In declaring illegitimate the expulsion measure ordered to some workers, as part of a procedure of collective dismissal, the Court of Appeals of Turin, with judgement 316/2019, has declared that the employment relationships are terminated and sentenced the employer company to pay compensation pursuant to art. 3, paragraph 1, of Legislative Decree no. 23/2015. The Court used the criteria set out in Article 8 of Law No 604/1966 to determine the compensation indemnity, namely the length of service (which remains the first criterion of reference), the number of employees, the size of the economic activity and the conditions of the parties.
Facts of the case
In this specific case, some workers hired in November 2015 – following the takeover by the employer company of the contract under which they had already worked – challenged in court the dismissal ordered at the end of the proceedings pursuant to Law 223/1991, requesting payment of the indemnity pursuant to Articles. 10, 3 and 7 of Legislative Decree no. 23/2015
The Court, having determined that the collective dismissal had been unlawfully carried out, declared that the relationships had been terminated and, consequently, ordered the company to pay compensation equal to 24 months’ salary.
Since the ruling occurred before the judgement of the Constitutional Court no. 194/2018, this indemnity was calculated automatically on the basis of the entire length of service of the workers, pursuant to art. 7 of Legislative Decree 23/2015, also taking into account the period of work performed in the contracted activity.
The unsuccessful company appealed against the decision of first instance, arguing, on the one hand, that the procedure had been properly carried out and, on the other hand, that Article 7 of the Code had been unlawfully applied to the present case.
The decision of the Court of Appeals
The Court of Appeals, in rejecting the appeal brought by the company, confirmed:
With regard to the latter point, the Court pointed out that according to Article 10 of Legislative Decree 23/2015, “in the event of collective dismissal pursuant to Articles 4 and 24 of Law No. 223 of 23 July 1991, ordered without observing the written form, the sanctioning regime referred to in Article 2 of this decree shall apply. In the event of violation of the procedures referred to in Article 4, paragraph 12, or of the selection criteria referred to in Article 5, paragraph 1, of Law No 223 of 1991, the regime referred to in Article 3, paragraph 1, shall apply“.
It follows that, if the collective dismissal procedure is flawed pursuant to Article 4, paragraph 12, of Law No 223/1991, as in this case, in application of Article 3, paragraph 1, of Legislative Decree 23/2015, the judge “declares the employment relationship terminated at the date of dismissal and orders the employer to pay an indemnity not subject to social security contributions of an amount equal to two months’ salary of the last salary of reference for the calculation of the severance pay for each year of service, in any case not less than four and not more than twenty-four months’ salary“.
Therefore, according to the Court of Appeals, there is no reason to believe that for the calculation of the indemnity it is not necessary to take into account the seniority accrued in the contracted activity, invoked by the Court in application of art. 7 of Legislative Decree no. 23/2015
In particular, the latter provision provides that: “For the purposes of calculating the indemnities and amount referred to in Article 3, paragraph 1), Article 4 and Article 6, the length of service of a worker who becomes an employee of the company taking over the contract is calculated by taking account the entire period during which the worker was employed in the contracted activity”.
Therefore, it is clear that, in the event of a turnover of companies in contracts, the legislature has clearly provided that in the case of application of the regime provided under Art. 3, paragraph 1 (without any possibility of distinguishing between individual and collective dismissal), the calculation of the compensation is not commensurate only with the length of service at the last company that ordered the dismissal, but must instead take into account the entire period during which the worker was employed in the contracted activity.
Moreover, according to the Court of Appeals, the question of the quantification of the indemnity can only be resolved in light of judgement 194/2018 of the Council, which declared constitutionally illegitimate the aforementioned art. 3, paragraph 1, of Legislative Decree no. 23/2015
On the basis of those arguments, and in application of the criteria pursuant to Article 8 of Law No 604/66, the Court of Appeal considers that the quantification made by the Court is appropriate relative to the length of service (which, in any event, remains the first criterion of reference), the number of employees employed, the size of the economic activity and the conditions of the parties.
The Court of Cassation, with judgement 18887 of 15 July 2019, declared illegitimate the dismissal of the worker who refused to work on a day during the week when there was a holiday celebrating a civil event.
Facts of the case
In this specific case, a company, faced with the refusal of one of its employees to work on 1 May, carried out disciplinary proceedings against them, which ended with an injunction to dismiss for just cause.
