part of the case law debate in which the Court of Rome, by order of 26 February 2021, firstly declared illegitimate the individual dismissal for financial reasons of an executive during the period when the dismissal prohibition was in force and then, by decision of 19 April, legitimised that type of dismissal.
Altri insight correlati:
In its ruling no. 376 of last 23 November, The Court of Florence declared the unilateral terminations made by a digital platform of home food deliveries (the “Company“) from the relationships in place with individual workers (“riders“) ineffective, following a failure to adhere to the National Collective Labour Agreement (the “NCLA“) signed by Assodelivery, the trade association representing the Italian food delivery industry to which the Company belongs, and UGL rider – the trade union.
The matter arose in October 2020 after the stipulation of the NCLA with UGL through Assodelivery, the Company sent a communication to (about 8,000) riders asking them to sign a new work contract as an essential condition for continuing the relationship.
With an appeal filed on 25 February 2021, the trade unions FILCAM CGIL FIRENZE, NIDIL CGILFIRENZE and FILT CGIL Firenze brought an action against the Company opposing the decree under art. 28 of the Workers’ Statute issued on the previous 9 February by which the appeal brought by the same parties for the alleged anti-union conduct of the Company was rejected, which was based on:
The Court of Florence clarified that riders must be considered employees, and the management of the relationship with them must be subject to the relevant rules, including those on termination.
As for the notice sent by the Company, the Court found (i) there was no consultation with the trade unions that the Tertiary Distribution and Services would have been required by the Collective Labour Agreement applied to its employees and (ii) it was intended to simultaneously terminate the relationship with more than 8,000 riders, constituting a “significant change in the company organisation.”
According to the Court, since it was undisputed (because it was uncontested) that some riders equal to or greater than five had prematurely terminated their employment following the Company unilateral change, the procedures provided for by Law 223/1991 should have been used, including “prior written notice (in the absence of rsa or rsu – union representatives) to the trade associations belonging to the most representative confederations at a national level.”
According to the Court, the plaintiff associations fall within the scope of the recipients of the above communication as they are trade associations. Furthermore, each of them has multiple-factor organised and quasi self-employed workers who are members of a confederation such as CGIL, which is representative at a national level.
The Court of First Instance observed that elements such as how the agreement was signed, the lack of discussion between the union and riders, absence of disputes brought by UGL, contract content that excluded UGL from the European Economic and Social Committee and the failure to continue negotiations with other trade unions to stipulate further and different contracts, were “unequivocal and concordant elements in favour of the union’s (UGL rider) unrepresentative nature and the discriminatory nature of the privileges granted to it which were unjustified by the union’s bargaining strength.”
On these grounds, the Court, accepting the union representatives’ appeal, ordered the Company to immediately cease the anti-union conduct, condemning it to initiate the consultation and discussion procedures provided for by the Tertiary Distribution and Services Collective Labour Agreement and the information and consultation procedures under Law 223/1991. In addition, the Company was ordered to publish the full decree text at its own expense and once in some specific local newspapers and pay the costs of the proceedings (including the summary stage) to the plaintiff union.
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The order to immediately cease applying the Ugl rider NCLA remains, to date, limited to the local jurisdiction of the Court of Florence, which has ruled on the matter.
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With its order no. 30478 of 28 October 2021, the Court of Cassation ruled that the employer is not obliged to warn the employee who cannot work about the imminent achievement of the maximum relationship protected period, nor to suggest alternative means to the absence due to illness (holidays, leave of absence).
The case originates from an appeal against an employee’s dismissal for exceeding his protected period, which was based on the concept that the employer should have informed him of the imminent expiry of his protected period.
The Court hearing the case, declared the dismissal unlawful, while the Court of Appeal overturned the decision of the first instance. The unsuccessful employee appealed to the Court of Cassation.
The Court of Cassation confirmed the dismissal’s legitimacy, and noted that in the absence of any obligation under the collective bargaining agreement, the Company did not have to warn the employee of the imminent expiry of the protected period for illness to allow the employee to exercise the right to request a leave of absence.
According to the Court of Cassation, the dismissal in question is justified by the prolonged objective absence due to illness, exceeding the maximum duration set out in the sector NCLA and, therefore, the impossibility to work. Such dismissal was not disciplinary and prior notification of absence is not required. The employer did not have to provide the employee with a list of absences at the time of dismissal but only if requested after the dismissal.
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