The Court of Cassation with ruling No. 15523/2018 had the opportunity to clarify, once again, a few important cases concerning a dismissal ordered upon conclusion of disciplinary proceedings pursuant to art. 7 of the Law No. 300/1970. The judges of the Court of Cassation, in fact, returned to explore the heavy and controversial matter of linking the disputed fact with the letter starting the disciplinary proceeding to a different disciplinary assumption. On the matter, the Court reminded how said possibility is not excluded since it would exclusively be related to a different take on the same fact subject matter of the dispute, relating to which the employee had the opportunity to exercise his right of defence. On the contrary, it was also restated how the employer does not have the possibility to bring forth new and/or additional factual circumstances respect to those subject matter of the dispute, since this conduct would irremediably damage the right of the defence of the worker who would not have, in this manner, the possibility to present his own reasons related to said circumstances. In this manner, the Court of Cassation confirms its opinion according to which it is necessary full matching between the disputed facts and the ones at the root of the dismissal tied to the disciplinary proceedings.

The Court of Cassation, with ruling No. 19731 dated 25 July 2018 has recently expressed its opinion on the repêchage obligation. In the case in question, an employee had filed a law suite against the dismissal ordered by the company due to closing down of the department where he worked, stating that the dismissal was unlawful for breach of the repêchage obligation. This since in his opinion (i) the employer company after the dismissal had continued hiring on a regular basis and with repeated staff leasing contracts and (ii) the staff leasing contracts reported reasons that did not match the true tasks then carried out by the leased staff, tasks that the employee had made himself available to carry out. In fact, confirming what the Judges having jurisdiction had ruled, the Court  of Cassation rejected the appeal of the employee and pointed out that the employer, subjected to a long lasting period of difficulties in getting results and financial difficulties, had the right to reduce its staff. And according to the Court of Cassation, it can do so by redistributing to the residual personnel the tasks previously assigned to the dismissed employee or making use, for strictly limited time periods, to external resources hired with fixed term contracts or staff leasing contracts. In addition, according to the Court of Cassation, the use of overtime work by the employer after the employee’s dismissal, also pointed out by the employee in support of his own claim, is explained according to said principle. This since the greater amount spent for the overtime remunerations of employees asked to work overtime are without a doubt lower than the costs associated to maintain a person hired under an open term contract.

The Court of Cassation, with ruling No. 16571/2018 has once again returned  – confirming an already consolidated trend in legal literature and case law concerning lawfulness – on the topic of reclassification of the apprenticeship relationship in an employment relation under an open term contract, if the employer’s obligations to provide training was breached. In particular, the Court has pointed out that in the matter filed for review, the necessary professional training was lacking, that is the professional training provided to the employee in-training required to allow him to become qualified. On the matter, the Court states once again that in an apprenticeship contract the fundamental matter is specifically represented by the obligation of the employer to provide effective professional training with the goal of providing to the trainee a professional qualification. And since this breach, being of no little importance, leads in the opinion of the Court of Cassation to the transformation right from its inception of the apprenticeship contract into an open term contract, with consequent payment to the employee of all the contributions and salary differences. This means that the priority role that the training undertakes respect to the work activity excludes that this specific contractual form be deemed suitable a relationship having as its objective the performance of elementary or routine tasks, not integrated by an effective training both theoretical and in practice, under penalty of reclassifying the relationship into an open term contract since the very beginning.

With two “twin” rulings (No. 19863 and No.  20620, the latter filed on 7 August), the Court of Cassation had the opportunity to express its opinion on the rules governing collective dismissals linked to corporate demergers. In the case in question, a company had performed a partial demerger – by assigning to two newly incorporate companies as many corporate branches – redistributing the overall work force among the three legal entities emerged from said transaction. Such a transaction, in the opinion of the Court of Cassation as well as in the opinion of the judges in charge, represents a fraudulent act when, in the period of the following 120 days, multiple dismissals for justified objective reasons take place. In fact, in the case in question a fraudulent attempt was identified – inter alia, concerning the requirements established in articles 4 and 24 of the Law No. 223/1991, thus in the procedure of informing and consulting the unions to safeguard and ensure the choice of employees in excess according to the law criteria – specifically due to the contractual link between the corporate action and the dismissals ordered. In fact, in the opinion of the Court, the corporate demerger allowed triggering individual dismissals subdivided among the newly formed companies (12 the employees dismissed, 4 for each), where the reduced size did not make it necessary to trigger the collective dismissal procedure of personnel. Therefore, even if the method used was lawful in itself, the result achieved was deemed unlawful. The deciding factor, in the opinion of the Court of Cassation, was the fact that upon a work organization that was essentially unchanged – where workers continued to carry out in the same corporate spaces the same tasks – the new corporate setup was solely formal, thus leading solely to a fragmentation of the work force.

Official Gazette No. 186 dated 11 August 2018 has published the conversion law (Law No. 96) of Law Decree 87 (the so called Dignity Decree), entered into force on 14 July. Major changes have been applied to the fixed term contract. In particular, a fixed term contract can be entered into without reason for 12 months, after which it requires a specific reason. In any case, the total term of a fixed term contract cannot exceed 24 months, or it will be automatically converted into an open term contract. The maximum number of extensions is reduced to 4; if there is a fifth extension, the contract is automatically deemed an open term contract. For renewals a reason must be provided at all times. The exception to the mandatory inclusion of the reason is represented by extensions and renewals for seasonal work. The term to appeal a fixed term contract is extended from 120 to 180 days. In addition, a 0.5% increase in contributions by the employer becomes due at time of every renewal. The new rules apply to fixed term contract signed after 14 July 2018 and the extensions and renewals effective from 1 November 2018. Staff leasing is governed by the same rules of fixed term contract, except in the case of the provisions regarding the total number of fixed term contracts, right to take precedence and the so called stop-and-go. Fixed term staff leasing can be used up to a maximum of 30% of the overall staff hired with open term contracts; this limitation applies also to fixed term direct cooperation contracts. The offence of fraudulent staff leasing has been reintroduced.