The employee’s unjustified refusal to perform the relevant duties constitutes a conduct liable to cause a breach of the fiduciary relationship underlying the employment relationship, which may also lead to the disciplinary dismissal of the negligent employee.
However, according to case law, under certain conditions, the employee’s refusal may be considered justified. Recently, in fact, the Labour Section of the Court of Cassation, by order no. 770 of January 12th, 2023, ruled out the unlawfulness of a refusal to work opposed by an employee and motivated by the fact that its execution, according to the modalities required by the employer, would have entailed a danger to her safety.
The Italian Court of Cassation, Labour Section, by judgment no. 381 of January 10th, 2023, stated that disciplinary dismissal of an executive can be lawfully triggered even if a “just cause” of dismissal does not occur being sufficient for this purpose that the dismissal is “grounded on any breach which might undermine the reliability and trust that the employer must place on the executive”.
By judgment of February 2nd, 2023, the Court of Appeal of Brescia, Labour Section, stated that the extent of the compensation for damages due to the employee, whose dismissal has been declared null and void as retaliatory, must be determined in relation to the period reasonably necessary to find new employment and not to the overall monthly payments between the date of dismissal and reinstatement.
The issue of the burden of proof concerning the compatibility between the illness and the employee’s extra-working activities performed during the sickness is subject of case-law contrast still unsettled. According to a first opinion relying on the so-called criterion of proximity to proof (among others, Italian Court of Cassation, Labour Section, judgement no. 9647 of April 13th, 2021), the burden of proof lies with the employee because only the sick party can have direct or indirect knowledge of fact (i.e., the illness) in its detail and course. On the other hand, a second and majority opinion considers that the burden of proof lies with the employer, who must prove all the objective and subjective circumstances potentially liable to jeopardize or delay the recovery and return to work (among others, Italian Court of Cassation, Labour Section, judgement no. 13063 of April 26th, 2022).
According to a well-established case law (among others, Italian Court of Cassation, Labour Section, judgement no. 6047 of March 13th, 2018), the employee – absent from work due to illness – must refrain from carrying out extra-work activities that may compromise or delay – even potentially – the recovery and the return to work, according to the nature of the pathology and the duties performed, while he/she is allowed to carry out other activities, even if of a recreational nature, provided that such activities are not prejudicial to the convalescence and resumption of work.
According to settled case law, a dismissal can be considered as “retaliatory” if justified by an unfair and arbitraryreaction to an employee’s lawful conduct relating to the exercise of rights arising from the employment relationship or in any event connected thereto (ex multis, Supreme Court, Lab. Sect., judgment no. 26395, of September 7th, 2022). The presence of a legitimate reason for dismissal (i.e. objective or disciplinary) tends to exclude any retaliatory nature (Italian Court of Cassation, Labour Section, , judgment no. 2414 of January 27th, 2022). The burden of proof regarding the retaliatory nature of the dismissal must be borne by the employee (Italian Court of Cassation, Labour Section, judgment no. 11705, of June 17th, 2020).
The term ‘mobbing’ embraces all harassing, repeated and sustained individual and/or collective conduct directed against an employee in order to marginalize or force him/her out of the work environment. Depending on who engages in such conduct, it is customary to distinguish between:
The main identifying features of mobbing are:
Mobbing integrates a breach of the employer’s obligation to take the necessary measures to protect the physical integrity and moral personality of the employee according to Article 2087 of the Italian Civil Code. As far as the burden of proof is concerned, it falls on the employee, subject to persecutory acts, to prove that he/she has suffered a damage to his/her psycho-physical integrity and the causal link between the harassing conduct repeatedly suffered and the harmful event.
The NCBA for employees of distribution and service companies provides that “during illness, the employees not in a probationary period have the right to retain their job for a maximum period of 180 days in a calendar year”. Recently, the Italian Court of Cassation, Labour Section, by judgement no. 5288 of February 20th, 2023, provided an in-depth examination of this provision, stating that, according to the NCBA for employees of distribution and service companies, the “sickness protected period” can be calculated either by reference to a single uninterrupted episode of illness (so-called “comport secco”) or by summing up different and distinct episodes of illness, occurred in a given reference period (so-called “comporto per sommatoria”). According to the Court of Cassation, the link between the maximum period of job retention (i.e., 180 days) and the calendar year shows the common intention of the parties not to limit the sickness protected perio to a single episode of illness, since, in this case, it would have been enough to provide that the illness should not exceed 180 days.
