Alberto De Luca will be a speaker at the “Reorganisation and dismissals after the judgement of Constitutional Court No. 194/2018” conference organised by Convenia on 5 June in Milan and 12 June in Rome.
LOCATION AND TIMES
Milan – Wednesday 5 June 2019 Rome – Wednesday 12 June 2019 (9.00 – 13.00 / 14.30 – 16.00)
FOCUS
How has the governance of wrongful dismissal changed?
In particular, the speech by Alberto De Luca “The impact of the Constitutional Court judgement on the work process” will specifically address the following issues
– elements to be proved by the employer and the employee – distribution of the burden of proof between employer and employee – first practical applications – possible guidelines for quantifying the risk of litigation – a practical case: complaint and defence brief
By way of order No. 9006 of 1 April 2019, the Court of Cassation has ruled that the minutes of a settlement agreement signed with the involvement of trade unions is actionable by the worker only in the event of vitiated consent or lack of assistance by the trade union representative. The court, on the other hand, is barred from any consideration of the parties’ arrangements concerning their reciprocal concessions.
The facts
The case in question arises from an appeal filed by a sales agent to obtain:
In detail, the agent had argued, on one hand, the lack of assistance from the trade union representative in negotiating and signing the agreement, and on the other hand, that the company had exerted moral violence to force him to sign the agreement.
The competent court rejected the agent’s appeal, maintaining that the settlement agreement was not flawed. The agent therefore lodged an appeal, which was again rejected.
In fact, the territorially competent Court of Appeal highlighted, among other things, that:
The agent therefore lodged an appeal with the Court of Cassation.
Court of Cassation ruling
Citing one of its previous judgements, the Court of Cassation first affirmed that settlements and waivers affecting the rights established in mandatory rules of law or in collective bargaining agreements – and agreed in the minutes of settlement agreements signed with the involvement of trade unions – are not actionable by workers. This is so provided that the assistance given by the trade union representatives (assistance provided by a lawyer is not deemed equivalent) has been effective in terms of putting the worker in the position of knowing which right is being relinquished and to what extent.
The Court of Cassation also took the view that a settlement agreement should state the common will of the parties to amicably settle an ongoing or likely dispute (res dubia), without any imbalance between the “datum” and the “retentum” having relevance. This is so pursuant to art. 1970 of the civil code, whereby “the settlement cannot be terminated on the grounds of losses since the consideration of the reciprocal sacrifices and benefits arising from the agreement is subjective and therefore left to the self-determination of the parties”.
The Court of Cassation also observed that, in the context of the settlement, the creditor’s decision to allow the debtor to defer the payment constituted a partial waiver and, therefore, a “concession” pursuant to art. 1195 of the civil code. This is because, under the civil code, an obligation to pay money, even in the context of an employment relationship, is to be satisfied by way of a single payment, since the creditor has the right to refuse a partial payment pursuant to art. 1181 of the civil code.
According to the Court of Cassation, it was on the basis of these principles that the trial court had rightly rejected the agent’s appeal. In fact, the settlement agreement had identified the reciprocal concessions made by the parties, specifically:
The above on the assumption of the differing positions in terms of the respective rights and obligations.
Having not found evidence of any flaws that would result in the nullity and/or revocability of the settlement agreement, the Court of Cassation rejected the worker’s appeal and thus confirmed the legitimacy of the settlement Agreement.
The Court of Cassation, with judgement No. 7642/2019, has once again deliberated on the issue of selection criteria in collective redundancy procedures, as set out in Law 233/1991.
The facts
The Court of first instance rejected a statement of opposition filed by a company pursuant to art. 1, paragraph 51, of Law 92/2012 against the decisions issued at the end of the summary case hearing to overturn the dismissal of two workers in the context of a redundancy process pursuant to Law 223/1991.
The company had challenged the first instance judgement before the Court of Appeal, which, in granting the appeal, dismissed all claims of the workers.
The Court of Appeal held that the company, contrary to what the applicants had claimed, had not assigned a different weighting to the three selection criteria set out in art. 5 of Law 223/1991, observing that “their concurrent existence does not indicate parity but merely their simultaneous presence in the assessment process”.
In detail, in the context of the technical, production and organisational needs criteria, the company had identified four sub-criterions, specifically: (i) attendance; (ii) positions established to be redundant; (iii) versatility; (iv) employed in discontinued operations. This was because the need to reduce staff numbers was linked to industrial restructuring programmes that involved discontinuing a number of operations in the production area.
On this point, the Court of Appeal:
Furthermore, the Court of Appeal held that two factors could not be underestimated, that the trade unions involved throughout the entire procedure had not raised any objection to the selection criteria used and that the applicants had not “provided a simulation of a ‘prova di resistenza’” (comparing the scores of all employees made redundant against those of all employees not made redundant).
Two employees challenged the decision of the Court of Appeal before the Court of Cassation. The two petitions were rejected by the Court of Cassation.
