The 2018 online edition of the “International Comparative Legal Guide to Corporate Immigration”, published by the Global Legal Group in partnership with the American Immigration Lawyers Association is now available. The publication includes the latest updates in the matter of corporate immigration in 30 countries of the world, and it is a helpful guide for every company facing the issues of hiring, posting and transferring staff abroad. The chapter dedicated to Italy was assigned to De Luca & Partners that continued its cooperation with the British publisher specialised in the publication of international legal guides.

The Guide can be browsed for free at this address.

With its judgement No. 273 filed on 21 September 2018, the Brescia Court of Appeal has ruled on a few aspects of the probation period. In the case at hand, a woman worker had filed a petition to the court of first instance seeking annulment of the dismissal enforced for failure to pass the probation period. The judge dealing with the case rejected the allegation of nullity of the probation period due to the undefined nature of the duties assigned, considering that, for the purpose of their identification, the indication in the letter of engagement, mentioning the professional category and the specific duties she would perform, namely, the “Commodity manager” role (corresponding to the professional figure of procurement specialist) was sufficient. Indeed, this was expressly indicated below the professional category and well-known to the worker, as she had previously performed this role. Moreover, regarding the alleged inadequacy of the length of the probation period, which ended before full lapse of the agreed six months, the judge remarked that the employee had worked for 2/3 of the agreed probation period, and that this length of time was certainly not short, as it was enough to allow the employer to assess her suitability to hold the role required, in addition to the job done. The judge also rejected the woman’s complaint regarding an alleged discrimination due to her pregnancy condition, remarking that she had not provided sufficient evidence. Instead – in the opinion of the judge – in the course of the proceedings it had emerged that the effort made by her was below expectations and that she had been too reluctant to collaborate with her colleagues and to share the information related to her activity. The woman therefore filed an appeal. The Court of Appeal, called to rule on the matter, upheld the decision of the judge of first instance and remarked that the reference per relationem to the national collective bargaining agreement and the fact that the employee had already performed some specific duties with her previous employer certainly were sufficient to deem the challenged probation period valid. As a matter of fact, on this point, the Court of Appeal stated that: “the petitioner herself proved to have good knowledge of such latter role (editor’s note: the role assigned) and related duties, given that in her CV prior to hiring, English version, she had defined herself, in regard to the position held with her former employer, as a “commodity manager.” According to the Court of Appeal, another factor able to prove the perfect knowledge of the duties that the petitioner was supposed to perform consisted in the fact that she had indicated on an online portal, after hiring, a detailed list of her duties. As a result, the judgement at hand rejected in full the appeal filed by the worker, having established the non-existence of the grounds for nullity of the probation period alleged by the petitioner.

Analysis of contractual, regulatory and social security aspects in the agency relationship.

The purpose of the conference is to analyse the contractual aspects of the Collective Bargaining Agreement for the Industry, focusing in particular on severance indemnity pays and giving an overview of the legislation and case law relating to this particular type of contract.

Part of the conference will also be dedicated to the social security contributions and the obligations of the principals vis-à-vis Enasarco.

Place and date

This training conference has been organised by Assolombarda Confindustria Milan, Monza e Brianza, Lodi, and will be held on 10 October at the main office of Assolombarda, Falck Hall (lower ground floor) – Via Chiaravalle no. 8, Milan.

Speakers

Lorenzo Baggioli – Assolombarda Trade Unions Area, Head of Trade Unions Relations, Local Unit of Monza e Brianza  

Roberto Musanti – Assolombarda Labour and Social Security Area 

Stefania Raviele – Lawyer – De Luca & Partners Law Firm

The contribution by Lawyer Stefania Raviele will deal with commercial agency contracts, starting with a discussion of the sources governing this matter and focusing on the regulatory provisions, describing, with reference to case histories, the features that differentiate this type of contract from a business procurement contract. This contract will be examined, as well as its requirements and elements that can be regulated and included, such as, for instance, probation periods or the inclusion of terms or, moreover, exclusivity rights and non-compete clauses, focusing in particular on the contract management and modifications. From a practical and case-law standpoint, the subject matter of unilateral modifications, limitations and the ius variandi contractual discipline will be described, with a focus on the applicability to this type of contract of the provisions laid down in the Italian Jobs Act for self-employed professionals. The Lawyer will also deal with the parties’ rights and obligations and the reasons for the termination of commercial agency contracts.

