In the Official Gazette of 17 June 2019, the 55/2019 law was published converting Decree 31/2019 (c.d. Decree “Reopening Construction Sites”), which amended art. 2477 of the Italian Civil Code, already amended by art. 379 of the Corporate Code (Legislative Decree no. 14/2019). In so doing, thresholds for the obligation to appoint statutory auditors and auditors in limited companies have been raised.
Such appointment is mandatory if the limited company:
The obligation to appoint statutory auditors and auditors will no longer apply if, for three consecutive financial years, none of these limits is exceeded.
These thresholds will now apply to 80 thousand companies compared to 140 thousand companies included in previous thresholds.
Companies that have appointed the auditing body on the basis of the previous limits may revoke it for just cause.
The INPS, with circular 63 of 9 May 2019, provided:
Let us look at the details of the circular.
The INPS ceiling and prescriptive system of contributions
As from 1 January 1996, following the introduction of the maximum contribution and base pension pursuant to art. 2, paragraph 18, of Law 335/1995, for workers covered by the contributory pension system, salaries beyond the fixed annual limit (102,543 euros for 2019) are not subject to social security or pension contributions.
However, for the calculation of contributions due, employers can use as reference a taxable salary higher than that referred to in the annual ceiling. In this case, the same employer may request reimbursement of excess contributions from INPS on the basis of rules governing undue payments set out in Article 2033 of the Italian Civil Code.
The circular outlines the period for requesting returns, pursuant to art. 2946 of the Italian Civil Code, is 10 years. If this term is not useful, sums will remain at the Institute even if they do not produce social security effects.
In addition, the INPS states Article 8 of the Presidential Decree does not apply to the excess of the above mentioned contribution 818/1957, ‘the scheme of which provides for the acquisition, for the purposes of entitlement to benefits, of contributions unduly paid in respect of which the determination of undue payment is more than five years later than the date on which payment was made‘. This is because the purpose of Article 2(18) of Law no. 335/1995 is precisely to fix an “annual ceiling” for workers without contributory seniority at 31 December 1995, which constitutes not only a mandatory ceiling for the purposes of their contribution base but also the basis of the retirement age. On this point, the Institute refers to Circular 282 of 15 November 1995, in which it had already specified that social security contributions unduly paid are not counted as contributions eligible for retirement.
Recovery of undue non-prescribed contributions
In its circular, INPS points out that, in order to avoid the need to make payments in excess of the ‘annual ceiling’, employers must first identify the correct social security scheme applicable to employees, acquiring their declarations both when the employment relationship is established and during its course.
At the operational level, the employer is then required to declare monthly in the Uniemens flow the scheme applied to each employee by filling in the appropriate section, adding the value “Y” if the worker is subject to the contribution scheme or the value “N” if not.
As for the recovery of excess contribution not prescribed, the INPS points out that it can be requested in the following ways:
In addition, employers will have to transmit Emens variation flows for the placement of individual personnel.
Management in the Uniemens flow of the indemnity in lieu of notice
Finally, INPS points out in its circular letter that in order to ensure the allowance in lieu of two years’ notice paid to a worker subject to the maximum contribution rate is correctly subject to contribution, reference should be made to the provisions of message 159/2003. It states that the ceiling for the year will apply only to the tranches of allowances falling in the same year. These quotas may be fully, partially or not at all subject to contribution, depending on the value of the ceiling reached and the portion of the indemnity, which temporarily falls within the next year and must be subject to the ceiling of the following year.
The Supreme Court of Cassation, Work Section, with sentence 13534 of 20 May 2019, declared a dismissal for just cause of an employee who had reacted to being slapped by a colleague, to be lawful.
Facts and previous judgments
A sales employee, reacting to being slapped in the face by a colleague became involved in a fight with that colleague in front of the customers. The company, which was their employer, had thus started disciplinary proceedings resulting in dismissal for just cause.
The Court of Sassari, where the dismissed employee first appeared, considered the withdrawal to be unlawful, as the employee had been defending herself after having been slapped in the face.
The Court of Appeal in Cagliari reversed the initial decision, declaring legitimate the de quo withdrawal, citing that the employee, knowing the violent and aggressive nature of their colleague, had deliberately provoked them in front other colleagues and customers making them behave in a certain way.
The decision of the Supreme Court of Cassation
Regarding the decision of the Court of Appeal, the woman appealed to the Supreme Court of Cassation citing violation of Article 2219 of the Italian Civil Code and Article 229 of the National Collective Labour Agreement for Employees in the Tertiary Sector.
In the worker’s view, the ‘litigious quarrel followed by de facto working arrangements, including between employees, which are detrimental to or disruptive to the normal exercise of the activity‘ provided for in Article 229 of the Staff Regulations cannot lead to dismissal where, as in the present case, the conduct is justified by a reaction to the aggression of others.
On this point, the Supreme Court of Cassation stated “collective agreement does not unfavourably obligate the employee“. Even when the worker’s behaviour corresponds contractually to a case justifying disciplinary dismissal, ” a concrete assessment must be made (…) by the judge, in merit of the real extent and gravity of the worker’s behaviour, also from the subjective point of view of guilt or malice” (see Supreme Court of Cassation no. 8826/2017; Supreme Court of Cassation no. 10842/2016 among others)
According to the Court, “the list of cases for just cause dismissal contained in collective agreements is purely illustrative, so that it does not preclude an independent assessment by the judge in merit of a serious breach (…) to terminate the relationship of trust between employer and employee” (Supreme Court of Cassation no. 2830/2016; Supreme Court of Cassation no. 4060/2011 etc.).