The sickness protected period (so called, in Italian parlance, “periodo di comporto”) is the period during which the employee, even if absent from work due to illness or accident, is entitled to preserv his/her job. The duration of such period is generally established by law, by national collective bargaining agreements or, failing that, by customs. Moreover, depending on the modalities by which the worker’s periods of absence are calculated, it is customary to distinguish between the so-called:
The probationary period allows the worker and employee to assess the suitability of their employment. During this period, the employment contract is definitively established, and the rights and obligations of the parties are effective. The only difference is that the parties may freely terminate the contract without having to give reasons or notice or pay any compensation in lieu. The related agreement may be included in any employment contract and must be signed simultaneously with the contract and before it starts. An agreement entered into after the relationship has been established is null and void and immediately becomes definitive.
The probationary period may be agreed upon even if there has been a previous employment relationship between the parties, as long as it is for a probation not carried out before. The agreement is permitted for different and subsequent relationships if the employer needs to verify or add elements compared to the previous assessment. However, probation is unlawful if there was a positive outcome during a previous employment relationship between the same parties for the same duties.
The probationary agreement must be in writing and signed by both parties. Otherwise, it is null and void and is not attached to the contract. The clause governing the agreement must include the duties entrusted to the worker. Otherwise it is null and void, and the employment is automatically a definitive contract from the beginning.
The Law sets the maximum duration of the probationary period at: (i) six months for workers and (ii) three months for non-managerial employees. Collective bargaining may require a shorter duration than the above legal time limits.
The term “working hours” means any period during which (i) the employee is at work, (ii) at the employer’s disposal and (iii) performing their work or duties (see Art. 1, paragraph 2, letter a), Legislative Decree no. 66/2003). The employer must pay wages and social security contributions if the requirements set out in points (i), (ii) and (iii) are met. The time taken by workers to reach the place of work is not considered working time unless it is indispensable for the service performance or the worker is under the employer’s instructions when travelling.
Standby duty is a request made to the worker to make themselves available outside working hours for a possible call from the company and a request for urgent work. The standby duty time regulation is left to national collective labour agreements or, failing that, regional or company agreements or internal regulations. In the absence of such agreements, it must be regulated by special arrangements with the worker, which may be included in the employment contract. It must not create excessive inconvenience in the worker’s family and social life. The worker must consent to make themselves available, and the employer must provide the worker with an appropriate allowance.
Normal working hours are 40 hours per week.} National collective labour agreements (CCNL) may establish a shorter duration for contractual purposes and refer the normal working hours to the average duration of work in a period not exceeding a year (see art. 3, Legislative Decree no. 66/2003). Article 4 of Legislative Decree no. 66/2003 states that the maximum duration of working time is established by the National collective labour agreements and cannot exceed 48 hours, including overtime, over seven days. The average working time is calculated against a four months maximum period, which may be extended (by collective bargaining) up to six or 12 months, but only for objective, technical reasons or reasons related to the work organisation specified in the collective agreements. Annual leave and sick leave periods must not be considered when calculating the “average” working hours.
The term “overtime” refers to work performed beyond regular working hours, i.e. the 40th hour or beyond any shorter duration mentioned by collective agreements. In the absence of applicable collective regulations, recourse to overtime by the employer must be limited and only allowed following the signing of an agreement between the worker and employee for a period not exceeding 250 hours annually.
Generally, the worker may be assigned to duties other than those established when hired, provided that they are of the same level and legal category as those last carried out (“fungible duties“), or duties corresponding to the higher classification that they have acquired (i.e., promotion). Any contrary agreement is null and void, except when assigned to lesser duties due to production requirements or by agreement between the parties (see below).
A worker may only be assigned lesser duties in limited situations. Demotion is permitted only if (i) a change in the company’s organisational structure affects the worker’s position; or (ii) cases provided for by collective bargaining. In such cases, the employer may assign the employee to lesser duties, if they belong to the classification level below and under the same legal category. This must be carried out in writing under penalty of nullity.
