The National Labour Inspectorate (“INL“), with note 5398/2019provided its opinion regarding a hypothesis of transnational posting of workers, carried out by a company established in an EU country in favour of its own production unit located in Italy.

Case in question

The inspectors objected to a case of non-authentic posting, pursuant to Article 3, paragraph 5, of Legislative Decree 136/2016, against the same employer that assumes the role of host and home organisation.

Although the inspectors found two distinct illegal acts – posting of workers by the company’s head office and their use by the Italian head office of the same company – they attributed them to a single subject, since they could not identify two different employers.

Legislation of reference:

Article 3, paragraph 5, of Legislative Decree 136/2016 provides that “in the event that the posting is not authentic, the posting agent and the subject that has used the services of the posted workers shall be punished with a pecuniary administrative sanction of 50 Euro for each worker employed and for each day of employment“.

The home organisation’s conduct in posting workers is thus punished, as is that concerning the use of the same workers by the host company.

The question has therefore arisen as to whether the only subject – host and home organisation – should be sentenced to the double penalty, in view of the double infringement.

The conclusions of the INL

Before going into the matter, the INL pointed out that the production unit of a given company can be considered as an autonomous secondary office against which to dispute illegal acts and adopt relative sanctions, only if it constitutes a separate centre of responsibility. This is the case when the secondary office/production unit is a mere representative office, with exclusively promotional and advertising functions, for the collection of information, scientific or market research, or if, for example, it carries out a preparatory activity for the opening of an operational branch.

In other words, in the opinion of the INL, the secondary office of a company may be considered as a separate legal entity if it is registered in the commercial register and identified in Italy through its own legal representative.

In this case, again according to the INL, it would seem that there is no other relationship between the home organisation and the host company, since the workers are sent from the main office of the foreign home company to its own production unit in Italy, which is not an autonomous legal representation managed exclusively by a person appointed by the same head office.

In view of the above, in this case, given that the affiliation of the home organisation and the host company belong to the same employment organisation, only one penalty is applicable, to be imposed on the only subject endowed with legal status, i.e. the home organisation.

The Court of Cassation, by Ruling no. 18411 dated 9 July 2019, returned to analysing the delicate issue relating to the breach of the relationship of trust, following the abuse by the worker of the permits provided for by Law no. 104/1992.

The case originates from the dismissal for just cause inflicted upon an employee for having taken two days’ leave under the provision referred to above, to care for a disabled relative, having emerged, however, from the investigations ordered by the employer that, in accordance with the permits in question, the person concerned had not left his home and, therefore, could not have gone to the separate home of his relative to provide care.

The courts on the matter, both at first instance and on appeal, dismissed the employee’s appeal, considering that the burden of proof had been met by the employer, albeit not by direct evidence but by deduction, on the basis of the combined interpretation of the investigation report – confirmed by the witness – and the oral justifications given by the employee.

In appealing to the Court of Cassation against the decision, the worker complained – amongst other reasons – that the principle of the burden of proof of the existence of a just cause for dismissal was incorrect and misapplied, noting, firstly, that the full proof of the conduct challenged by the employer had not been fulfilled, given that the investigation report revealed that the exact house number corresponding to the person cared for was unknown. He also complained that the Territorial Court had not taken into account the fact that a supplementary investigation had been carried out at a later stage after the imposition of the dismissal. The erroneous assessment of the evidentiary findings, which also arose from the lack of full proof of the disputed fact, led, in the applicant’s view, to a source of uncertainty as to the actual gravity of the conduct and, consequently, as to the proportionality of the adopted measure. The courts of law, by declaring the inadmissibility of all the pleas in law in holding that the logical reasoning of the courts on the matter was free of defects, confirmed the validity of the worker’s expulsion measure, in total acceptance of what was laid down in the ruling on the matter.