Click here to read more information.

With its recent judgement no. 21965 dated 10 September 2018, the Court of Cassation once again ruled on the well-known controversial issue of the boundaries between the right to criticize and insubordination, upholding the decision of the trial court. The judgement at hand found the dismissal imposed on an employee, who had uttered words deemed libellous by the employer, unlawful. More specifically, the employee – at the time of the events, a trade union representative – had been caught transmitting – via a Facebook chat – lines with a libellous, critical and offensive content regarding the director of his employing company, calling him slave-trader. The Court of Cassation, called to rule on the matter, established that in the case at hand the prerequisites for libel did not exist, because the worker had uttered those words on a private chat, the access to which was allowed only to the members of the trade union to which he belonged. On this point, the Court of Cassation clarified that the digital venue where this action had been committed must be considered a “private digital place of debate and sharing of opinions”: hence, a reserved and safe place which, as such, determines for those who are part of it a set of rights, including the right to privacy and freedom to exchange correspondence. In support of its stance, the Court of Cassation remarked that (i) Article 15 of the Workers’ Statute considers “freedom and the right to correspondence and any other form of communication” inviolable, as secrecy should be intended as the expression of the broadest freedom to communicate with predetermined subjects, and therefore as assumption that subjects other than the selected recipients do not illegitimately get to know the content of a communication and (ii) the protection of secrecy implies, in addition to the choice of the recipients and the sender’s intention to exclude other persons from knowing the message, also the use of a tool that embodies the quality of secrecy or confidentiality of the communication. Moreover, the Court, making reference to one of its previous rulings, reiterated that the right protected under Article 15 of the Italian Constitution “includes correspondence and the other forms of communication, including telephone, electronic, computer-aided communications between those present or those effected by other means provided by the ever-improving technologies.” Therefore, the need to protect the secrecy of communications also includes e-mail messages exchanged by mailing lists reserved to the members of a given group of people, newsgroups or private chat lines, whose access is conditional upon a password given to specific subjects. Lastly, the Court of Cassation specified that legitimizing dismissal for the reasons brought to its attention would be tantamount to legitimizing the control of the employer over the freedom to criticize, as well as, considering the circumstances, a violation of the trade union’s freedom, which in this way would be necessarily and inevitably demeaned. In consideration of all of the above, the Court of Cassation ordered reinstatement of the worker in his former job and payment of damage.

The Court of Cassation – with judgment no. 21621 filed on 4 September 2018, has ruled that a disciplinary dismissal for circumstances established by a private detective is not lawful if such dismissal is based on facts occurred within the context of the performance of the job duties and connected to the latter. In the case at hand, a worker had been responsible for tampering with the attendance sheet, in order to conceal his absence from work. On discovery of the worker’s conduct, by way of a private investigation agency, the company activated against him a disciplinary procedure, which ended with a dismissal for cause. The worker appealed against the measure and the court ruled that the company conduct was lawful. Called upon the issue, the Court of Cassation reversed the outcome of the litigation. Having examined the documentation of the case, the Court of Cassation ruled that any circumstance relating to the correct performance of job duties must be assessed by the employer or persons within the company organization. In any case, this does not preclude the possibility for a detective to be actually hired to establish the existence of conducts legitimising the disciplinary measures. However, according to the Court of Cassation, “the control carried out by security guards or investigation agencies cannot concern under any circumstance the fulfilment or non-fulfilment of the contractual obligation to perform one’s own duties” since the investigation “must be limited to the worker’s breaches that are not related to a mere fulfilment of the obligation.” In other words, the hiring of an investigation agency is justified in the case of wrongdoings and the need to establish their nature, even if there is suspicion or a mere supposition that the wrongdoings are being committed.