The Court of Cassation, with judgement no. 21438 dated 30 August 2018, ruled again on the subject matter of dismissal for cancellation of the job position. More specifically, a worker – among other things – had filed an opposition against the dismissal imposed on him, seeking annulment thereof, as he considered it retaliatory, and consequently, payment of a non-reinstatement allowance, equal to 15 monthly pays of the last comprehensive salary actually received, and the payment of damage in the amount of 14 monthly pays of his last actual comprehensive salary. In reviewing the judgment of the court of first instance, the Court of Appeal found the dismissal unlawful, even though in its opinion it was not discriminatory. This decision was due to the fact that the company had not proven the reasons why the petitioner had been dismissed, while other employees that performed the same duties and had less seniority than him had not been dismissed. Since the Court of Appeal found that the prerequisites for the actual protection regime did not apply, it condemned the employer to pay an allowance in the amount of 6 monthly pays of the last comprehensive salary actually received by the worker. In filing an appeal against this decision, the company argued, among other things, that in the course of the proceedings it had proven that (i) the closing of the division had been necessary due to critical circumstances of the company and (ii) in continuing the business, the company had preferred the use of semi-finished products, thus saving another sector. Therefore, in its opinion, the workers employed in such sector could not been dismissed, since the petitioner had never worked in it and lacked the necessary skills. The Court of Cassation found the above ground inadmissible on the assumption that the court of first instance had established, on the basis of preliminary findings and the submitted documents, that “there had been a mere reduction in the production activities” and that the company “had deemed it proper to privilege certain sectors without suppressing any”. Also, the company complained about the violation and wrongful application of Article 5, Law no. 223/1991, because the dismissal was not due to a reduction of equivalent and replaceable personnel but to the suppression of a sector of activities, whose one and only employee was the appellant. The Court of Cassation also rejected the above complaint. On this point, making reference to previous rulings of its own, the Court of Cassation first noted that the cause for dismissal should be evaluated by the employer, without the court having a say so on the selection of the company’s management criteria, in accordance with Article 41 of the Constitution. The Court of Cassation then reiterated that a dismissal for justified objective reasons is considered lawful if the conditions referred to in Article 3, Law no. 604/1966 are met. This means: a) cancellation of the division/job in which the worker is employed, without necessarily suppressing all duties previously assigned to him/her; b) attribution of the cancellation to the employer’s plans and choices that affect the undertaking’s structure and organization – the adequacy and appropriateness of which cannot be questioned by a court of law, provided they are real and not simulated; and c) impossibility to employ the worker in other duties. The Court of Cassation also remarked that the burden of proving the satisfaction of these pre-requisites rests on the employer, who can fulfil it also by way of presumptions. The worker’s obligation to prove the existence of assignable positions is expressly excluded. Also, according to the Court, if the justified objective reason consists of a generic reduction of homogeneous and replaceable personnel, neither the normal criterion of the job position to cancel nor the criterion of the impossibility to carry out a repêchage are applicable, because the former is no longer necessary and because all job positions are equivalent and all workers are potentially dismissible. Nonetheless, the choice of the worker to dismiss is not at the absolute discretion of the employer, which is however limited by the prohibition to discriminate and by the rules of correctness and good faith, pursuant to Articles 1175 and 1375 of the Italian Civil Code. On the matter, the Court of Cassation remarked that the judges discussed the issue of how to identify in practical terms the criteria that allow deeming said choice compliant with the aforementioned principles, deeming that it is necessary to refer, even while taking into account the diversity of the respective regimes, to the criteria established by Article 5 of Law No. 223/1991 governing collective dismissals, where the trade union agreement fails to indicate alternative criteria for such choice. Consequently, according to the Court of Cassation, in the case at hand, by the same token, the criteria of dependent family members and seniority level can be taken into consideration, given that the technical/productive and organizational needs are irrelevant, in the light of a full replaceability of workers. In other words, according to the Court of Cassation, even if several positions are interchangeable, where the criterion of the impossibility to carry out a repêchage does not apply, the employer should select the worker to dismiss on the basis of correctness and good faith. These principles – the Court went on to say – can be considered fulfilled if the employer, in selecting the workers to dismiss, keeps into account the criteria applied in collective dismissals, that is to say, the presence of dependent family members and seniority.

With its judgement no. 21569 dated 3 September 2018, the Court of Cassation ruled on the consequences of disciplinary dismissal after expiry of the term set out in the Collective Bargaining Agreement. The ruling originated from the appeal brought by a worker against the dismissal enforced after expiry of the terms set out in the National Collective Bargaining Agreement for the Gas and Water Industry, due to the justifications rendered with regard to the conduct in question. More specifically, the court of appeal had granted to the worker only the indemnification safeguard, excluding that the non-observance of the terms set out in the National Collective Bargaining Agreement could imply the annulment of dismissal, thus resulting in the right to be reinstated in the position. Accepting the worker’s appeal, the Court of Cassation quashed the judgment of the court of appeal deeming that the violation of the rule relating to the term for the adoption of a disciplinary measure implies acceptance of the justifications and, consequently, the applicability of the actual protection set out in Article 18 (4), Workers’ Statute, resulting in the reinstatement of the worker concerned. Specifically, the judges of the Court of Cassation remarked that ‹‹on the basis of the provisions set out in Article 21/2 (3) National Collective Bargaining Agreement for the Gas and Water Industry, it does not seem possible to assume any consequences other than the obligation to proceed to the indicated specific activity within the set term and the fictio of the acceptance of the justifications in the event of non-fulfilment of the aforementioned obligation››. Therefore, according to the Court of Cassation, the dismissal ‹‹must be considered not only ineffective for the non-observance of a procedural term but also unlawful for the inexistence of the conduct complained – as the employer had accepted the justifications in excuse of the worker – and therefore for a total lack of an essential element of just cause. The logical/legal reasoning made by the Court of Cassation seems to stir up the debate on the relevance of procedural terms when dealing with sanctions. This is an interpretative doubt that in fact may have particularly different consequences – to be evaluated on the basis of the applicable contractual provision (which may also not provide for the automatic effect of the acceptance of justifications after expiry of the applicable term) – and result in different protection schemes.

