At a time of great change, we wished to reward the companies that implemented innovative projects in the field of human resources, with the hope of contributing to the dissemination and emulation of best practices. This is how Vittorio De Luca, Managing Partner of De Luca & Partners, explained the spirit of the Excellence & Innovation HR Award in his role as creator and promoter of the initiative that ended with the success of Fiat Chrysler Automobiles among the listed companies and AFV Beltrame Group among the unlisted ones.
The awards were presented at the end of a process that saw the participation of more than thirty candidates, with six companies admitted to the final stage. In addition to the two already mentioned companies, American Express and Rai Way obtained the second place ex aequo, and for the unlisted companies, Farco and Bricoman respectively ranked second and third. Analysing the projects to identify those with a higher capacity to promote cohesion and sustain an individual’s development was the duty of an independent jury composed of experts in the fields of human resources, sustainability and CSR and leading economists. This method was devised to ensure complete independence in judgment. FCA was awarded for Learning City, an interactive learning platform accessible 24/7 by the employees, developed to enhance the individual responsibilities of the employees and reinforce ease of learning also through gamification. “An initiative that sees technology not as a threat to a person’s work, but rather an opportunity to work better and feel involved in the organization,” explains the lawyer. He also pointed out that FCA’s project is “a large scale one, with the possibility to involve up to 50,000 people.” In the AFV Beltrame Group case, instead, the recognition is tied especially to innovation in union relationships. “The company went through a crisis followed by a restructuring. We reached an agreement with the workers’ representatives under which, at the time of the return to a positive Ebitda, the benefits would be shared among all” explained De Luca. “This is what happened and we are certain that the success of this project can be repeated
by other companies.”
Dismissal ordered due to elapsing of the grace period must be ordered without delay. This was the ruling of the Court of Cassation with judgement no. 29402 dated 15 November 2018.
The legal proceedings originated from the legal action brought forth after a dismissal ordered for elapsing of the sick leave grace period established by the collective agreement, which was not ordered immediately after the event, but after four months.
According to the Judge of first instance, the dismissal was lawful, given the uniqueness of the type of dismissal, since it did not have a disciplinary nature. The Court of Appeals of Lecce, however, was of a different opinion, when consulted during the appeal, and it overturned the corporate provision since it accepted the objection of lateness raised by the petitioner. In fact, the local Court pointed out that the employer’s delay led the employee to legitimately believe that the employment relationship would continue, even after a period since the sick leave.
Against the appeal’s ruling, the Company then filed its case to the Court of Cassation, claiming the incorrect application of the law by the judges of the Court of Appeals.
Queried on the matter, the Court of Cassation shared the interpretation of the Court of Appeals, confirming that dismissal due to elapsing of the grace period must be adopted immediately after the event, since a delay, under the perspective of conclusive facts, could cause a legitimate belief of “stabilisation of the employment relationship” even after the grace period, thus making any dismissal unlawful.
In particular, regarding the resolution of the proceedings, the Court of Cassation made reference to ruling no. 194/2010, issued by the same local Court, which stated that the timely notification criterion would apply also in the case of the grace period, a criterion that in any case “would have to be adopted not only strictly related to a chronological consideration, but to the entire context of the circumstances needed to assess the conduct of the company with regard to its will towards the termination”.
The ruling under review is aligned to a consolidated legal viewpoint on legitimacy that declared unlawful in multiple occasions any dismissal ordered after a period of time from the elapsing of the sick leave grace period, pointing out that the passing of considerable time gives rise to the fact that the will of the employer is to dismiss (Court of Cassation Labour Division no. 25535/2018)
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Almost a year on from the entry into force of Law 179/2017 on whistleblowing, the aim of which is to protect employees reporting offences or irregularities of which they became aware in connection with their work, the resolution of the National Anti-Corruption Authority (“ANAC”) no. 1033 of 30 October 2018 was published in the Official Gazette no. 269 dated 19 November 2018. Also issued at the same time was the “Regulation on exercising the power to impose penalties with regard to protecting those reporting offences or irregularities of which they became aware within the context of their employment relationship pursuant to Article 54-bis of Legislative Decree no. 165/2001” (hereinafter, the “Regulation”).
