The Labour Division of the Supreme Court of Cassation, with ruling no. 31159 published on 3 December 2018, stated that when carrying out different tasks from those established in the probation period, dismissal of the employee due to failure to successfully pass the probation period, whenever unlawful, does not lead to the reintegration but to the more limited remedy of reimbursement of damages calculated on the basis of the damage suffered from the probation period having remained unfulfilled.
The Facts
An employee dismissed by a Company operating in the environmental services field for failing to successfully pass the probation period, brought to court the dismissal order filed against him. Reversing the judgement of first instance, the Court of Appeals having territorial jurisdiction, interpreting the employment agreement to which the probation period was attached, also in light of the collective agreement applicable to the sector, verified that during the probation period the employee had been assigned to different tasks from those agreed, thus deeming the test unfulfilled. Thus, in the opinion of the district Court, the probation agreement had been breached, and consequently deemed effectively “established an open-term employment relationship not subjected to temporary withdrawal” with consequent application of article 18, Law 300/1970 in the version in force at the time. Against said ruling, the Company filed an appeal to the Court of Cassation.
Reference Regulations
The probation period is governed by article 2096 of the Civil Code, according to which, in the second paragraph, it is stated that the employer and the employee are “respectively obliged to agree and to perform the test that represents the probation agreement”. The same article, on the third paragraph specifies that “during the probation period, each party may withdraw from the agreement, without obligation of advance notice or indemnity, without prejudice to that probation period not having been established for the minimum time necessary”, to then end with paragraph 4 stating that “having completed the probation period, the hiring becomes permanent”.
The governing of the matter under review was integrated with article 10 of Law 604/1966 that established the applicability of the limitations for dismissal of employees under probation period whose hiring becomes permanent and, however, after 6 months from the start of the employment relationship.
The ruling of the Court of Cassation
The Supreme Court of Cassation in charge of the case, in explaining its ruling, kept well distinct the possibility of a withdrawal under probation ordered as a consequence of a void probation agreement and, instead, the one in which the withdrawal is ordered as a consequence of a valid probation agreement, but without the effective appointment of the employee to the tasks subject matter of the probation.
In detail, the Court, referring to its previous case law rulings (among which, Cassation ruling no. 8934 dated 2015; Cassation ruling no. 17767 dated 2009; and Cassation ruling no. 15960 dated 2005), has
– first of all, stated once again that “the withdrawal of the employer during the probation period is at its discretion and waives the obligation of proving the reason for it, differently from what happens in the dismissal subject to law no. 604 dated 1966 (among many, Cassation ruling no. 21586 dated 2008)” and
– furthermore that “exercising the power of withdrawal must be consistent with the reason of the probation agreement to be identified in the protection of the common interest of the two parties in the employment relationship, since it is aimed at carrying out a test through which both the employer and the employee may verify the mutual convenience of the agreement, the former verifying the skills of the employee and the latter, in turn, assessing the magnitude of the service requested and the conditions for the implementation of the relationship”.
Thus, according to the Court of Cassation, the probation cannot fail and there cannot be a valid withdrawal “whenever the methods of the test are not adequate to verify the job skills of the employee under probation. This applies in all those withdrawal cases where the period during which the employee is subjected to the test is too short (Cassation ruling no. 2228 dated 1999; Cassation ruling no. 2631 dated 1996) or – for what is specifically applicable in this case – whenever the employee carries out tasks that are different from those for which the probation period had been agreed.”
In these cases, according to the Court having jurisdiction, the deriving consequence is exclusively compensatory, since the employee has the right to be indemnified from the damage suffered due to the probation period having remained unfulfilled.
The case in which the probation agreement was not validly applied, is different. In that case, still according to the Court of Cassation, the unilateral termination of the employment relationship due to failure to successfully complete the test cannot represent just cause or justified reason for dismissal and it is not exonerated from the regulations on limitations applicable to dismissals, thus leading as an effect, to the reintegration.
Conclusions
Given the trend of the judgement under review, in the case of unlawful application of the probation employment agreement, a “conversion” of the relationship occurs from probation period to open-term employment contract, thus meaning that in the case of withdrawal, when the requirements have been met, the applicable regulations on dismissal are those of the ordinary regime for individual dismissals.
However, in the case of withdrawal ordered during the probation period, with the agreement attached to the employment contract being lawful, the “special regime” applies originating from the processing of case law, and different from the ordinary regulations on individual dismissals. In said case, the employee has solely the right to compensation for the damages suffered. This means the continuation of the probation period for the remaining term established or the reimbursement of the damage. Basically, the declaration of unlawfulness of the withdrawal does not mean that the employment relationship must be deemed as been permanently established.