With its judgement no. 20761/18, the Court of Cassation, Labour Division, returned to rule on dismissal for exceeding the sickness period, confirming its opinion on the potential formal faults that may affect its validity. The ruling originated from the appeal brought by a worker against his dismissal for exceeding the sickness period, whose lawfulness had already been upheld by the courts of the previous two degrees. One of reasons at the basis of the appeal is that the worker had complained about the false application of the applicable rules, as the employer had failed to notify the employee of the imminent expiry of the sickness period. According to the employee, such failure resulted in the impossibility for him to exercise the right – guaranteed by the national collective bargaining agreement – to request a period of unpaid leave on expiry of such term. The Court of Cassation confirmed the lawfulness of the dismissal, clarifying and reiterating that there is no obligation from the employer’s part to notify the employee of the imminent expiry of the maximum sickness absence days, and that such a burden would not exist extensively, not even on the basis of the principles of correctness and good faith. In fact, the Court noted how such notification “would be used in truth to allow the employee to implement certain actions such as request for paid vacation or leave, essentially by-passing the verification of its unsuitability to carry out his obligations”, the latter being sufficient to exclude such information obligation. The Court of Cassation therefore took this opportunity to reiterate its orientation also in relation to other profiles pertaining to this type of dismissal. In fact, on one hand, the Court of Cassation remarked that Sundays and holidays, not covered by a medical certificate, although included between separate sickness periods, should be included in the calculation of the sickness period, unless proof is given of the actual interruption of the sickness in those days. On the other hand, the Court of Cassation noted that the obligation to communicate the reasons at the time of the dismissal for exceeding the sickness period does not require the indication of each separate leave, as it is sufficient – as happened in the case at hand – to indicate the full duration of the leaves. A dismissal for exceeding the sickness period is not equivalent to a dismissal for cause and, therefore, it is improper to speak of a confutation of leaves in this case. In the opinion of the Court of Cassation, the employer can indicate the total number of absence days occurred over a given period of time, without prejudice to the obligation for the employer, in case of legal proceedings, to submit and substantiate the elements that brought to the employer’s decision.

The Ministry of Labour, with press release no. 19 of 17 September 2018, informed all those concerned that the Council of Ministers approved (specifically, on 13 September 2018) a decree enacting measures concerning some of the most urgent matters for the country, including the reinstatement of the extraordinary wages guarantee fund for discontinuation of business (so-called “Urgencies Decree”). This redundancy arrangement has therefore been reintroduced, together with other social support measures that had been repealed by the Jobs Act’s implementing decrees, effective from 1 January 2016. According to the press release, the allowances will be disbursed based agreements between the Ministry of Labour, the Ministry of Economic Development and the interested Regions. These agreements, which may be signed as from the entry into force of the Urgencies Decree and for the years 2019 and 2020, call for extraordinary supplemental wage payments for undertakings going through a critical period, if these have discontinued or are discontinuing their business activities, and a real possibility exists to concretely transfer the undertaking, or even to complete the reindustrialization of the production site. Alternatively – according to the press release – the Regions concerned may activate specific active work policies.

With its judgment no. 21569 of 3 September 2018, the Court of Cassation ruled on the consequences of disciplinary dismissal after expiry of the term set out in the Collective Bargaining Agreement.

The ruling originated from the appeal brought by a worker against his dismissal enforced after expiry of the term of 10 days set out in the National Collective Bargaining Agreement for the Gas and Water Industry, effective from the justifications rendered with regard to the conduct in question, a violation upheld from a factual standpoint in the course of the proceedings of first instance. More specifically, the Court of Appeal – in agreement with the ruling of the court of first instance – had granted to the worker only the indemnification protection, excluding that the non-observance of the term set out in the National Collective Bargaining Agreement could imply the annulment of dismissal, thus resulting in the right to be reinstated in the position.

Accepting the worker’s appeal – claiming an erroneous and false application of the law in regard to the failure to grant reinstatement for non-observance of the term – the Court of Cassation – with the ruling in question – quashed the judgment of the court of appeal deeming that the violation of the rule relating to the term for the adoption of a disciplinary measure implies acceptance of the justifications and, consequently, the applicability of the actual protection set out in Article 18 (4), Workers’ Statute, resulting in the reinstatement of the worker concerned.

Specifically, the judges of the Court of Cassation remarked that “on the basis of the provisions set out in Article 21/2 (3), National Collective Bargaining Agreement for the Gas and Water Industry, it does not seem possible to assume any consequences other than the obligation to proceed to the indicated specific activity within the set term and the fictio of the acceptance of the justifications in the event of non-fulfilment of the aforementioned obligation.”

Indeed, the literal wording of the collective bargaining agreement provision (a recurring provision in the main collective agreements for the private industries) is quite clear in stating that after expiry of the agreed term, the justifications of the worker must be deemed accepted by the employer. Therefore, the Court of Cassation remarked that the dismissal “must be considered not only ineffective for the non-observance of a procedural term (just like the untimeliness of the complaint subject matter of the judgment of this Court, Plenary Sitting, no. 30985 of 27 December 2017)… but also unlawful for the inexistence of the conduct complained – as the employer had accepted the justifications in excuse of the worker – and therefore for a total lack of an essential element of just cause.”

Click here to continue reading the note to the judgment published in Il Quotidiano del Lavoro of Il Sole 24 Ore.