As of 14 November 2018, the scenario of possible consequences in the event of unlawful dismissal of an employee hired in the era of the Jobs Act has radically changed. On that date, in fact, the reasons were published in the Official Gazette for ruling no. 194/2018, with which the Constitutional Court declared the constitutional illegitimacy of the main innovation of the so-called “increasing protection contract”, i.e. the determination of the compensation due for cases of unlawful dismissal on the basis of seniority alone. Furthermore, according to the Consulta, the formulation of the indemnification criterion introduced by the Jobs Act would also have been contrary to the principle of reasonableness, since the indemnity thus determined could have been insufficient to guarantee “adequate compensation for the concrete prejudice suffered” by the dismissed worker.

Despite the fact that the ruling was published in the Official Gazette on November 14 formerly only with the issue of the press release, which took place on September 26, the courts with jurisdiction began to disregard the algorithm introduced by the Jobs Act in 2015, which established the recognition of a fixed indemnity to be determined according to the length of service of the worker concerned. This is the case of the Court of Bari, which, in its judgement of 11 October 2018, ordered the employer company to pay a compensation payment of 12 months, against the 6 months due on the basis of a rule of law that was still in force at the time of the facts. But apart from these episodes, the real effect of the judgement under examination was to determine a sort of “return to the past”. Apart from cases of nullity of dismissal, the discretion of the Judges will be the determining factor in the amount of damage due to workers in the event of unlawful dismissal, and this regardless of the hiring date of the employee. It is clear, therefore, that the Court’s judgement marks a change of course that increasingly distances the principle of “legal certainty” from labour relations and, above all, introduces yet another system of protection that is difficult for foreign investors to understand.

If, in fact, the entry into force of the Jobs Act had marked a historical turning point in Italian labour legislation, which was also not affected following the Dignity Decree – which was limited to intervening only on the limits of indemnity without affecting its mechanism of quantification – the Constitutional Court has provided a strong setback, once again putting the randomness of the risk of the case at the centre of labour disputes.

This without considering the fact that, as we are seeing, the innovations of the second half of 2018 have already led to a significant increase in the propensity to appeal to the labour court to settle disputes.

The third Labour Section of the Civil Court of Rome, by ruling 4354 dated 8 May 2019, stated, the conciliation report signed by the worker in the trade union, can be appealed within the period referred to in Article. 2113 of the Civil Code, where the national collective bargaining agreement does not govern the institution of conciliation and its procedure and if the union representative does not provide effective assistance.

The facts

An employee of a company operating in the metalworking sector, formally hired with effect from 21 April 2015 and dismissed on 16 May 2016, challenged before the Court of Rome the conciliation report signed by the trade union on 21 April 2015 whereby she had waived all claims related to the employment relationship with the same employer as of 21 January 2003. In particular, the applicant claimed that (i) she had worked for the same employer as of January 2003 under a series of uninterrupted contracts of employment; (ii) she had been induced by the employer to sign, on 21 April 2015, a trade union conciliation report with any waiver of her previous relationship as the only way to be able to proceed with her recruitment; (iii) she had never met the trade union representative before the meeting and that the latter had merely been a by-stander at the meeting. The worker therefore concluded that the relationship was an employment relationship as from 1 January 2003 and that the employer was ordered to regularise her contributions and pay the relevant differences in pay. The employer was sued, resisting the adverse questions and insisting on the validity of the minutes signed in the trade union and for its challengeability under the last paragraph of Article. 2113 of the Civil Code.

Reference legislation

The institution of relinquishments and transactions in the field of employment relations is governed by art. 2113 of the Italian Civil Code which, after having sanctioned, in the first paragraph, the invalidity of relinquishments and transactions concerning the rights of the employee deriving from mandatory provisions of the law and of collective agreements or contracts, establishes, in the second paragraph, “the challenge must be proposed, under penalty of forfeiture within six months from the date of termination of the relationship or from the date of the renunciation or transaction, if these have occurred after the same termination“. The same provision also specifies, in the last paragraph, that the challengeability regime does not apply “to the conciliation that has taken place pursuant to articles 185, 410, 411, 412-ter and 412-quater of the Code of Civil Procedure”.

The decision of the Court of Cassation

The Court of First Instance before which the case ruled on the appealability of the report. In particular, according to the Court of First Instance, the minutes were signed in a place other than those listed in the last paragraph of Article 2113 of the Civil Code, which are to be regarded as obligatory.