The Labour Division of the Supreme Court of Cassation, with ruling no. 29377 dated 14 November 2018, deemed lawful, within the context of a collective dismissal – because of its objective nature – the criterion of choice represented by meeting the requirements to access the pension.
The Facts
An employee brought his case to court in order to get his dismissal declared unlawful when it was ordered as the result of a collective dismissal initiated by its former employer company. The Court of Appeals having local jurisdiction, during the proceedings, confirmed the ruling of the Judge of first instance.
In particular, the district Court declared non-discriminatory the criterion used for the selection of personnel deemed in excess, represented by reaching the requirements to access the pension, brought forth by the employee.
According to the Court of Appeals, even the procedural breach claimed with reference to the violation of the obligation to specify the methods applied for the selection criterion adopted could not be accepted. This due to (i) the objective nature of the criterion, which excluded the discretionary approach in the choice of the employer and (ii) the unnecessary comparison of the employees identified with those lacking the specified requirements, in the opinion of the Court, the list of names of employees dismissed was sufficient as attached to the notification as per article 4, paragraph 9 of Law 223/1991.
In addition, the judges in charge deemed impossible to accept the claims contesting the existence of the conditions to initiate the proceedings, since the ruling of the court having jurisdiction would have had to focus only on meeting the procedural rules.
The employee filed an appeal at the Court of Cassation against said decision. The employee claimed, first of all, a breach of article 15 of Law 300/1970 regarding the principle of non-discrimination as well as the missing, insufficient and contrasting reason regarding a definitive fact, that is the choice of the employee to be dismissed. According to the employee, from a review of the documentation attached to the procedure and from the official communications submitted, it was not possible to establish in any way the methods used for applying the selection criterion.
The ruling of the Court
Called upon to rule on the issue, the Court of Cassation rejected in full the appeal of the employee.
With reference to the verification of the prerequisites to initiate the procedure, the Court noted that it is by now consolidated in case law the trend according to which Law 223/1991 – that establishes in articles 4 and 5 the accurate, full and regulated procedure of the employer’s provision – introduced a significant innovative element. Said element consists in moving from a jurisdictional oversight, as exercised ex post in the previous regulations, to an oversight of the entrepreneurial initiative being assigned ex ante to the role of the unions. Therefore, according to the Court, the verification of meeting the conditions for the initiation of the procedure was the responsibility of the unions.
Furthermore, the Court specified that the discrimination claim was unfounded regarding the criterion related to obtaining, within the mobility time period, of the requirements to access the pension.
Regarding instead the completeness of the notification imposed by Law 223/1991, the Court of Cassation stated that when said criteria is the only one, it is sufficient to notify the list of dismissed employees and the criterion of choice applied, that is meeting the requirements to access the old age or seniority pension. Therefore, according to the Court of Cassation, the objective nature of the criterion makes fully unnecessary the comparison with the employees lacking said requirement.
Moreover, the Court also specified that among the various employees used as reference, the petitioner was the one with greater employment seniority as well as being the one meeting the requirements to access the pension.
Conclusions
In the end, according to the Court of Cassation, there is no doubt regarding the legitimacy of the criteria of choice adopted.
The Court based its ruling on the consolidated case law trend according to which “the negotiable identification of the criteria of choice of the employees to be dismissed (that translates into a union agreement that can be signed by the majority of employees directly or through their representing unions, without having unanimous voting) meets – as highlighted by ruling no. 268 dated 22 June 1994, of the Constitutional Court – a regulatory function delegated by the law and, therefore, must meet not only the principle of non discrimination, as per art. 15 of Law 300 dated 1970, but also the rationality principle, according to which the criteria agreed upon must have the characteristics of objectivity and generality and be consistent with the purpose of employees’ mobility: meeting these criteria excludes the possibility of claiming discrimination” (see Cassation, Labour Division, Judgement no. 2694 dated 05/02/2018).
And proving the failure to meet the objective criteria falls under the responsibility of the employee while the employer has the responsibility of attaching the selection criteria and prove their full application towards the dismissed employees.
By laws no. 136 of December 17th, 2018 (so called “Fiscal Decree”) and no. 145 of December 30th, 2018 (so called “2019 Budget Law”), several news in the field of labour and social security law have been introduced.
The main changes in the two laws mentioned above are as follows:
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The Fiscal Decree entered into force on December 19th, 2018, while the Budget Law on January 1st, 2019.
Please do not hesitate to contact us for any information.
Following the resolution of the EU Parliament dated 24 October 2017, aimed at adopting a Directive on whistleblowing, the Committee, on 23 April 2018, formulated a text proposal, which was approved by the Committee on Legal Affairs of the European Parliament on 20 November 2018.
Upon approval, the Directive would provide Member States time until 15 May 2021 to adopt it.