The Regulation becomes effective on the fifteenth day following its publication in the Official Gazette, and applies to penalty proceedings initiated after its entry into force.
Essentially, the Regulation sets forth that ANAC can exercise the power to impose penalties:
– ex officio, if it detects one or more of the breaches set forth in Art. 54-bis, paragraph 6, of Legislative Decree no. 165/2001, as part of the activities carried out in accordance with ANAC’s annual directive on the performance of supervisory functions, or:
– upon receiving a communication from the party concerned or the trade unions most represented within the organisation where such breaches are supposed to have been committed. The communication must be submitted via a specific form available on the relevant IT platform, accessible from the ANAC website, which uses cryptographic systems to guarantee the confidentiality of (i) the submitting party’s identity; (ii) the contents of the report, and (iii) the related documentation.
After receiving the reports, the person in charge of the proceedings (the “Office Manager”) is required to:
– examine them,
– prioritise them pursuant to Art. 5 of the Regulation,
– identify one or more officers to whom to entrust the investigation (pursuant to Art. 8 of the Regulation), who will be responsible for submitting written evidence and statements of defence and for requesting that any witnesses be heard.
Within 90 days of receiving a report, and unless otherwise required by the proceedings, the person in charge shall send the parties concerned a letter informing them of the complaint filed against them and providing them with specific information regarding the charges. Within 30 days of receiving said letter (which term may be extended by a further 30 days for justified reasons), the parties concerned may submit written statements, briefs or documents, as well as gain access to the case documents or request to be heard.
At the end of the investigation, if the conditions for dismissing the case are not met, the “Department in charge of monitoring the reports received by ANAC” shall inform the party concerned that it intends to recommend the application of a fine by the “ANAC Council”. Within 10 days of receiving this communication, the party concerned may submit further statements of defence or request that a hearing be granted in the event of new facts arising in addition to those that emerged during the investigation. The ANAC Council is required to examine the content of the new statements of defence and to assess the findings of any investigation conducted, before confirming or amending the penalties imposed and issuing the final order to be notified to the person responsible for the breach.
In its judgment No. 27656 of 30 October 2018, the Court of Cassation has again addressed the matter of employees who do other work whilst on sick leave.
The Facts
An employee who was involved in an accident in the workplace and was prescribed a rest period of 15 days using medical supports and ice packs, worked for the family business whilst on sick leave, as documented by an inspection conducted on request of the employer. The company therefore commenced a disciplinary procedure, which resulted in the dismissal of the employee for cause.
The employee resorted to the Court for the dismissal to be declared unlawful. The court dismissed the application. The employee filed an appeal and the trial court ruling was overturned.
In the case in issue, the local court had held that the conduct of the worker constituted a breach of an employee’s duty of care, which should have induced the employee to observe the prescribed period of rest following the accident at work.
On the other hand, the Court of Appeal took the view that the conditions for dismissal for cause were lacking, having the medical-legal expert’s report excluded that the work carried out in the days following the accident, albeit against the doctor’s orders, would have exacerbated the patient’s condition. The Court of Appeal thus concluded that the protection set out in paragraph 5 of art. 18 of the Workers’ Statute was applicable to the case examined (termination of the employment contract as of the date of dismissal and ordering the employer to pay an indemnity equivalent to 12 to 24 months of the last total salary, taking into account the length of service, the number of people employed, the size of the company’s economic activity and the conduct and the situation of the parties).
The employer appealed to the Court of Cassation to have the Court of Appeal ruling overturned.
The ruling of the Court of Cassation
The Court of Cassation highlighted that, in Italian legal system, there is no absolute prohibition against an employee doing other work whilst on sick leave, but clarified that such type of conduct might constitute a justified objective reason for dismissal if associated with a breach of the general duties of fairness and good faith and the specific contractual obligations of diligence and loyalty. This would be the case where:
– the work carried out elsewhere by the employee provides, on its own, sufficient grounds to assume that the medical condition underlying the sick leave is inexistent, thus denoting fraudulence or simulation on part of the employee, or
– the work activity itself – assessed in relation to the nature and the characteristics of the employee’s medical condition and taking into account the tasks performed – is such as to compromise or delay, even potentially, the worker’s recovery and return to work, thus constituting a breach of an obligation which legal doctrine places in the category of preparatory and instrumental duties in the proper performance of a contract (see the Court of Cassation rulings No. 14046 of 1 July 2005, No. 21253 of 29 November 2012 and No. 10416 of 27 April 2017).