According to the reconstruction offered by the Judge, the incontrovertible settlements are to be considered only and exclusively those signed before the conciliation commission established: (i) with the ITL possessing territorial jurisdiction, or (ii) in accordance with the provisions of the national collective labour agreement applicable to the relationship inferred in court.

In the case examined by the court of merit, the CCNL did not regulate the institution of conciliation and the minutes were signed at the company headquarters before a trade union representative. The minutes thus signed were subject to the right of appeal referred to in the second paragraph of Article 2113 of the Italian Civil Code.

Moreover, it appeared from the investigation carried out, according to the Court, that the trade union representative did not provide any real assistance to the employer, having merely attended and remembered that the minutes would become conclusive. The above was not sufficient to ensure that the worker was fully aware of the content and effects of the agreement she was to sign.

It therefore concluded that the appealed was admissible.

Conclusions

By the relevant ruling, the Court of First Instance, in part, offered a restrictive interpretation of Article 2113 of the Italian Civil Code and, in part, confirmed a well-established case-law approach.

In the present case, the restrictive interpretation of Article 2113 of the Italian Civil Code is to be found in the part in which it is stated that the conciliations signed by the trade unions do not fall within the provisions of the last paragraph of the legislative provision in question if not carried out pursuant to Article 412 ter of the Italian Civil Code. In fact, the latter provision would appear to be a “closure” provision and not an exhaustive list of places of conciliation.

The provision is, in fact, listed as “Other methods of conciliation and arbitration provided for by collective bargaining” and provides, “The conciliation and arbitration, in the matters referred to in Article 409, may also be carried out at the offices and in the manner provided for by the collective agreements signed by the most representative trade unions“. In addition, Article 2113 of the Italian Civil Code refers to Article 411 of the Italian Civil Code, which expressly refers to the third paragraph of the Code as the place where trade unions can carry out their conciliation procedure.

On the other hand, the principle whereby, in the absence of effective trade union assistance, the report can be challenged is a principle which has been emphasised several times in the case-law both on the substance and on the lawfulness of the case. Finally, the Court of Cassation, by judgment no. 9006 of 1 April 2019, confirmed that waivers and transactions concerning rights provided for by mandatory provisions of law or collective agreements, contained in minutes of conciliation concluded by the trade union, cannot be appealed by the worker. This occurs in that the assistance provided by the trade union representatives has been effective, so as to enable the worker to become aware of what right to renounce and to what extent.

Other News:

Appealability of agreements signed with the involvement of trade unions

https://www.delucapartners.it/en/our-verdicts/2017/voided-if-the-worker-has-been-deceived/

The Court of Rome, Labour Section, by ruling of 6 May 2019, has discussed hetero-organized contracts of collaboration, developing further the direction of the jurisprudence that arose in relation to art. 2 of Legislative Decree. 81/2015 on the occasion of the so-called ” Foodora case”.

The facts

The dispute in question concerned the collaboration between a company that provides call center services and its employees who, out of court, challenged the relevant contracts on the grounds that these were actually related to a permanent employment relationship.

In response to these appeals, the employer lodged a preventive action before the Court of Rome to establish the genuineness of the contracts in question. The collaborators joined the proceedings asking, principally, for an assessment of the employment relationship with the company and, alternatively, for the application of art. 2 of the Legislative Decree. 81/2015.

In this case, the collaborators’ activity consisted in the management of technical inefficiencies that may have been encountered by the users on their fixed and mobile telephone lines and/or on the modem. As part of the above activity, operators were free to assess when to render the service without any time constraints, communicating their availability. Where they were not available, they were not required to justify their absence and were not subject to any disciplinary sanction. At the same time, however, the company, through its team leaders, gave precise guidelines on the duration of calls, the manner in which these had to be carried out, etc.

The judge hearing the case, with the exception of the employment nature of the aforesaid collaborations, dwelt on the possibility that the de quo relations might fall within the scope of hetero-organized collaboration contracts (co.co.org.), i.e. a tertium genus between the subordinate employment relationship pursuant to Article 2094 of the Italian Civil Code and the coordinated and continuous collaboration (co.co.co.) provided for by Article 409, no. 3, of the Italian Civil Code.

Art. 2, paragraph 1 of Legislative Decree 81/2015

Art. 2, paragraph 1 of Legislative Decree 81/2015, identifies three elements that must exist at the same time in order for the employment relationship to be governed by the rules on the employment relationship.

