With judgement of the Court of Cassation No. 1574 dated January 23 2018, the liability according to article 2049 of the Civil Code regarding accidents in the workplace has been confirmed to fall on the transferee company with consequent reimbursement of damages, given that it is the entity that undertook direction and control of the work and that, de facto, exercises control over its performance. This because the transferee company must meet all the prevention and protection obligations except the obligation to inform and to train the employee on the risks typically connected to the performance of the tasks for which he/she has been transferred, whose responsibility falls on the transferor employer (and the latter may be deemed co-responsible whenever the event is causally linked also to its negligent default, which may be, for example, due to lack of respect of specific regulations or rules of prudence and experience or lack of information regarding work risks).

Read here the original version of this article published on Guida al Lavoro.

On 29 December 2017 the so-called Whistleblowing law has entered into force and it has been published on the Official Gazette No. 179 dated 14 December 2017 after having been approved on 30 November. The law, which comprises only three articles, has the specific goal of introducing protection measures in our legislation, for employees (public and private) who report offenses or violations of which they have become aware during the employment relationship. In order to make this crime fighting mechanism operative, for employees in the private sector the regulation modifies legislative decree 231/01 by changing the magnitude of the provisions in article 6. In particular, organizational models now must include: (i) the enabling of channels for the submittal of reporting, which must mandatorily ensure anonymity of the submitting party, (ii) the fact that any reporting must be founded on specific and consistent elements and (iii) the models must be setup with a built-in penalty system that can, on the one hand, punish those who breach the safety measures of the whistleblower and, on the other hand, punish any whistleblower who submits unfounded reports. In light of the above, it will be necessary to update the organizational models, including in it a monitoring mechanism that can protect the whistleblower against any third party repercussions and capable of preventing the occurrence of offenses.

Alberto De Luca will participate to the convention “Individual and collective dismissals” to discuss in more details the consensual resolution and resignation.

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The Court of Cassation in its Plenary Sitting, with judgement No. 30985/2017 resolved a conflict of case-law regarding the penalty in the case of disciplinary dismissal affected by a late claim of unlawfulness. The controversy from which the judgement of the Plenary Sitting emerged, arose from an appeal filed at the court by an employee in disagreement with the dismissal for just cause ordered as the implementation of disciplinary proceedings initiated approximately 2 years after the employer became aware of the facts charged to him. Case law presented two contrasting interpretations. According to the first interpretation, the late claim did not have substantial value in terms of employer’s right of withdrawal, thus triggering the indemnification protection as per article 18, paragraph 5 of the Workers’ Charter. The second interpretation deems the immediacy of the dismissal order a fundamental element of the employer’s right of withdrawal, with consequent application of the reintegration protection pursuant to article 18, paragraph 4, of the Workers’ Charter. The Plenary Sitting of the Court chose to adhere – at the end of lengthy proceedings – to the first interpretation, stating the following law principle: “The judgement concerning disciplinary dismissal following the occurrence of a significant and unjustified delay in issuing the claim related to the charge leading to the dismissal and falling “ratione temporis” under the provisions of article 18 of the law No. 300 dated 1970, as amended by paragraph 42 of article 1 of the law No. 92 dated 28.6.2012, gives rise to the application of the indemnification penalty as established in the fifth paragraph of article 18 of the law No. 300/1970”. This means that, upon the occurrence of unlawful dismissal due to a late claim, full indemnification protection shall apply, which means a reimbursement in favour of the interested employee, without prejudice to the termination of the employment relationship, in an amount ranging from 12 to 24 monthly pay based on the last total salary paid.

The Court of Cassation, with judgement No. 29753/2017, ruled on the lawfulness of a dismissal issued by e-mail. In particular, the Court, through a literal interpretation of the provision referred to in Law 604/66, wished to clarify that “the requirement of written notice of dismissal must be deemed fulfilled, in the absence of specific procedures, with any method that involves the submittal to the recipient of the written document in its material form“. Dismissal is, in fact, a unilateral act that produces its effects when it becomes known to the recipient. In the specific case, it was proven that the employee received the notification and then that he/she forwarded it to his/her colleagues, informing them that he/she would no longer work at the company and, as a result, proving that he/she had actually received the message. This judgement is part of a series of rulings that recently are more and more often recognizing the validity of notifications submitted without digital signature and outside the Certified Email circuits, thus confirming an order of the Court of Catania dated 27 June 2017 that in a similar case deemed lawful a dismissal ordered via Whatsapp.