With its judgement No. 6792 of 21 March 2018, the Court of Cassation dealt with the completeness of the notice of commencement of the collective dismissal procedure under article 4 of Law No. 223/1991.  In particular the Court, in compliance with the stance of the judges ruling on the merits of the case, stressed that said notice amounts to fundamental compliance for the profitable participation of the trade unions in the co-management of the crisis and for the transparency of the employer’s decision-making process.  The foregoing entails that the employee may lawfully assert the incompleteness of the notice as a flaw of the dismissal notified thereto and that the subsequent reaching of a trade union agreement will not cure in itself the lack of information. In the Court’s opinion, the duties of information must accompany the beginning of the procedure by communicating the entire reasons leading to the surplus situation, as well as the number, the position within the company and the professional profiles of the staff deemed to be in excess. It will only be like this, according to the Court, that it may be possible to check the connection between the company’s needs and the identification of the staff to be dismissed. And, in the case at issue, the real reasons for the reorganisation were to be found not only in the vague drop in turnover, as shown in the notice, but also in the merger project resolved upon. In this respect, even if it is true that, pursuant to section 2112 of the Civil Code, the employer transferor is however entitled to notify the dismissals deemed necessary, this does not exclude the obligation, after having taken the decision to reduce the staff, to fulfil the communication obligations by acting in a transparent way, such as to allow the trade unions to fulfil a guarantee purpose as requested by law.

With its judgement No. 7581 of 27 March 2018, the Court of Cassation has once again dealt with the delicate subject of the so-called right to have access to the records within a disciplinary procedure. In the case at issue, the judges ruling on the merits of the case held the dismissal notified to an employee to be unlawful. The employee had attended hearings for legal traineeship purposes, on days on which the employee proved to be absent for illness or present at work. In order to ground his own complaint, the employee claimed the employer’s refusal to make the documentation grounding the charge available, which was necessary in order to be able to correctly exercise the respective right of defence, since the facts dated back to the past and concerned occasional behaviours such as to prevent him from remembering the specific episodes. In upholding the ruling on the merits of the case, the Court stressed that, even if article 7 of Law No. 300/1970 did not weigh an obligation upon the employer to make the documentation available to the employee, against whom a disciplinary formal notice had been brought and on which the latter is based, the employer “must offer the consultation of the company documents to the person charged, where the examination of any such documents is necessary for the purpose of allowing the opposite party to have an appropriate defence, based on the principles of fairness and good faith in the performance of the contract”. The stance put forward fully complies with the principle pursuant to which the employee’s right of defence must not be limited within the scope of a disciplinary procedure, subject to the unlawfulness of the notified dismissal, if any.

Since last 9 April, the employees of the telecommunications sector have also been the recipients of welfare measures. Indeed, through a specific trade union memorandum of agreement, the signatories of the National Collective Bargaining Agreement have implemented the provisions under the Plan Agreement for the Renewal of the aforesaid collective bargaining agreement of 23 November 2017. In particular, it is foreseen that, effective as from 1 July 2018 and until the following 31 December, the companies within the sector must implement specific welfare measures in terms of goods and services, due up to an amount of Euro 120. Such measures will be acknowledged to the employees, who are not under a probation period, hired as at 1 July with indefinite and fixed term employment agreements, having accrued at least 3 months of seniority in 2018. Any employee under unpaid or non-indemnified leave within the period running from 1 July 2018 until 31 December 2018 will be excluded. The agreement foresees that the new welfare measures will be added to any possible offer of goods and services already foreseen within the company either individually or collectively. As regards the basket of goods and services falling within the welfare, it is foreseen that the companies, together with the company’s trade unions, must identify the relevant types in view of improving the quality of the personal and family life of employees belonging to the company’s staff, consistently with their features, favouring those aimed at education, training, recreation and social assistance and healthcare. Without prejudice, in any event, to the possibility that the employees entitled thereto have, to allocate the amount of Euro 120 to funding the so-called Telemaco Fund, that is the sector supplementary pension fund.

Through its circulars No. 6 and No. 7 of 2018, the Ispettorato nazionale del lavoro (namely, the national labour inspectorate or “INL”) has fixed the guidelines on the supply of labour, starting from the content of judgement No. 254/2017 with which the Constitutional Court ruled on the scope of application of article 29 of Legislative Decree No. 276/2003, by also extending it to sub-supply agreements. In particular the INL, with its circular No. 6/2018, has given operational instructions to the investigators, by mentioning that all those situations in which there is a “dissociation” between the employer and the user of the work, including the cases of relations between consortium and consortium companies, are worth being inspected. With its circular No. 7/2018 the INL, instead, has faced the issue of the network agreements, mentioning the formal elements to be checked in case of any inspection, such as: (i) the existence of an agreement; (ii) the filing of the agreement with the Companies’ Register; (iii) reference in the agreement as to any possible co-employment of the employment relationship. The INL has then clarified that any possible omissions pertaining to the salary or to the contributions expose to liability on the side of all co-employers, effective as from the “pooling” of the employees concerned, given the fact that the general principle of joint and several liability under article 29, paragraph 2, of Legislative Decree No. 276/2003 applies to the case at issue.

The National Labour Inspectorate (“INL”), with its circular No. 5/2018, has given operational instructions on the problems concerning the installation and use of audiovisual aids and other control instruments. According to the INL, should any employees be filmed, the latter should take place as a rule accidentally and occasionally, but nothing prevents the direct shot of the employee, provided that there are reasons grounding the control, without introducing any conditions such as the ‘shot angle’ of the video camera or ‘the obscuring of the employee’s face’. Furthermore, according to the INL, it is not fundamental to specify the predetermined locating and the exact number of video cameras to be installed, without prejudice to the fact that the shots must be consistent and strictly connected with the reasons entitling the control and declared in the relevant request. The circular also dwells upon the justifying reason under article 4 of the Workers’ Statute as to the “protection of the company’s assets”, by stressing that the principles of lawfulness and exactness of the pursued aim, as well as of the respective proportionality, fairness and non-incidence, call for gradualness – as stated by the Italian Data Protection Authority – as to the extent and type of monitoring, which makes more invasive controls residual.  Always according to the INL, any remote access to the images ‘in real time’ must only be authorised in exceptional cases duly grounded. Last, but by no means least, the INL dwells upon the biometric recognition installed on the machines in order to prevent unauthorised parties from using it. This is considered a fundamental tool to “… do the job …” and, therefore, its installation may take place regardless, pursuant to paragraph 2 of article 4 of the Workers’ Statute, of both the agreement with the trade unions and of the authorisation administrative procedure foreseen by law.