First of all, the work must be “exclusively personal“, meaning that it is impossible to delegate tasks to another person to be carried out by workers hired and paid directly by the worker. In addition, these collaborations must be “continuous”. Continuity is to be understood both as “non-occasionality” and as the performance of activities that are (even if interspersed) repeated over time in order to satisfy the needs of the parties (on this point, refer to the judgment of the Court of Appeal of Turin 26/2019). Finally, the collaboration relationships must be concretized in work performances “whose execution modalities are organized by the client also with reference to the times and the place of work“, integrating in this manner the element of the so-called “collaboration”. “hetero-organization.” This element is more invasive than the simple “coordination” typical of co.co.co. but less invasive than the “hetero-direction” typical of the employment relationship.

The decision of the Court of First Instance

The Court stated that, in the case in question, the collaboration relationships between the parties involved all three of the elements listed above and that, therefore, these fell within the scope of the case provided for by Article 2, paragraph 1, of Legislative Decree 81/2015.

However, according to the Court, these were not subject to the rules on the employment relationship as a result of the hypothesis repealing under Article 2, paragraph 2, of Legislative Decree no 81/2015.

This occurs because the aforementioned provision sets forth that the provisions of paragraph 1 do not apply, among other things, with reference to “collaborations for which national collective agreements entered into by trade unions that are comparatively more representative at national level provide for specific rules regarding the economic and regulatory treatment, because of the particular production and organizational needs of the relevant sector.

In fact, according to the Court, a possibility of derogation existed in the case in question, as the OO.SS. (trade unions) had signed a collective agreement that specifically regulated the economic and regulatory treatment of employees. Therefore, in case of such an agreement, the protections of subordinate work could not be applied, since the social partners had already defined a set of rules for semi-subordinate employees.

In other words, according to the ruling in question, in case of collective agreements that provide for a specific discipline for co.co.org. (contract for freelance work coordinated by an employer), these do not change in the employment in an expansive manner, but remain within the scope of application of the semi-subordinate work.

The Court of Cassation, by judgment no. 12174 dated 8 May 2019, ruled on art. 3, paragraph 2, of the Legislative Decree. 23/2015 stating, “the non-existence of the disputed material fact toward the worker, with respect to whom any assessment regarding the disproportion of the dismissal remains extraneous, includes not only the cases in which the fact has not occurred in terms of its materiality, but also all the hypotheses in which the fact, having occurred, bears no disciplinary significance“.

The facts

The Court of Genoa, hearing an action brought by a worker dismissed for having left her job, declared the disciplinary dismissal ordered unlawful and terminated the employment relationship from the date of dismissal itself, ordering the employer (in absentia) to pay compensation equal to four months’ salary, plus the costs of litigation.

The worker appealed the first instance decision in order to obtain recognition of the reintegration protection provided for by art. 3, paragraph 2, of the Legislative Decree 23/2015 on the ground that the contested material fact did not exist.

The District Court, in rejecting the exception formulated by the worker, observed that the conduct challenged had not been denied by the same in its historical reality, but rather it could not be considered, for the circumstances in which it occurred, to possess such gravity as to justify the removal measure.

Therefore, in the opinion of the Court of Appeal, the Court of First Instance correctly recognised the protection of damages pursuant to Article 3(1) of Legislative Decree No. 23/2015, quantified in 4 monthly instalments.

The employee appealed the Court of Appeal judgment before the Court of Cassation, invoking two grounds.

Applicable standards

The case in question falls within the scope of the Legislative Decree 23/2015, issued in implementation of Law 183/2014 which delegated, among other things, the Government to adopt one or more legislative decrees “in order to strengthen the opportunities for entry into the world of work of those seeking employment, as well as to reorganize existing employment contracts to render them more consistent with the current needs of the employment and production context and to render the inspection activity more efficient.”.

Among the principles and guidelines that the Government had to follow in completing this task, Law 183/2014 had also established “the provision for new hires under permanent contracts under increasing protection“, with respect to which the possibility of reintegration into employment had to be limited to null and discriminatory dismissals and specific cases of unjustified disciplinary dismissal.

In execution of these principles and criteria, the Legislative Decree 23/2015 was issued establishing the protection of workers, hired after 7 March 2015 (date of entry into force of the Decree) and for specific categories of workers who, although hired before that date, are recipients of the same, reintegration in residual cases. This occurred without changing the existing legal concepts of “just cause” and “justified” employer withdrawal.

