The Court of Cassation, with judgement No. 17248 dated 2 July 2018, faced the matter of the protection of employees when in the presence of a series of fixed-term contracts. In particular, according to the Court of Cassation, the indemnity ranging from 2.5 to 12 monthly salaries from the last global remuneration as part art. 32, paragraph 5, of the Law 183/2000 (now revoked), to be paid to the employee after the conversion from an open-term contract must necessarily take into account the prejudices, in terms of remuneration and contributions, suffered in the same period ranging between the end of the contract and the judgement of restoration of the relationship. In the opinion of the Court, the indemnity in question, instead, cannot be applicable to periods of actual work during which the worker may not have suffered negative consequences either from a salary standpoint and contribution standpoint. According to the Court of Cassation, with reference to these periods the all-inclusive principle of the indemnity pursuant to art. 32 of the Law 183/2000 does not apply and the employee has the right to their calculation for seniority purposes and accrual of the related seniority thresholds. In other words, said right cannot be affected and included in the lump-sum indemnification of damage not caused by the work.

The Court of Cassation, with judgement No. 17514 dated 4 July 2018, deemed justified the disciplinary dismissal ordered to a bus driver of a private rental company who, during a long period of absence from work for an ongoing injury, was found to be working for a car parking facility. On the same date, on 4 July 2018, the Court of Cassation has issued another order, No. 17424, where instead it ruled as unlawful a dismissal order to a disabled employee who could not work due to a gastroenteritis, who, during a period of absence, performed a self-employed activity offering outdoor painting services. The aforementioned conclusions, apparently contradictory, in truth find their common ground in the principle according to which carrying out a different work activity during leave from work due to illness cannot automatically lead to disciplinary consequences. This because it is necessary to check if such activity is incompatible with illness condition or such to impede or delay healing. Specifically in light of the above, the Court, with judgement No. 17514, deemed that the actions performed by the employee “appeared ictu oculi incompatible with the declaration of illness or however certainly such to delay if not even compromise physical recovery”. On the other hand, with order No. 17424, the Court verified that “the carrying out of the (extra) work activity during illness was not incompatible with the illness hindering the work activity, and it did not impair the normal psycho-physical health recovery”.

The “battle” on the type of employment relationship of the so-called riders in the age of the gig economy continues. A few months after the judgement issued by the Court of Turin ruling that the six riders of Foodora could not be deemed employees of the company, the Court of Milan ruled on 4 July on a similar case, rejecting the appeal of a former rider who claimed an employment relationship with another company in the food distribution sector. The reasons of the judgement have not yet been filed, and thus it will be necessary to wait for them to find out if they are in line with what has already been ruled by the Court of Turin. In said case, the relationship was qualified as a self-employed relationship, since the Foodora riders were not obligated to provide the service and were not under the direction and organisational control of the employer. In fact, in order to exclude a position of employment, the actual methods used to implement that work relationship became relevant, managed through digital platform and a smartphone app. The matter in these past few days has become the topic of wide political and union debate to the point that on 18 July 2018 the first draft related to the financial and regulatory understanding governing riders has been signed. This took place with an understanding signed by Confetra, Fedit, Assologistica, Federspedi, Confartigianato trasporti, Fita – CNA, Filt CGIL, Fit CISL and Uiltrasporti within the logistics National Collective Bargaining Agreement (CCNL).

The Court of Cassation, with judgement dated 25 June 2018 No. 16702, issued a new ruling on the dismissal for justified objective reasons and related penalty consequences. In particular, the Court of Cassation noted that the negative trend of a company represents a factual requirement that the employer must necessarily prove and the judge accept. This is because it is sufficient that the reasons related to the production activity and the organisation of work, among which it is not possible to exclude those aimed at greater management efficiency or to an increase in corporate profitability, lead to an effective downsizing of the organisational set up through the removal of a specifically identified job position. Instead, whenever the dismissal is justified with the need to face unfavourable financial conditions, or significant extraordinary expenses and in court it is verified that said reasons do not actually exist, the dismissal is deemed unjustified due to the confirmation of lack of truthfulness and on the pretence of the reasons brought forth by the employer. In this case, however, said situation would not automatically lead as a penalty consequence to the application of the actual protection of the job position. Essentially, verification of the requirement of “obvious non-existence of the fact supporting the dismissal”, as per paragraph 7 of article 18 of the Workers’ Statute, concerns both the legal prerequisites of the dismissal for justified objective reasons and thus the reasons related to the production activity, the organisation of work and its normal implementation as well as the impossibility to assign the employee to another position. Therefore, the “obvious non-existence” must be referred to a clear, obvious and easily verifiable (from an evidence standpoint) lack of the aforementioned prerequisites.

Art. 1, paragraph 910 of Law No. 205/2017 (the so-called Budget Law 2018) established that, effective from July 1, 2018, employers and private clients must pay to employees their remuneration, as well as any advance, through a bank or post office using one of the following methods of payment: a) wire transfer on the current account identified through the IBAN code specified by the employee; b) electronic payment methods; c) cash payment through the bank or post office where the employer has opened a cash account with payment order; d) check handed out directly to the employee or, in the case of a proven impediment, to a proxy. On this matter, the National Labour Inspectorate (Inl), with memorandum No. 6201 dated 16 July 2018, specified that the aforementioned payment methods concern exclusively the remuneration. Thus, also in the opinion of Inl, their use is not mandatory for money paid for other reasons, such as cash advances for expenses that the employee must bear for the company and in the provision of services (e.g. lodging, meal and travel expense reimbursement).