It is possible to change the worker’s legal category, classification level and remuneration by an agreement to be signed under “protected proceedings” or before a certification committee. However, the change is only allowed if it is in the worker’s interest (i) to maintain employment, (ii) acquire a different professional skill and (iii) improve living conditions (i.e., an agreement between the parties to maintain the worker’s position to avoid dismissal due to worker’s position being redundant).
A worker who has been unlawfully demoted may take legal action to obtain the assignment of the duties for which they were hired or tasks falling within the same classification and compensation for pecuniary and non-pecuniary damage. The burden of proof in court is on the worker.
A worker may be assigned to higher tasks with the right to a corresponding salary. Unless the worker decides otherwise, the assignment becomes definitive if it has not taken place because of a replacement of another worker, after the period established by collective agreements or six continuous months.
Holidays are an inalienable right of employees to replenish the mental and physical energy invested in work and participate in family and social life. They accrue over a period set by law during work performed or a period of absence that the law or national collective labour agreements equate to work performance. Subject to exceptions, the legal duration of the holiday accrual period is 12 months and is established by national or company contract. This accrual period may coincide with the calendar year (1 January to 31 December) or may correspond to 12 months starting on 1 August. It is customary to specify the employee’s days’ leave accrued in the pay slip.
Collective bargaining may reduce the minimum limit of two consecutive weeks’ holidays that a worker may take over 12 months. Any reduction must not nullify the holiday purpose and derive from work requirements or significant company needs.
As clarified in the Answer to question of the Ministry of Labour of 27 January 2012 no. 1, the employer can ask the worker who assists a disabled person a schedule of the three days of legally-recognised monthly leave in advance. The following conditions must be met:
The worker may unilaterally change the scheduled day and communicate to the employer.
A transfer is a change in the employee’s place of work that is permanent and of unlimited duration. Under art. 2103, last paragraph, of the Italian Civil Code, the employer may unilaterally decide to transfer a worker from one production unit to another (provided it is part of the same company). This measure must be supported by proven technical, organisational and production reasons. According to well-established case law, the reasons underlying the transfer must:
If the transfer has been ordered for technical, organisational and production reasons, the worker cannot usually refuse it. If they refuse, the employer may, under certain conditions, order disciplinary dismissal. If the worker considers the transfer unlawful, they may oppose it within 60 days of its notification by any written document suitable for making their will known. This document remains ineffective if it is not followed by filing a judicial appeal or notification to the employer for an attempt at conciliation or arbitration within 180 days.
For certain categories of workers the law provides for special rules on transfer, namely:
Collective bargaining may permit further limitations to the power of transfer: the National Collective Labour Agreement for Managers of Industrial Companies provides, for example, that the transfer must be notified in writing to the manager with at least three months’ notice, or four months’ notice if the manager has family members living with them, and that, unless otherwise agreed between the parties, an individual transfer cannot be made for a manager older than 55 years.
Unlike a transfer, which entails a permanent and timeless change in the employee’s workplace, travel means the temporary assignment to another location. Case law identified several indicators which identify travel and, particularly, (i) the permanence of the worker’s link with the usual place of work; (ii) temporary nature of the workplace change; (iii) work performance under employer’s orders.
Under art. 30 of Legislative Decree no. 276/2003, posting occurs when an employer (the posting party), to meet its interests, temporarily places workers at the disposal of another party (the hosting party) to perform a specific task. The requirements for a lawful posting are as follows:
The interest of the posting employer can be identified as any production interest, even if non-financial in the strict sense, provided that it is specific, relevant, tangible and persistent. The Court of Cassation has recently recognised this interest in increasing the professional expertise of the posted worker (ruling no. 1745/2020) during a temporary crisis. Temporary does not mean longer or shorter posting duration, but “not being definitive.” The posting duration doesn’t have to be predetermined ab origine but must always coincide with the employer’s continued interest. The specific work requirement means that the worker must be assigned to particular functional tasks to meet the posting party’s interest. Posting cannot be part of generic staff provision without predetermining the tasks.
Art. 30 of Legislative Decree no. 276/2003 provides that the seconded worker may be consensually assigned to duties other than the original. The same provision states that if the posting entails a transfer to a production unit located more than 50 km from where the worker is employed, it is lawful only if justified by proven technical, organisational, production or replacement reasons.
