– Article 4 of the Workers’ Statute before the Jobs Act After more than forty years, the regulations established by article 4 of Law No. 300 dated 20 May 1970 of the Workers’ Statute on the topic of remote controls have been amended by article 23 of Law Decree No. 151 dated 14 September 2015, “Provisions for rationalisation and simplification of procedures and fulfilments to be met by citizens and companies and other provisions on the topic of employment relationship and equal opportunities, implementing the Law No. 183 dated 10 December 2014”, as part of the major reform known as the “Jobs Act”.
The far-sighted lawmaker of 1970, with article 4, wanted to regulate a production scenario where the tools from which it was possible to monitor the work activity were devices “external” to the provision of work, whose installation, however, was necessary to meet specific needs (organisational and production reasons as well as work safety reasons). In order to protect worker’s dignity, therefore, a full prohibition was introduced to install tools that had as their exclusive goal to monitor the work activity, allowing as an exception in particular circumstances, the use of tools and devices to handle specific organisational and productive needs, that is work safety needs, only upon receipt of a specific authorisation by the union representatives or Labour Inspectorate.
However, over the years, application difficulties started to emerge regarding the aforementioned provisions, when the remote controls of the work activity had become possible by querying the information recorded by the devices entrusted to the workers for the performance of their work.
The new technologies went beyond the conceptual distinction, detailed in the previous article 4, between a tool destined to controls and work tool: the current technology tools (computers, smartphones, tablets etc.) represent in the current work organisation system “standard” tools to perform the work, which at the same time allow constant and analytical monitoring over the worker’s activity.
Technological evolution, therefore, made necessary to adapt said regulations to the technological reality of the businesses and introduce a distinction between the two different aspects. On the one hand, the regulation of the conditions for the installation of the equipment from which the control of the activity can take place; on the other hand, the possibility to monitor the tool to obtain the information related to the work performed.
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With its judgement No. 20761 dated 17 August 2018, the Court of Cassation, Labour Division, returned to rule on dismissal for exceeding the sickness absence days, confirming its opinion on potential formal faults that may affect its validity. More specifically– among the reasons for the appeal– the employee claimed the faulty application of the regulations in force since the employer had failed to inform the employee of the approaching expiry date of the maximum sickness absence days and this failure hindered the possibility to exercise the right to request a period of unpaid leave after this term. The Court of Cassation, consistently with its own orientation on the matter, confirmed the lawfulness of the dismissal, clarifying that there is no obligation from the employer’s part to notify the employee of the imminent expiry of the maximum sickness absence days, stating once again that such a burden would not exist extensively, not even on the basis of the principles of correctness and good faith. In fact, the Court noted how such notification “would be used in truth to allow the employee to implement certain initiatives such as request for paid vacation or leave, essentially by-passing the verification of its suitability to carry out said obligation›.
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On November 8 2017, the Chamber of Deputies cast its final vote approving European Law 2017, comprising 30 articles among which there is the introduction, as part of Law Decree 231/01, of article 25-duodecies. In particular, the regulation introduces among the offences detailed in the Law Decree 231 those of Racism and Xenophobia, as per Law 654/75. In fact, the offences under review punish those conducts aimed at spreading propaganda, instigation and incitement founded on “denying, grossly trivializing or condoning the holocaust or crimes of genocide, crimes against humanity and war crimes”. Breach of this regulation may lead to fines up to a maximum of EUR 1,239,200 as well as to disqualification as per art. 9 of the Law Decree No. 231. In light of the above, the organisational models shall include significant guarantees also safeguarding relationships within the company, so as to prevent that in the internal dynamics among employees, discriminatory situations may occur and/or emerge that could give rise to the offences in hand. In this context, the employer shall, therefore, update the organisational model ensuring the adoption of protocols and/or measures that are specific and adequate to prevent these offences from happening within the work environment.