Specifically, paragraph 1 of Italian Legislative Decree no. 23/2015 provides, “in cases where it is established that there is no dismissal for a justified objective reason or for a justified subjective or just cause, the judge shall declare the employment relationship terminated at the date of dismissal and shall order the employer to pay an indemnity (…)“.

Paragraph 2 of the same article provides, “only in the event of dismissal for justified subjective reason or just cause in which the absence of the material fact alleged against the worker is directly demonstrated in court, in respect of which there is no assessment of the disproportion of dismissal, the court cancels the dismissal and condemns the employer to the reintegration of the worker in the workplace and the payment of compensation (…)“.

The decision of the Court of Cassation

The Court of Cassation argues that the articulation of the protections provided for in Legislative Decree no. 23/2015 recalls the one already undertaken by Law 92/2012 (Fornero Law), also in its logic of considering the residual reintegration with respect to the indemnification protection.

Again in the opinion of the Court of Cassation, the expressions used by the Legislative Decree no. 23/2015 (“disputed material fact”) cannot but refer to the same concept of “disputed material fact” as developed by the case-law on lawfulness in relation to Article 18(4) of Law No 300/1970.

The fact that an event has occurred, but is disciplinarily completely irrelevant, cannot be punished using a different treatment from that provided for in cases where the event has not been committed. This is because the dismissal needs justification and is illegitimate if it is not supported by a “justified reason” or a “just cause”.

In support of this assumption, according to the Court of Cassation, there is the constitutionally oriented reading of the rule, having to affirm that “any judgment of responsibility, in whatever field of punitive law is expressed, requires for the material fact ascribed, from a subjective point of view, the referability of the same to the agent and, from an objective point of view, its referability in the actions legally appreciable as a source of responsibility”.

To reinforce this conclusion, one must consider that art. 3 of Legislative Decree no. 23/2015, similar to Article 18(4) of Law No 300/1970, refers to the dispute and, therefore, the “material fact complained of” is the fact that it is not only materially integrated but it also bear disciplinary significance.

The different lexical solution adopted by the legislator in 2015 is explained, according to the Supreme Court, by “the need to dispel interpretative doubts which at the time were well present in the jurisprudential and doctrinal debate regarding paragraph 4 of Article 18 of the new text“.

The Court thus overturned the ruling of the Court of Appeal, referring the case back to the court dealing with the substance of a case to ascertain whether the fact, although materially occurring, was of disciplinary importance.

The Court of Cassation, by order 11538 of 2 May 2019, stated that the employer may unilaterally revoke the vehicle assigned to the employee against payment, at any time, without notice and without the employee being entitled to any compensation or replacement compensation.

The facts

An employee asked the Labour Court Judge to order his employer to return his company car, assigned to him a few years earlier, assuming that the same had been granted “for mixed use”, as a fringe benefit of a retribution nature.

The applicant appealed the judgment of the Court of First Instance. The District Court, in confirming the first instance judgment, noted that in the present case the allocation of the car – according to what emerged from the relevant communication signed by the worker for acceptance – had taken place in accordance with the procedures laid down in the company regulations.

In this regard, the Court of Appeal pointed out that, pursuant to art. 1 of the aforementioned Regulation, the vehicle was to be considered in the exclusive interest of the company, so that it could be revoked (i) at any time and without notice, (ii) and the employee was not entitled to any indemnity or replacement compensation and (iii) the cost relating to the personal use of the car was to be charged to the payroll on 30 June and 31 December of each year.

Furthermore, the Court of Appeal observed that the use of the company vehicle in such a regulate manner, since it was in the interests of the employer and burdensome for the employee, was not such as to constitute remuneration in kind which could find its cause in the contractual synallagma; nor could it be held that the use had been granted without charge to the employee on the assumption that, since 2005, no deduction had been made in the pay slips relating to the use of the vehicle. In the opinion of the District Court, this alone was insufficient to demonstrate, in a clear and certain manner, the common will of the parties to change the enjoyment right as originally agreed in accordance with the Company Rules and Procedures.

The unsuccessful worker appealed the judgment of the Court of Appeal, opposing the employer by lodging a counter-appeal.

The decision of the Court of Cassation

The Court of Cassation, before which the case was brought, declared the appeal lodged by the employee to be inadmissible, thus confirming the decision of the presiding judges.

In particular, according to the Court of Cassation, from the factual assessment carried out during the trial phase (and not subject to specific censure) regarding the burden of use of the company vehicles, it follows that the granting of the same can be unilaterally revoked by the employer, without notice and without the employee’s right to any compensation.