The basic remuneration elements are those payments that are an integral and essential component of the worker’s pay.
The contractual minimum is the minimum remuneration due to the worker, which is established based on the collective agreements related to each contractual qualification. The contingency allowance is an amount that, until 31 December 1991, adjusted pay to cost-of-living increases. It was based on a calculation system that required a six-monthly updating of a sum that was the same for all workers and a variable sum depending on the reference sector and qualification. Since 1 January 1992, the contingency allowance accrued up to that date has been paid. In some National Collective Labour Agreements, it is included in the contractual minimum. The cost of living allowance (EDR) has been paid since 1 January 1993 to all private-sector workers (except managers) and is € 10.33 per month for 13 months.
If there is an employment termination, the worker is entitled to a severance pay (TFR). This indemnity is calculated by adding up a quota equal to and not exceeding the amount of the salary due for the same year divided by 13.5 for each year of service. The amount is proportionally reduced for fractions of a year, with fractions of a month equal to or more than 15 days being counted as a whole month. Unless otherwise provided for in collective agreements, the annual remuneration for calculating the severance pay includes all sums, including the equivalent of benefits in kind, related to the employment relationship, on a non-occasional basis and excluding paid reimbursement of expenses.
Our legal system requires non-reducible remuneration, under which the employee may receive the salary agreed with the employer when they were hired. Any contrary agreement with the worker must be considered null and void. The exception to the non-reducible remuneration is contained in Art. 2103 of the Italian Civil Code which allows individual agreements to change duties, legal category, classification level, and related remuneration (in a worsening sense for the worker). Legally, any pay reduction must be in the worker’s interest to (i) preserve employment (ii) acquire different professional expertise, (iii) improve living conditions.
The employer may initiate disciplinary proceedings against an employee if there is a failure to comply with the instructions, loyalty, fairness and diligence imposed by law and obligations and duties specified by the National Collective Labour Agreement.
Disciplinary sanctions are divided into conservative and non-conservative sanctions. The conservative sanctions are: (i) verbal reprimand; (ii) written warning; (iii) fine; (iv) suspension and (v) transfer. The non-conservative sanction is disciplinary dismissal, which may be for a justified subjective reason or just cause, depending on the offence’s seriousness.
The employer may investigate to acquire evidence against the employee and formally notify them of any charges. Notification is a condition of the disciplinary measure, even if the worker knows of the charges.
Charges must be contested promptly; the immediacy must be assessed based on: (i) the time the contested fact was committed, or; (ii) when the employer became aware of the infringement, suspicion is not sufficient. The immediacy requirement is compatible with the interval of time necessary for the precise verification of the worker’s conduct and for the employer’s appropriate evaluations and consequential decisions. Timeliness must be excluded when the time elapsed has led the worker to legitimately believe that they have waived their disciplinary power. A sanction applied too late damages legitimate expectations and defence rights.
Infringements involving disciplinary sanctions that are more serious than a verbal reprimand must be notified in writing. This is a crucial requirement for certainty and immutability purposes and to set the deadline for applying the disciplinary sanction. The law does not specify how the document is delivered to the worker. Generally, the presumption of knowledge for unilateral acts as laid down in the Italian Civil Code are effective when they are received, i.e. the document is presumed to be known once it reaches the recipient’s address, regardless of the recipient refusing to accept the document. Within five days of the complaint, the worker can reply by submitting a written or oral defence.
Precautionary suspension is a provisional measure that is instrumental in verifying facts relating to the worker’s violation of employment obligations, which ends its effects with the revocation or adoption of disciplinary actions. Precautionary suspension may be provided for by collective bargaining but, if this is not the case and the conditions are met, the employer has the power to order it (Court of Cassation 15.11.1999, ruling no. 12631). Precautionary suspension is a legitimate act of the employer, provided that (i) the suspended employee is paid the relevant salary and (ii) it does not continue beyond the conclusion of the disciplinary proceedings.