In Judgment no. 98 of 7 February 2018, the Court of Frosinone rejected the appeal filed by a worker, who had resigned, against his former employer. More specifically, the worker argued that the withdrawal of his employer from a supplementary agreement of 1988 establishing a 14th-month pay, unilaterally effected in 2014, was illegitimate due to violation of the principle of the inviolability of remuneration pursuant to Article 36, Italian Constitution, and Article 2103, Italian Civil Code. The worker maintained in essence that the 14th pay originates in the contract between the parties established at the time of hiring. The company properly filed an appearance before the court, arguing that its own actions were legitimate and requesting, as an effect thereof, rejection of the appeal with release from any demand laid down therein. The Court of first degree, accepting in full the arguments of the company, remarked that a collective agreement, without providing for an effective term (as in the case at hand) cannot bind the contracting parties indefinitely. This is so because it would stultify the cause and social function of collective bargaining, whose regulatory norms – which have always been based on not excessively long time limits – must relate to a constantly evolving socioeconomic context. Therefore – according to the Court – collective bargaining must be subject to the application of the rule – generally applied to private agreements – according to which a unilateral withdrawing constitutes an ordinary cause of termination of any contract with an indefinite duration. Not only that; the Court has stressed that in the case at hand it has never been agreed with the appellant on a personal level that the remuneration was to include a 14th monthly pay, because this had been recognized exclusively on the basis of a second-level agreement. Moreover, the Court pointed out that the appellant in claiming a violation of Article 36, Italian Constitution, on the basis only of the non-payment of the 14th monthly pay, failed to prove that the constitutionally guaranteed minimum pay had been violated, which, in its opinion, is however to be excluded based on the paychecks produced for the purpose of the proceedings.
In Judgment no. 1377 lodged on 19 January 2018, the Court of Cassation has stated – in regard to an employment contract stipulated before the entry into force of Legislative Decree no. 23/2015 (so-called Jobs Act) – that a dismissal for just cause imposed on a worker who systematically used the company car, assigned to him only for reasons of his office, to travel from home to work and to go to lunch, is disproportionate. The Supreme Court relies on the assumption that in order to allow dismissal for just cause, a worker must have irremediably violated the fiduciary relationship that binds him to the employer, engaging in a conduct that is motivated by an abusive intent, in stark contrast to corporate rules. An essential element of this – according to the Court – is the proportionality of the behaviour at hand and the punishment imposed on the worker. Now, in the case at hand, in the court’s opinion, the conduct of the worker, even if unlawful, is certainly to be considered less serious, given that the use of a company car did not produce any negative consequences for the employer company, nor has it violated the company rules and the “values of the workers’ community”. In considering the dismissal out of proportion, the Court, therefore, concluded that the worker must be reinstated in his original job.
In Judgment no. 1909 lodged on 25 January 2018, the Court of Cassation has ruled on the subject of disciplinary dismissal, stressing the need for the preliminary notification of the relapse having a constitutive nature. In the case at hand, a female worker had been dismissed for just cause because she had missed work one day without providing adequate justification. In the previous month, the employee had received a disciplinary letter in which she was reprimanded for having been unjustifiably absent from work for thirteen days. However, such occurrence had not been mentioned in the last letter of reprimand at the basis of the withdrawal. The Court of Cassation, in the light of its own customary rulings, maintained that “the preliminary notification of a worker’s violation must necessarily also concern – under penalty of invalidity of the punishment or disciplinary dismissal – the relapse and the previous disciplinary measures that constitute it, only where the relapse is a constitutive element of the violation in question and not just a mere criterion, as a negative precedent of the conduct, for the determination of a proportionate punishment to be imposed in relation to the disciplinary violation committed.” The Supreme Court also specified that “in order to determine the relapse’s constitutive nature, reference must be made to the applicable collective agreements”. As a consequence, the Court concluded that the dismissal at hand is illegitimate because it is based on reprimands that were not expressly cross-referenced in the letter at the basis of the withdrawal. Therefore, before notifying a violation, it is always necessary to verify if precedents exist, as these must necessarily be cross-referenced, under penalty of invalidity of the disciplinary measure.
