As established by the Budget Law 2018 (Law No. 205/17), effective 1st July, employers and private clients will have to pay to their workers wages/remunerations and any advance through traceable means. It will no longer be possible to pay by cash and this independently of the type of work relationship established. The law is clearly aimed at preventing money laundering (predicate offence of Legislative Decree 231) as well as to discourage any worker’s abuse. To this end, the Budget Law specifies that the signature applied by the worker on the pay slip no longer represents proof of payment of the remuneration. Therefore, effective from 1st July, the payment methods allowed will be only those established by the Budget Law, under penalty of administrative financial fines ranging from a minimum of EUR 1,000 to a maximum of EUR 5,000. And this links to the recent judgement of the Court of Cassation (judgement No. 25979/18) which states that in the case employees are forced to accept pay slips showing amounts lower than what it is contractually agreed, both the entrepreneur personally and the company are liable pursuant to Legislative Decree 231/01. Therefore, it would be appropriate to implement specific procedures to be included in Model 231 to trace the flow of the wages/remunerations paid.

From 1st July 2018, employers and principals are obliged to pay remuneration, compensation and any related advance payment, through traceable means of payment, i.e. bank transfer with IBAN code indicated by the worker, electronic payment instruments, payment in cash at banks or post offices where the employer/principal has opened a treasury account with a mandate to pay and issue a check to be delivered to the person concerned or to a delegate.
This is a novelty introduced by Law No. 205/2017 (so-called Budget Law 2018), in order to avoid both any possible “recycling/money laundering activity” and any possible abuse against workers.
In fact, the signature affixed by the worker on the paycheck no longer constitutes proof of the payment of the due remuneration/compensation.
Employers and principals who contravene the prohibition of payment in cash incur administrative pecuniary sanctions from a minimum of 1,000 to a maximum of 5,000 Euros.
With this regard, the National Labor Inspectorate – with its note No. 4538 of 22 May 2018 – clarified that the violation is accomplished both when no traceable means of payment are used and when these are used in an elusive manner.

With its judgment No. 13266 of 28 May 2018, the Court of Cassation has declared the lawfulness of a disciplinary dismissal served on an employee for having used the company computer during working time for non-working purposes. In the case at issue, the employer had commenced a retrospective investigation – following the reporting of the technical director, who had caught the employee using the computer for leisure activities -, from which it emerged that the employee often played “with the company computer” (Free Cell game). The employee challenged the served dismissal in court, by stating that the employee had carried out controls using a universal password that requested prior trade union agreement, failing which, the Labour Inspectorate’s authorisation (article 4 of Law No. 300/70). By upholding the conclusions of the Court of Appeal having territorial jurisdiction, the judges of the Court of Cassation have stated that the application of the procedural guarantees under article 4 of the Workers’ Statute is admitted in the event that the remote controls are aimed at the precise compliance with the employment and not also when they (as in the case at issue) are aimed at ascertaining the carrying out of unlawful behaviours of employees harming the company’s assets and image. In this respect, the Court of Cassation has laid stress on the fact that the application of such procedural guarantees derives from a balancing, which is not always easy to carry out, between the needs for the protection of the company’s interests and assets, related to the freedom of economic initiative, and the protection that cannot be renounced of the employee’s dignity and confidentiality, with a mitigation that cannot disregard the circumstances of the specific case. And, within this scope, as also stated by the European Court of Human Rights, the fair balance between the opposing interests must be made in compliance with the principles of reasonableness, proportionality and of the protection of the employee’s right to the respect of private life, through the employer’s prior disclosure of the possible control of his/her communications, also through the Internet. In short, the case in which the employer has carried out checks aimed at ascertaining unlawful behaviours harming assets unrelated to the employment falls beyond the scope of application of the Workers’ Statute rule, moreover, in case of controls carried out ex post. The above since said controls are carried out after the implementation of the behaviour charged to the employee, such as to disregard the pure and mere supervision over the performance of his/her employment.

With its judgment No. 14527 of 6 June 2018, the Court of Cassation has quashed the decision of the Court of Appeal having territorial jurisdiction which, by reversing the decision of the first instance judge, had declared the unlawfulness of the dismissal for cause served on five employees who had staged the suicide and the funeral of the Managing Director of the employer, in addition to having charged the latter Managing Director with the suicide of other employees. In particular, in the Court of Appeal’s opinion there was no cause for dismissal whatsoever, since the employees had not caused any serious moral or material damage whatsoever to the employer with their own behaviour, much less going beyond the limits of substantial and formal moderation in exercising the lawful right of criticism. Instead, the Court of Cassation has laid stress on the fact that, in the case at issue, the employees’ behaviour had gone beyond the limit of formal moderation, thus infringing the so-called ethical minimum, namely, those duties safeguarding ordinary, democratic civil life in common. Furthermore, the Court of Cassation has stressed that the aforesaid employees, with their behaviour, even if within the lawful harshness of constitutionally protected trade union dialectics, had caused damage to the honour, to the reputation and to the dignity of the Managing Director, by actually finally harming the fiduciary bond underlying the relevant employment. Well then, the Court of Cassation has laid stress on a clear lack of balance between the two conflicting interests at stake: on one side, that of the individual having been criticised in the protection of the human being and, on the other side, that opposed of the author of the criticism (even as a satire) in the free expression of thought.

With its order No. 14242/2018, the Court of Cassation was requested to rule on the existence of non-patrimonial damage in case of unlawful data processing. In particular, the dispute under the close examination of Court of Cassation concerned the order to transfer a Customs Agency employee after commencement of an investigation by the Public Prosecutor’s Office concerning such employee.  The Order included in its own grounds the legal disputes in which the employee was involved and was issued by the Administration by using an ordinary protocol, fit for making the information on the employee’s litigation involvement available to all the Agency’s employees. Upon the outcome of the legal proceedings, the Court held that non-patrimonial damage had automatically arisen caused by the employer that processes the employee’s personal data, in breach of the data protection rules, unless the employer itself has adopted all appropriate measures to avoid it, or is capable of proving the respective absence or, at least, the substantial irrelevance.