Dismissal for just cause and justified subjective reason fall into the category of disciplinary dismissals, i.e. dismissals for reasons related to the worker’s conduct that causes a breach of trust on which the relationship with the employer is based. Just cause is defined as worker conduct (including non-work-related conduct) that is so serious as not to allow the even temporary continuation of the employment relationship. The employer may terminate the relationship without giving the employee any notice (summary dismissal). Dismissal for a justified subjective reason may be ordered if there is a significant breach of the employee’s contractual obligations, which is not so severe as to interrupt the continuation, even temporary, of the employment relationship. In this case, the employer must give notice or pay the employee the related indemnity in lieu.
Dismissals for justified objective reasons are linked to production, organisation of work and its regular functioning. According to the case law, for dismissal based on justified objective reason to be legitimate, it is necessary that: (i) the reasons must be confirmed and based on circumstances existing at the time of dismissal; (ii) there must be a causal link between the dismissal reasons and the worker dismissal; (iii) the choice of the employee to be dismissed must have been made under criteria of fairness, and good faith; (iv) the impossibility of redeploying the worker to other duties (repechage) must have been verified; (v) the notice period must be met or related indemnity in lieu paid.
The employer must give the worker notice (under the applicable National Collective Labour Agreement and varying according to the worker’s classification and seniority) or pay them the related indemnity in lieu, in cases of dismissal, except for dismissal for just cause. The worker must receive the indemnity in lieu of notice for resignation for just cause, i.e. due to a serious breach by the employer, such as not to allow the continuation, even temporary, of the relationship (i.e. failure to pay or delay in paying wages). The indemnity in lieu of notice is due in case of worker’s death, to their spouse, children and, relatives within the third degree and relatives-in-law within the second degree if they were living as their dependants.
The resignation must be formalised electronically, under penalty of ineffectiveness, using the appropriate forms made available by the Ministry of Labour and sent to the employer and the relevant Labour Inspectorate – ITL. This procedure does not apply in the following cases (i) resignation during the probationary period; (ii) domestic work; (iii) resignation made by working parents (during the period of pregnancy or the first three years of the child’s life; in this case, there is a validation procedure before the Labour Inspectorate – ITL); (iv) maritime work.
A worker who has given their resignation may revoke it within seven days of the date of transmission of the relevant form. In this case, the employment relationship continues as usual.
The maximum time limit for the duration of a non-competition agreement is three years (five for executives), starting from the first day after the employment termination. Any longer duration agreed does not result in the nullity of the agreement but the automatic application of the legal term of three years (five for executives).
Stipulating an individual agreement between the employer and worker is a requirement for smart working. The agreement may be fixed-term or open-ended and is used to regulate work outside the company’s premises. Due to the COVID-19 health emergency, employers can apply smart working under applicable regulations without individual agreements. Employers can electronically notify the workers’ names and smart working termination date to the Ministry of Labour without filing the agreements.
Smart working places a higher value on the result rather than the time, place, and procedures and inevitably entails reinterpretation of certain employers’ prerogatives. These include the employer’s control and disciplinary power. the employer may exercise the power of control over the service provided by the worker outside the company premises under the limits imposed by Art. 4 of Law 300/70. The employer may exercise its disciplinary power (with the consequent application of sanctions) on conduct related to work performed outside company premises, identified in the agreement.
Under Law no. 61 converting Decree Law 30/2021, the right to disconnection is the right of workers to disconnect from technological devices and computer platforms, under any agreements signed by the parties and without prejudice to any agreed standby duty periods. This right is necessary to protect workers’ rest time and health.
The worker who is not allowed to exercise the right to disconnect, is exposed to the techno-stress risk, i.e. the syndrome that affects the individual who has to manage complex forms of knowledge and the flow of information provided by new technologies. Techno-stress was recognised in 2007 as an occupational disease following a Turin Public Prosecutor’s Office ruling. It is among the emerging occupational health and safety risks because of the digital transformation, as a specific type of work-related stress.
If there is an open-ended contract, the parties may terminate by giving at least 30 days’ notice. The notice period given by the employer to disabled workers must be equal to or greater than 90 days, to allow them an adequate reorganisation of their work in relation to their life and care needs. If there is a fixed-term contract, termination is allowed once the term has expired. It may be terminated before expiry or without notice only if there is a justified reason. Following contract termination, work will be carried out under ordinary methods.