On the contrary, “collective agreements obligate the employee in a favourable way“. Where the provisions of the collective agreement are more favourable to the worker – in the sense that the conduct alleged against her is included among the infringements punishable by a protective measure – the court cannot consider the withdrawal to be lawful. This is because we must “give precedence to the assessment of lesser gravity of that particular conduct as a lower grade disciplinary offence“
In the light of the above, the Supreme Court believes that the Court of Appeal has correctly made a concrete assessment of the facts, considering that the conduct of a worker aiming to provoke her colleague is not comparable to that of a worker who merely reacts to the aggression of others. Consequently, the Supreme Court of Cassation dismissed the woman’s appeal and confirmed the lawfulness of the order of dismissal.
The Supreme Court of Cassation, with order no. 14254 of 24 May 2019, stated that, in the context of a collective dismissal due to staff cuts, in order to avoid indirect discrimination, the percentage of women dismissed should not be greater than that of the entire female work force in relation to the jobs being considered.
Facts
A worker who considers her dismissal to be discriminatory, brought proceedings before the judicial authorities in order to obtain a declaration of unlawful dismissal for breach of the percentage of female labour workforce provided for in Article 5(2) of Law No 223/1991. This provision states that ‘the undertaking may not (…) dismiss more women than the percentage of female labour employed in respect of the jobs in question’.
The case involved six male and three female employees: two women (including the plaintiff) were dismissed compared to one male employee. Since the total percentage of female workers employed was 33.33% and the actual percentage dismissed was 66.66%, the regulations were consequently breached according to the plaintiff.
The Supreme Court of Cassation, confirming the decision in merits, rejected the appeal filed by the company, thus confirming the interpretation of Article 5, paragraph 2, of Law 223/1991.
The decision of the Supreme Court of Cassation
In the context of a collective procedure for the reduction of personnel, the above rule requires that the comparison to be made in relation to the personnel to be expelled from the production cycle must first be proportional to the planned job reduction. In essence, the comparison should cover the business area covered by the procedure, so as to ensure that the proportion of female employment in the total number of employees remains the same.
The Supreme Court of Cassation, in this sense, specifies that Article 5, paragraph 2, of Law 223/1991 does not provide for a comparison between the number of workers of the two sexes before and after employment, but requires verification of the percentage of women workers so as to proceed with the dismissal of a number of employees in which the female component must not exceed the percentage previously determined.
This means that, in the business context, employees to be dismissed must be chosen in such a way as to ensure that the proportion of female employment in the total number of employees remains constant.
Rebus sic stantibus is necessary, in order to avoid so-called indirect discrimination in collective redundancy procedures, for maintaining the existing balance in terms of the proportion between male and female workers.
The Court of Bari, with judgment 2636 of June 10, 2019, found the just cause dismissal lawful of a worker for having posted via his Facebook profile – installed unduly on the company device – messages revealing business secrets to competitors.
Facts of the case
A worker, sixth level business secretary under the National Collective Contract of Tertiary Work, was justly dismissed by his employer. Following the employee’s judicial appeal against the withdrawal, the company revoked the expulsion measure.
Afterwards, the company filed a disciplinary action against the worker for:
The company was aware of this information because the telephone remained in the company during the employee’s absence due to illness and incoming messages were checked by a legal representative.
The worker, in justifying their actions, denied these accusations declaring themselves to be completely uninvolved. The company ended proceedings by ordering her to be dismissed for just cause.
The employee objected to the invalidity of the notice of termination, as she was ordered to do so after the termination of employment, i.e. when the reason for the termination of the employment relationship had already occurred.
On the basis of the absence of material fact on which the dismissal was based, the lack of just cause and of infringement of the principles of specificity and the timeliness of the disputes, the worker applied for this unlawfulness to be established and declared, ordering the company to reinstate her, to pay, by way of compensation, a sum equal to 24 months’ total de facto remuneration and to pay social security contributions.
Appearing in court, the company:
The decision of the Court of First Instance
In the view of the Court of in the First Instance, the conduct of the worker in this case is such as to constitute a just cause for dismissal.
First of all, the Court of First Instance, in accordance with the established case-law on this point, observed that, for the purposes of establishing just cause, the employer must prove, on one hand, the seriousness of the facts alleged against the worker objectively and subjectively, the circumstances in which they were committed and the intensity of the intentional element, and, on the other hand, the proportionality between those facts and the penalty imposed (see Civil cassation, no. 35/2011).
That said, the Court considers that, from an objective point of view, the conduct of the official constitutes a serious disciplinary offence. In particular, the worker, in addition to having unduly installed a Facebook profile on their company phone, has used this device to conduct frequent and numerous private conversations during working hours, revealing, among other things, confidential company information.
The abovementioned, demonstrated in court with screenshots of the individual conversations, were deemed to be so serious as to irreparably damage the relationship of trust with the company. In particular, according to the judge, the conduct constituted a violation of the duties of fairness and good faith as well as of the contractual obligations assumed of diligence and fidelity.
In the light of the above, the Court of First Instance dismissed the employee’s appeal and declared her dismissal to be lawful.