Let’s review in details some of the main new developments.
Internal and external reporting
The draft Directive in Chapters II and III regulates “Internal Communications” and “External Communications” respectively.
The provisions concerning “internal” reporting apply exclusively to companies with more than 50 employees, a turnover of more than 10 million or whenever they operate in the financial services sector or are exposed to offenses such as money laundering and terrorism.
Follow-up Procedure
The Directive regulates the “follow-up procedure”, which means the action taken by the recipient of the report – internal or external – in order to assess the existence of the reported facts and, if necessary, to resolve the alleged breach (including actions such as internal investigation, inspections, prosecution, or that for the recovery of funds, and/or, finally, its archiving).
The follow-up and feedback to the aforementioned procedure should take place within a reasonable time, given the need to quickly address the problem that could be the subject-matter of the report, as well as in order to prevent unnecessary disclosure.
This time period should not exceed 3 months, but could be extended to 6 months, if justified by the specific circumstances of the case, and in particular by the nature and complexity of the subject-matter of the report, which could require lengthy investigations.
Material Application Context
Article 1 of the draft Directive establishes that it applies to all breaches (and therefore reports) that may take place in sensitive contexts according to “EU legislation”, such as: (i) public procurement; (ii) financial services, prevention of money laundering and terrorism financing; (iii) product safety; (iv) transport safety; (v) environmental protection; (vi) nuclear safety; (vii) food and feed safety and animal health and welfare; (viii) public health; (ix) consumer protection; (x) private life protection and personal data protection and network and information system security.
Personal Application Context
Article 2 calls for the Directive to be applied to (i) all parties with the qualification of worker pursuant to Article 45 of TFEU, as well as (ii) all parties with the qualification of self-employed workers pursuant to Article 49 of TFEU or, again, (iii) shareholders and members of the governing body of a company, including non-executive members, volunteers and unpaid trainees, as well as, then, (iv) anyone working under the supervision and direction of contractors, subcontractors and suppliers.
In addition, the Directive applies to reporting parties whose employment relationship had not yet started, if the information concerning a breach was acquired during the selection process or other stages of pre-contractual negotiations.
Prohibition of retaliation against reporting persons and protection measures
Article 14 of the Directive requires that all necessary measures must be taken to prohibit any form of retaliation, whether direct or indirect, against reporting persons meeting. For example: (i) dismissal, suspension or equivalent measures; (ii) demotion or withholding of promotion; (iii) transfer of duties, change of location of place of work, reduction in wages, change in working hours; (iv) withholding of training; (v) negative performance assessment or employment reference; (vi) the imposition of disciplinary measures; (vii) discrimination, disadvantage or unfair treatment; (viii) non-conversion of a fixed-term employment agreement into a open-term employment agreement; (ix) blacklisting; and (x) cancellation of a licence or permit.
Article 15 of the Directive, titled “Measures for the protection of reporting persons against retaliation”, establishes that:
– comprehensive and independent information and advice shall be easily accessible to the public, free of charge, on procedures and remedies available on protection against retaliation, and
– reporting persons cannot be held liable for breaching any restrictions on the disclosure of information imposed by contract or by law, nor may they incur liability of any kind in respect of such disclosure.
In judicial proceedings relating to a detriment suffered by the reporting person, it shall be for the person who has taken the retaliatory measure to prove that the detriment was not a consequence of the report but was exclusively based on duly justified grounds.
Finally, reporting persons shall have access to remedial measures against retaliation as appropriate, including interim relief pending the resolution of legal proceedings.
Reference to the GDPR
Lastly, it is to be noted that in various articles (10 and 18) – as well as in the Recitals (58 and 79) – of the draft Directive, express reference is made to the GDPR, from which the concept of “by design” seems to be borrowed, with regard to the design of the reporting channels. This is because they must be implemented in such a way as to guarantee (i) completeness, (ii) integrity and (iii) confidentiality of the information (Art. 7).
On 21 December 2018, the National Association for Labour Agencies (Assolavoro) and the industry unions (Felsa, CISL, Nidil, CIGL, UIL Temp) signed a draft for the renewal of the national collective bargaining agreement for the Staff Leasing Agencies Sector (the “Draft”)
Let’s review some of the main new developments.
Provisions to favour the occupational continuity of employees (art. 1)
Among the most important provisions there are those that address some of the risks deriving from the Circular 7/2018 issued by the Ministry of Labour related to the Dignity Decree.
More specifically, in order to ensure maximum employment continuity for staff leased, all the fixed-term agreements established between the parties (Agency and employee) are calculated only for the purpose of determining employment seniority prior to 1 January 2019 (that is from 1 January 2014 to 31 December 2018), for a maximum of 12 months within a period of 5 years (Temporary Regime).