The Court of Cassation also established that the trial court’s assessment of the impacts of work on the employee’s recovery should focus on how the employee behaves when carrying out an activity that might delay his/her recovery and thus compromise his/her ability to carry out future work activities in a timely manner.
Therefore, according to the Court of Cassation, the trial court had rightly found that:
– in the daily activities carried out by the employee, as documented by the inspection conducted on request of the employer, the employee had used medical supports but had not observed the prescriptions of the medical practitioner;
– such behaviour had made the outcome of the period of convalescence uncertain, thus breaching the preparatory and instrumental duties linked to the proper performance of the contract, as well as the specific contractual obligation of diligence.
The Court of Cassation also held that the application of the indemnification protection set out in paragraph 5 of art. 18 of the Workers’ Statute was correct in the case examined in light the existence of the fact, albeit supported by a psychological element that was not suggestive of a frequency such as to constitute just cause.
By means of judgment No. 25740 of 15 October 2018, the Court of Cassation has established the important principle that commission accrued by a “coordinator” agent, meaning an agent whose commission is based on the commission earned by the sales network he/she coordinates, should not to be taken into account in the calculation of the termination indemnity due under the agreement.
The Facts
A sales agent resorted to the Court for the employer to be ordered to pay an indemnity in the event of termination of the relationship pursuant to art. 1751 of the Italian civil code, in relation to an engagement to promote and place financial products.
The Court dismissed the application and the agent filed an appeal, which confirmed the decision of the trial court.
In that specific case, the local Court highlighted that:
– the agent had failed to demonstrate that, following the termination of the agency agreement, the employer had continued to enjoy significant benefits, and
– the payment of an indemnity pursuant to art. 1751 of the civil code, for the work the agent had carried out as the “team manager” (coordinator of a group of agents), could not be deemed lawful. Indeed, according to the Court of Appeal, this would have constituted a double payment to be borne by the employer (to the individual agent who had concluded the transaction and to the team manager), thus, in contrast with the principle of equity cited by the same art. 1751 of the civil code.
The ruling of the Court of Cassation
In confirming the decision of the trial court, the Court of Cassation observed that the intention of art. 1751 of the civil code was to make the payment of the indemnity subject “not only to an increase in the customer base, or, alternatively, to a significant increase in the volume of business transacted with the employer’s existing customers, but also to the employer’s continued enjoyment of significant benefits from such customer relationships, which, therefore, must continue in existence for a reasonable length of time”.
Indeed, art. 1751 of the civil code provides that “On termination of the relationship, the employer shall pay the agent an indemnity if the following conditions are met: the agent has acquired new customers for the employer or has significantly increased the volume of business transacted with existing customers and the employer still receives significant benefits from the business concluded with such customers; the payment of said indemnity is fair, taking into account the circumstances of the case, specifically the commission which the agent would lose on the business transacted with such customers”.
Consequently, the Court of Cassation took the view that the provision in question is “clear in its intention to reward, by means of the payment of an indemnity, any promotion activity that is directly aimed at customers, both in the more dynamic terms of acquiring new customers and in terms of increasing the volume of business concluded with those already acquired, and to link any such reward to a particular and evident interest of the employer and a significant commitment on part of the agent (thus deserving of an economic reward).
In any event, in full alignment with the ruling of the Court of Appeal, the Court of Cassation highlighted that adding the indemnity set out in art. 1751 of the civil code to the commission received by the agent for having coordinated the team of agents would be in contrast with the principle of equity referenced in the provision in question. This is because the employer would be obliged to make a double payment – to the individual agent who concluded the transaction and to the team manager.
Conclusions
In essence, it is clear from the foregoing ruling that in awarding a termination indemnity pursuant to art. 1751 of the civil code, the commission received for the activity of coordinating a team of agents should not be taken into account, since such commission is paid for business that is acquired not directly and personally by the agent but by the other agents he/she manages.