The worker thus appealed to the judicial authority for it, among other things, to declare the dismissal unlawful and to order the company, his former employer, to reinstate his job and to pay him compensation commensurate with his total remuneration from the moment of withdrawal to the day of actual return.
The Court of Appeals with territorial jurisdiction, overturning the judgement of first instance, converted the employer’s withdrawal into “dismissal for justified subjective reason”, sentencing the company to pay compensation in lieu of notice.
The courts based their decision, inter alia, specifying that: (a) under the provisions of the industry national collective bargaining agreement it was possible for employees to be required to work on public holidays, obviously within the limits established, the exceeding of which, in the present case, was not documented; (b) the classification of insubordination noted in the court of first instance relative to the conduct of the worker was correct but, since it was not carried out in a violent manner and there was no serious harm to the company, the dismissal should have been adopted for justified subjective reasons and with notice.
The employee appealed to the Court of Cassation against the decision of the Court of Appeals.
The decision of the Court of Cassation
The Court of Cassation, in upholding the employee’s appeal, observed that the courts had erred in ordering the obligation to work on 1 May on the basis of a mere interpretation of the industry national collective bargaining agreement, which contains a general reference to holiday work. This is because Law 260/1949 takes precedence.
According to the Court, this law is complete and self-sufficient in recognising the worker’s right to refrain from working on certain festivities celebrating religious and civil events, with the exclusion, therefore, of any analogical additions of mixing it with other disciplines.
Also according to the Court, only persons employed by public and private health institutions are obliged to provide services during events, such as 25 May and 1 May, provided that the needs for service permit rest time. Otherwise, the employer may not unilaterally waive the use of the rest period, even if it depends on production requirements.
Moreover, the worker’s right to abstain from work during midweek holidays celebrating civil events is a subjective right and is replete with a general nature.
This right cannot, therefore, be undermined by the employer, to be able to renounce to the rest period during the midweek holidays only by virtue of an individual agreement or an agreement stipulated with the trade unions to which the worker has given an explicit mandate.
On the basis of these principles, the Court of Cassation concluded that the dismissal of the worker, with all the legal consequences, was unlawful.
The Court of Cassation, with order 15557/2019, ruled that a contract can be considered genuine even if it describes in great detail the tasks that the workers involved will have to perform. This is because, for the purposes of integrating the case of illicit labour brokering, it is not sufficient either to provide an analytical indication of the operating methods of the service performed under the contract, or the need to coordinate with the contractor’s employees.
Facts of the case
The case in question originates from the appeal filed by some workers in order to ascertain the violation of Article 29, paragraph 1, of Legislative Decree. 276/2003 in relation to the contract to which they were assigned and, consequently, the recognition of the right to permanent employment with the contracting company. In support of their application, the employees relied on the existence of managerial power in the hands of the contracting company, given the the latter’s predetermination of the times and methods for performing the tasks. According to the workers, the contracting company had no organisational power of service, no business risk, and consequently no disciplinary or hierarchical power.
The decision of the Court of Cassation
Confirming the decision on the merits which had considered the contract to be genuine, the Court of Cassation specified that the predetermination of the implementing procedures, described in the specifications, responded to the need to adapt the performance to the technical characteristics of the service, without, therefore, affecting the autonomy of the contractor in the management of the employment relationship and in the exercise of disciplinary power.
The Court of Cassation has pointed out that paragraph 1 of Article 29 of Legislative Decree 276/2003 in defining the (genuine) tender contract compared to that of provision of labour, governed by Articles. 20-28 of the same decree, is referring to the two main elements characterising it under the rules of Article 1655 of the Civil Code. Specifically, the contractor remains in charge of the exercise of managerial and organisational power over the employees used in the contract and the assumption of business risk by the same.
According to the Court of Cassation, therefore, there is no deviation from this typical scheme:
Basically and in accordance with their previous case law precedents, the Judges of Legitimacy have concluded that there is a hypothesis of prohibited intermediation of labour only when it is established that the contracting company carries out a direct intervention device and control over persons employed by the contractor of the service. And the mere coordination necessary for the performance of the contract is not sufficient for this purpose.
With judgement of 14787/2019, the Court of Cassation once again handled the sensitive question of the timeliness of the disciplinary challenge with respect to the charge. In particular, the jurisprudential findings on the matter have been underlined, according to which the principle of the immediacy of the challenge of the charge and that of the timeliness of the employer’s withdrawal must be understood in a relative sense. These principles may be compatible with an interval of time necessary for the establishment and assessment of the disputed facts, as well as for the assessment of the justifications provided by the worker. Therefore, the disciplinary notice for dismissal is to be considered timely when, although not immediate with respect to the charge, it is communicated following the decision to indict or the outcome of the criminal proceedings involving the worker.