Court of Cassation ruling
In rejecting the two petitions, the Court of Cassation first highlighted that an application to overturn a collective redundancy for violation of the selection criteria set out in art. 5 of Law 223/1991 could not be brought randomly by each of the workers made redundant. In fact, the violation could only be challenged by those employees made redundant who had effectively suffered a detriment as a result of the violation, insofar as the violation was decisive in the redundancy decision (see Court of Cassation ruling No. 24558/2016).
That said, the Court of Cassation observed that an employer could not restrict the selection of the workers to be made redundant “solely to workers of the departments or sectors that were being discontinued or downscaled if such workers met the requirements – having performed their duties in other departments in the past – to replace co-workers in other departments”. In other words, it would be unlawful to select employees based purely on the fact that they work in a certain department without considering that they have equivalent professional skills to those of co-workers employed in other departments.
In the specific case, the Court of Cassation deemed that the trial court had dismissed the argument that a different weighting had been given to the three selection criteria set out in art. 5 of Law 223 because all three had been assigned a score.
In detail, the Court of Cassation took the view that the process of breaking down the criterion of technical, production and organisational needs into four sub-criterions, and assigning a “different score” to each, reflected the need to compare all employees who performed equivalent tasks in different production areas.
The Court of Cassation, in order No. 9268 of 3 April 2019, has affirmed that the dismissal for justified objective reasons of a pregnant employee during the notice period is lawful but unenforceable, as occurs in the case of termination during sick leave or absence for injuries.
The facts
In overturning the first instance ruling, the territorially competent Court of Appeal rejected a worker’s application to overturn her dismissal for justified objective reasons pursuant to art. 54 of Legislative Decree 151/2001. In detail, the Court of Appeal held that the dismissal had been formally notified on the date the letter of dismissal was received, regardless of the fact that related effects would arise at the end of the notice period.
In fact, the trial court, having inferred the actual start date of the pregnancy from the medical records submitted and from the expert witness report acquired in the first instance proceeding, found that the pregnancy started after the date of dismissal.
The worker challenged the decision before the Court of Cassation, objecting, among other things, that the onset of pregnancy during the notice period triggered the applicability of the safeguards set out in Legislative Decree 151/2001. This is so because the employment relationship continues during the notice period, with the associated rights and obligations, unless the worker accepts to terminate the relationship immediately or earlier.
The Court of Cassation confirmed the decision of the Court of Appeal, rejecting the worker’s application.
The ruling of the Court
The Court of Cassation reviewing the case highlighted that, according to established case law, a dismissal is a unilateral act that becomes effective from the moment the employer’s intentions are manifested and made known to the worker. This is so notwithstanding the fact that effects of the dismissal – typically, the termination of the employment relationship – may be deferred to a later date.
Consequently, the assessment of the conditions legitimating the right of termination must be conducted “with reference to the moment the unilateral act was formally notified and not with reference, in the case of dismissal with notice, to the successive end date of the notice period”.
According to the Court of Cassation, this was the principle on which the lower courts had based their decision. In fact, the lower courts had excluded the invalidity of the dismissal pursuant to art. 54 of Legislative Decree 151/2019 on the grounds that the dismissal had been communicated and formally notified to the worker when she was not pregnant.
For the Court of Cassation, the Court of Appeal had also rightly made reference to art. 54, paragraph 5, of Legislative Decree 151/2001, which considers null and void a notice of dismissal given “from the start of the pregnancy to the end of the maternity leave and until the child is one year old” and not when the related effects arise.
Therefore, a pregnancy arising during the notice period does not affect the validity of the dismissal notified to the worker at an earlier date. The Supreme Court did highlight that a pregnancy is an event that may satisfy the requirements, pursuant to art. 2110 of the civil code, to suspend the notice period.
However, in the case at hand, the worker’s claim was founded solely on the invalidity of the dismissal and not also on unenforceability ensuing from the suspension of the notice period, with the case thus rejected.
Law 3/2019, which contains “Measures to combat offences against the public administration and concerning limitation periods for offences and the transparency of political parties and movements” (“Anti-corruption Decree”) has amended the list of predicate offences set out in art. 25 of Legislative Decree 231/2001, adding the offence of trading in influence pursuant to art. 346-bis of the criminal code. The latter provision punishes anyone who, by exploiting existing relationships with a public official or a person in charge of a public service, obtains or requests a promise to obtain money or another undue advantage for themselves or a third party. This may either be the price for their unlawful mediation or to remunerate a public official or person in charge of a public service for doing something that constitutes an abuse of his/her duties and/or powers. Cases of the offence include where the recipients are members of the European Commission, the European Parliament, the Court of Justice of the EU and the European Court of Auditors. Should the offence in question be committed, the entity will be subject to a fine of a minimum of EUR 51,646, up to a maximum of EUR 309,874.