Specifically, it is specified by the Supreme Court that the local court had addressed, with logically reasonable grounds, the issue of the abuse of permits under Law No. 104/1992, noting that the investigative report produced by the employer, confirmed by witnesses and strident with respect to what was stated by the worker at the disciplinary hearing, was perfectly capable of fully demonstrating the lack of care for which said worker received permits. It seems appropriate, in relation to the matter of the examination in question, to go back over the jurisprudential guidelines which have emerged with regard to the limits within which the employer can legitimately control the workers, also taking advantage of private investigative agencies, in order to ensure the correct use of the permits referred to in Article 33, paragraph 3, of Law No. 104 of 1992.

Please read the full version of the article here.

The Court of Cassation, with judgment 16998 on 25 June 2019, returned to analyse the judgment annulling the resignation in regards the salary arrears accrued in the period between the resignation annulment and the judgment itself.

The case originates from legal proceedings to cancel a resignation brought about by a worker who claimed to have acted in a diminished state of capacity.

In court, the resignation was confirmed on first instance and then eventually annulled by the Palermo Court of Appeal, which, accepting the worker’s request, established the worker’s right to previous wages from the effective date of the legal proceedings.

Appealing to the Court of Cassation against the decision, the employer complained – among other reasons – that the principle of law had been incorrect or misapplied, noting that, since the worker had not provided service following the resignation, which was being challenged, the courts should, by law, have limited payment to just the period following the judgment.

The critical legal point under examination is to establish the moment from which the right to the salary arrears for the worker should begin.

In reviewing the decisions, the Court highlighted two trends. The first one, peaceful, in order to fulfil   payment obligations work must have been carried out, and only under the express provision of law (illness or unjustified dismissal under the regime of effective protection) can payment of the former be acknowledged in the absence of the latter. The second one, the subject of much debate, concerns identifying the moment from which, once a judicial decision to annul the resignation has been obtained, the worker is entitled to salary arrears that have accrued: whether this is from the judicial request (Cass. 14 April 2010 no. 8886; Court of Cassation 13 February 2019, no. 4232) or from the date of the judgement (Cass. 17 October 2014 no. 22063; Court of Cassation 06 September 2018, No. 21701).

With this ruling, the Supreme Court has confirmed the view that the right to remuneration arises from the moment in which the judicial application for annulment of resignations is made – the moment in which the resignation is challenged and the employer’s credentials are challenged in default pursuant to Article 1226 of Italian Civil Code – according to the principle that the duration of the process must not be detrimental to the winning party.

Vittorio De Luca will be the presenter at the next workshop “ESG human capital and the role of HR” organised by ESG Governance LAB and EticaNews.

FOCUS:

How many key men within a company are prepared to take a leap of faith on ESG?

What are the criteria that come into play in selection? What are the incentives? And, finally, how much and why is the corporate culture changing? The workshop will be an occasion to examine the results of the extraordinary investigation IGI 2019 on «ESG & Human Resources (HR)». These themes are also being focussed on by institutional investors that investigate the link between remuneration models and ESG, as well as ESG management knowledge which must be at a suitable level to give credibility to the company’s strategies and objectives of sustainability.

LOCATION & TIMES:

The workshop will be held between 16.00 and 18.00 at De Luca & Partners, Largo A. Toscanini, 1, Milan

The Criminal Division of the Court of Cassation, by judgment 18842/2019, referring to the case law of the Joint Divisions, has again ruled on the subject of administrative liability of entities. Specifically, the Court of Cassation has affirmed that it is the responsibility of the entity – once it has ascertained that certain offences have been committed by top management who have acted in their own interests or to gain advantage – to prove “with full discharge of its liabilities” that it has adopted and effectively implemented, before the offence was committed, a model of organisation, management and control suitable for preventing offences of the type which has occurred. This is because, again according to the Court, the “fault of the organisation” derives from not having fulfilled the obligation to “adopt organisational and managerial precautions necessary for preventing offences appropriate for establishing the liability of the collective subject. These precautions should be highlighted in a document which identifies the risks and appropriate measures to counter them”. In effect, organisation, management and control Models cannot be separated from the precise and exhaustive mapping of risks and identification of suitable monitoring measures to prevent and contain them. These measures must be adequately described in a suitable document, which then becomes obligatory for all those who operate within the organisation of the entity, including those with top management positions.