Facts of the case
The ruling stems from the appeal lodged by two employees of a supervisory institution which, after having been suspended as a precautionary measure following the opening of criminal proceedings for the offences of fraud against the same employer company, had been reinstated for economic reasons and then fired on the spot.
In this case, since the disciplinary challenge had been postponed to a time after the immediacy of the facts, i.e. the outcome of the investigations resulting from the criminal proceedings, the workers challenged the dismissal ordered against them for violation of Article 7 of Law No. 300 of 1970. Specifically, they complained about the failure to open the actual disciplinary procedure immediately after the order for precautionary suspension, assuming, therefore, that they had suffered a violation of their rights of defence. This is because they were given notice of disciplinary dismissal on the basis of facts which had not previously been challenged against them.
The decision of the Court of Cassation
The Court of Cassation, partly upholding the rulings of the judges on the merits, found the employer’s decision to postpone the start of the dispute until the outcome of the criminal investigation to be compatible with the principle of timeliness of the dispute. The Court thus found it understandable that there was a time lag between the date on which the investigative measures were handed over to the employer and the notification of the disciplinary complaint.
The ruling in question is thus in line with the interpretation already consolidated on the subject, confirming that, in the case of precautionary suspension of a worker subject to criminal proceedings, the disciplinary challenge can certainly be deferred until the outcome of the investigations of the criminal proceedings.
The rationale behind this decision lies in the need to provide the employer with certain elements that allow them to make a considered assessment of the facts to be disputed against the employee, also from a point of view of their interest.
The Court of Cassation also took the opportunity to renew itself with regard to the just cause of dismissal. The notion of just cause, in fact, has a “flexible” and “indeterminate” content that requires it be supplemented by the contribution of the interpreter through valuations and judgements which can be inferred from “standards” in accordance with the values of the system existing in the company.
So, the Court of Cassation has censored the appeal ruling in this sense since it did not take into account the aforementioned “standards”. In its view, the judgement under appeal did not focus, in particular, on the adoption by the employer of conduct incompatible with the impossibility of a temporary continuation of the employment relationship. According to the Court, this employer attitude is in stark contrast to the continuation of the just cause of the withdrawal expressing a will that is contrary to the employer’s intention to resolve.
Consequently, in the opinion of the Court of Cassation, the reinstatement in service of employees previously suspended, in the presence of criminal investigations for alleged fraud, is incompatible with the subsequent dismissal on the spot carried out against them for the same facts.
Law 58/2019 was published in the Official Journal 152 of 1 July 2019 containing the “Conversion into law, with modifications, of Decree Law no. 34 of 30 April 2019 (Editor’s Note so-called Growth Decree), containing urgent measures for economic growth and the resolution of specific crisis situations”. There are various innovations relating to labour and welfare. First of all, as from 2023, the 32.7% reduction mechanism of premiums and contributions due to INAIL (National Institute for Insurance against Accidents at Work) anticipated for the year 2019-2021 becomes structural. The facilities for workers returning to Italy are also extended for workers returning after residing abroad for certain periods (the so-called return of the brains). Specifically (i) the threshold of non-taxable income is raised; (ii) stays abroad are limited to 2 years and (iii) the possibility is also extended to workers who are not highly specialised and independent workers. Furthermore, the requirement of having to register with AIRE from the time of transfer abroad is excluded for those returning starting from 2020. The expansion contract is introduced on an experimental basis for the years 2019 and 2020. This provision concerns companies with more than 1000 employees, including the stipulation of the relevant agreement at the Ministry of Labour with the intervention of the social parties. In particular, (i) the CIGS is envisaged for a maximum of 18 months for reductions in working hours of up to 30% and (ii) the possibility of early departure for redundant employees who only have a maximum of 5 years to reach the pension requirement. It provides relief from social security contributions for the permanent employment of young people who have graduated with a mark of 110 cum laude before the age of 30 years or PhDs under 34 years, for a maximum of 12 months and up to a maximum of 8000 euros per year. Last but not least, the allocation of the necessary resources to encourage the recruitment of permanent staff under 35 years of age or unemployed for more than 6 months in the southern regions has been reconfirmed, carried out in the period between 1 January and 30 April 2019, i.e. the period left uncovered by the ANAPL implementing decree (so-called South Bonus).