Also in this context, the Draft adds two provisions to favour employment continuity related to extensions, up to 24 months and after fixed-term agreements between the Agency and the employee.
In particular:
– In the case of staff leasing by the same user, the maximum identified term is established by the collective negotiation applied by the latter. In the absence of this, the maximum extension term is 24 months;
– In the case of staff leasing by different users, the extension cannot exceed, under any circumstance, the maximum term of 48 months.
Within the legal term of 24 months, there cannot be more than 6 extensions. Whenever the collective bargaining agreement of the user were to call for a different term limit, regarding the extension of the agreements, the maximum number of extensions for each contract is brought to 8.
The maximum term does not apply to fixed-term staff leasing contracts with employees hired by the Agency with open-term contracts.
Fixed-term staff leasing with guaranteed paid amount of hours (MOG, art. 4)
The Draft governs and structures the MOG.
Among the various provisions on the matter, it is highlighted that it is possible to enter into fixed-term staff leasing contracts with a term of 1 month, by guaranteeing to the employee a minimum compensation equal to 30% of the standard (full time) employment applied by the user’s company.
Furthermore, the Agency must notify in advance to the OOSS entering into such agreement, the implementation and any extensions/renewals of agreements. In the case of extension of the originally signed MOG, or its second renewal, the OOSS may request, within the following five business days from receipt of the notification, a meeting to finalise an agreement to make it operative. Lacking the meeting request, the principle of consent by silence applies.
In addition, it is possible to enter into fixed-term staff leasing contracts with a term of 3 months, by guaranteeing to the employee a minimum compensation equal to 25% of the standard (full time) employment applied by the user company.
This provision applies to all contracts entered into effective from 1 January 2019.
The performance of service may be requested to the employee based on the organisational needs of the user: the time and/or day of service must be notified to the employee 24 hours in advance prior to the start of the activity.
The employee, within the brackets established and up to the limit of hours set by the contract, must make himself available to be on call: in the case of justified refusal, the obligation for minimum compensation does not apply. Instead, any unjustified refusal is an absence and as such subjected to disciplinary provisions.
At the end of the employment relationship under the MOG, it is necessary to check the average number of hours worked and, if less than the minimum hours established by the National Collective Bargaining Agreement of the user, the employee must be paid the difference as a balance with respect to the lower number of hours worked.
Open-term contracts (art. 5)
The indemnity for availability is increased to 800 euro.
In the case of employees with a part-time staff leasing agreement, the amount to be paid will be recalculated based on the hours worked and, however, will not be less than 400 euro per month at gross of withholdings by law and including severance indemnity.
The employee must respond to the call/summons of the branch within 24 hours after receiving it and if the response is positive must be present at the branch and/or at the selection interview and/or training course offered by the Agency within the times specified and not before 24 hours from making himself available.
Lack of availability for or absence on occasion of the activities offered by the Agency whenever unjustified shall be deemed a contractual breach.
Apprenticeship (art. 13)
Among the various provisions on the matter, there is the hiring of an apprentice by the Agency under a professional career-building apprenticeship contract, carried out according to a training path implemented at the user’s location.
The compensation, categorisation and hours of work of the apprentice are regulated by the National Collective Bargaining Agreement applied by the user company to apprentices of equal level under its direct employment.
The training program is setup by the Agency for the work in cooperation with the user and the employee must be subjected to the opinion of compliance of Temporary Form within 20 days from the start of the program.
During the apprenticeship period, the employee must report to the tutor, appointed by the Agency, and to one appointed by the user company.
The Agency may withdraw from the relationship at the end of the apprenticeship period, notifying its withdrawal with an advance notice of 30 days effective from that term pursuant to article 2118 of the Civil Code. Failing to do that, the relationship continues under the Agency’s employment as a standard open-term employment relationship.
Effectiveness and application methods (art. 23)
The Understanding enters into force effective from 1 January 2019 until 31 December 2021.
The provisions as per article 1 become effective from 21 December 2018 (date of signature of the Understanding) without prejudice to the provisions regarding the temporary regime, any regulatory interventions and/or ministerial interpretations that may establish not to consider, for the purpose of exceeding the term limits, specific periods of the relationships undertaken with the Agency.
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The Understanding, among others, (i) strengthens welfare; (ii) introduces a right focused on professional qualification and re-qualification; (iii) intervenes on the procedure when employment opportunities lack.
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Conclusions
The Draft must now be ratified by the Directors’ Committee of Assolavoro and by the workers’ meetings. Subsequently, the Parties will initiate a review and harmonisation of the contractual text dated 27 February 2014. Everything that is not directly or indirectly amended is deemed in force.
