The Court of Cassation, in ruling no. 20560 published on 19 July 2021 confirmed the facts subject of a plea bargain in a criminal case must be established (with the effect of res judicata) to any pending civil proceedings concerning the same findings. The Supreme Court’s ruling stems from the lawful dismissal for misconduct by the Ministry of Justice of a court clerk for having – together with other colleagues – falsely certified his presence at work.
The parties were first involved in a criminal trial that ended with a plea bargain. Later the employee appeared before the Employment Tribunal to the appeal against the employment termination. In the employment proceedings, the Court of Appeal of Milan, overturned the judgement of the Court of Lodi which had initially upheld the employee’s appeal, ruled on the legitimacy of the disciplinary dismissal imposed on the employee. It found (based on the plea bargain) that an unlawful system was operating at the judicial office in which certain employees covered for each other’s tardiness and absences by abusing the clock-in badge system.
The seriousness of the conduct was further increased by the fact that the appellant was the chief registrar. The employee challenged the judgement handed down by the local Court on several grounds, including the alleged infringement of Articles 115 and 2697 of the Code of Civil Procedure about availability and burden of proof, since the Court of Appeal based its belief on facts established in the criminal proceedings. In the employee’s view, the plea-bargaining judgement could not have been used as a basis for the employment judge’s finding because it came after the dismissal and was incapable of providing elements for assessing the actual existence of the act and its seriousness. The grounds of appeal were rejected by the Supreme Court, which confirmed the dismissal legitimacy.
Continue reading the full version published in Norme & Tributi Plus Diritto of Il Sole 24 Ore.
In a 2 July 2021 order, The Court of Milan ruled that, dismissals announced by the same company to six executives, in the same period and based on the same objective reasons, were part of the collective redundancies subject to the prohibition during the pandemic. The Court held that it was irrelevant that four of the six dismissals had been revoked, the employment relationship reinstated and subsequently terminated by mutual consent.
In February 2021, a company in liquidation dismissed an executive for objective justified reasons on the grounds of an alleged reduction in business activity and turnover and the termination of his position. The executive challenged the dismissal in Court, pointing out that, within about six weeks and based on the same objective grounds, the company had dismissed five other executives, implying that his dismissal was covered by the collective dismissals referred to in Articles 4, 5 and 24 of Law no. 223/1991, prohibited by the emergency Covid-19 legislation.
The company, which appeared in Court, pointed out that during that period, there had been two dismissals and not six, since four of the six executive employment relationships had ended consensually and against a financial incentive (the notice of dismissal had been followed by a revocation, reinstatement of the relationship and consensual termination).
The Court upheld the executive’s appeal, holding that the subsequent revocation of four of the six dismissals was irrelevant and could not prevent the case from being one of collective redundancy since the wording of Art. 24 of Italian Law no. 223/1991 leaves no room for any other interpretation.
Under the above law, an employer who employs more than 15 employees and intends to make at least five redundancies within 120 days because of a reduction or transformation of business or work, must comply with the procedures laid down by the same law. Therefore, for collective redundancy definition purposes, it is irrelevant if the number of employees dismissed is lower.
In this case, in the Court’s view, the numerical requirement under the law had been met upstream when the company had made six redundancies within about six weeks, openly expressing its intention to terminate the employment relationship.
Having ascertained the existence of collective dismissal, the Court found that the executive’s employment termination was null and void for breach of the rules on the collective dismissal prohibition laid down in Art. 46 of Decree Law no. 18/2020 and repeatedly extended “whose imperative nature and public order reasons cannot be doubted”. The Court ordered the company to reinstate the executive in his job and pay him compensation.
Other related insights:
On 16 June 2021, Confcommercio Imprese per l’Italia and Manageritalia signed an agreement to extend the NCLA of 21 July 2016 until 31 December 2021. With the same agreement, the Social Partners have amended some Agreement provisions. The main changes include the maximum duration of the protected period, which is confirmed as 240 days in a calendar year, clarifying that “calendar year” means 365 days backwards from the last illness. In addition, from July 1th , 2021, the employer shall pay to an organisation called CFMT (Centro di Formazione Management del Terziario – Tertiary Management Training Centre), , a contribution of €2500 – if there is an employment relationship termination, including following a settlement agreement or conciliation, except in the case of termination for just cause, disciplinary dismissal, voluntary resignation and consensual termination – for the activation of an outplacement service or for access to active policy programmes aimed at outplacement of executives. New concepts are introduced about the notice period commencement in case ofresignation or dismissal. The notice period for dismissal, from 1 July 2021 shall commence on the 1st or 16th day of each month, depending on whether the employer receives the resignation notice in the second fortnight of the previous month or the first fortnight of the current month, respectively. Effective from 1 July 2021, the notice period for dismissal shall run from the 1st or 16th day of each month, depending on whether the executive receives the dismissal notice in the second fortnight of the previous month or the first fortnight of the current month, respectively. The executive shall be entitled to receive their full remuneration for the portion of the month in which the dismissal notice was received.
Other related insights:
Although the redundancy fund for the workforce (or a department) takes precedence over sick pay, the protected period continues to apply. This means that the dismissal of an employee who exceeded the protected period in such circumstances is legitimate.
In a 17 July 2021 order, the Court of Foggia ruled on the validity of a dismissal that exceeded the protected period. The Court stated that even if the wage supplement replaced the relevant daily allowance during illness, the employer could not arbitrarily change the reason of the employee’s absence, so the protected period continued to run during a certified illness unless the employee requested a change in the attribution of their absence from work.
In this case, an employee was dismissed for taking 430 days of sick leave instead of the 420 days provided for by the collective agreement applied to the employment relationship. The employee took legal action requesting the dismissal be declared unlawful, arguing that he had been placed, together with the other company employees, under the ordinary redundancy fund for Covid-19, which had legally replaced the sick leave he was taking. To support his claim, the employee refers to Art. 3, paragraph 7, of Legislative Decree no. 148/2015, and INPS Circular no. 197/2015, according to which “the wage subsidy replaces the daily sickness allowance in case of illness, and any contractually provided supplement.” The Court rejected the appeal referring to the arguments expressed by the Court of Pesaro in ruling no. 16/2021 and pointed out that with the above art. 3, paragraph 7, of Legislative Decree no. 148/2015, the legislator intended only to provide for a different attribution of the financial benefit received by the employee when using a period of wage subsidy, which remains, however, the responsibility of INPS (as in the case of illness), without intervening on the absence reason which pertains to the private relationship between employee and employer. Such a different attribution has nothing to do with the protected period and the work suspension. According to the Court, the employer cannot arbitrarily change the employee’s absence reason when they are on sick leave because that would mean giving the employer extra ordinem power, which would be contrary to a constitutionally guaranteed right, such as the right to health.
Continue reading the full version published in Norme & Tributi Plus Diritto of Il Sole 24 Ore.
Our system’s real problem is an absence of serious active employment policies. De Luca & Partners managing partner Vittorio De Luca, discusses the agreement on the end of the dismissal prohibition and Decree Law 99/2021, just approved by the Draghi government. “An explosion of redundancies is nothing more than the consequence of a ban that has gone on too long. Further generalised extensions would only have made the situation worse. The prohibition has prevented companies from renewing for far too long and paralysed worker redeployments. Finally, they will now restart and move the market and employment again.”
Another hot topic is the reform of social safety nets, which has been announced many times and is increasingly necessary during the post-pandemic period. “The social safety net system, after the 2015 reform, is fragmented and cannot protect the categories affected by the recession and provide financial benefits that represent decisive and lasting support. The pandemic has clearly shown the limits of our social safety net system. It is essential
to proceed with a comprehensive reform quickly.
The government has reached an agreement with the social partners on the dismissal prohibition. “The agreement includes a “commitment” to use all existing social safety nets before resorting to redundancies.
However, it is just a form of moral persuasion. Moreover, this commitment is unmentioned in the new decree text. This is small consolation for those clamouring for a further extension of the dismissal prohibition.”
