With a view to ensuring adequate support for parental care, through measures aimed at promoting opportunities to reconcile work and personal life, Article 24 of Legislative Decree no. 151/2015 regulates the institution of holidays/retirement jointly. Specifically, it provides for the possibility for all workers to transfer free of charge to their colleagues their rest days and accrued holidays to allow them to care for their minor children who need constant care for particular health conditions. The object of the transfer may be (i) periods of paid annual leave exceeding 4 weeks and (ii) hours exceeding the necessary daily rest period of “eleven hours (…) every 24 hours” and those exceeding “twenty-four consecutive hours, usually coinciding with Sunday, to be combined with the hours of daily rest” as referred to in Legislative Decree no. 196 of 30 June 2003. 66/2003. The relative measures, conditions and methods of transfer are normally established by the collective agreements entered into by the most representative trade unions at national level, in compliance with the provisions on holidays and rest periods of the aforementioned Legislative Decree. 66/2003. In any case, given their nature and taking into account the definition provided by art. 51 of the Legislative Decree, these solidarity systems are not subject to any form of compensation. 81/2015 of “collective agreements“, may also be established by agreements at company level. This occurs on condition that the aforesaid agreements improve conditions or tend to extend the scope of application of Article 24 of the Legislative Decree. 151/2015, also with regard to the conditions of workers who should benefit from the transfer of holidays or rest days by colleagues.

The National Council of Labour Consultants has submitted an application to the Ministry of Labour for its opinion on the configurability of the silence of consent with regard to the request for authorization to install audiovisual equipment and instruments pursuant to art. 4 of Law 300/1970. This considering the provisions of Law 241/1990 whereby the silence of the competent administration is equivalent to granting the application.

In particular, the Ministry was asked whether the silence of the administrative body before which the case was brought, in relation to the application for authorisation, could be regarded as tacit consent in this regard, whereby the company could proceed with the installation of the equipment/tools requested.

The conclusion of the Ministry

Article 4 of the Workers’ Statute aims to reconcile employer needs with the protection of the dignity and confidentiality of the worker at the workplace. Specifically, “we want to avoid that the work activity is improperly and unjustifiably characterized by continuous and rigid control, such as to eliminate any profile of autonomy and confidentiality in the performance of work.

The provision in question pertains, first of all, to an agreement between the employer and the trade union representatives as to the possibility of installing equipment / tools that allow remote work. In the absence of an agreement, the installation is subject to authorisation on the part of the Labour Inspectorate.

The Guarantor for the protection of personal data has also intervened several times to regulate this case, in consideration of the close interaction that links art. 4 of the Workers’ Statute to the regulations on the issue of privacy, often referred to in the authorizing measures.

Therefore, according to the Ministry, the wording of Article 4, first paragraph, of Law 300/1970 “does not allow the installation and use of control systems without an express authorization, whether of a negotiating (trade union agreement) or administrative (the measure) nature“.

According to the Ministry, this interpretation falls in line with the jurisprudence whereby “the inequality in fact and, therefore, the indisputable and greater economic and social strength of the entrepreneur, compared to that of the worker, gives an account of the reason why the codetermination procedure is to be considered mandatory, as it can be replaced alternatively by the authorization of the territorial labour department” (acc. to Criminal no. 22148/2017), in continuity with a consolidated interpretative orientation on the subject (see Criminal no. 51897/2016; Civil Code no. 1490/1986)“.

In view of the foregoing, the institution of silent consent cannot be configured for procedures that can be activated by submitting an application pursuant to Article 4(1) of Law No 300/1970. An express order granting or rejecting the application must be issued.

On 15 May 2019, by order no. 13025, The Supreme Court returned to deal with the right of the judgment of first instance established pursuant to Article 1 (51) Law no. 92/2012 (“Fornero’s Law”) to be recognized in the second phase (so-called opposition phase).
The Court of Cassation has observed that the opposition phase must be understood not as a mere revisio prioris instantie of the first phase (“summary phase”), but as a real continuation of the first instance judgement that is re-expanded acquiring the characteristics of the ordinary procedure.
On this point, it pointed out that “in the event of mutual unsuccessfulness in the summary phase and opposition by only one of the parties, the other party may, in the phase with full knowledge of the facts, with the statement of defence, re-submit the unsuccessful applications and objections, even after the expiry of the time limit for filing an independent opposition and without the need to formulate a counterclaim with the relative application for the setting of a new hearing pursuant to art. 418 of the Code of Civil Procedure, considering that the opposition is not contestable, but produces the re-expansion of the judgement, calling on the judge of first instance to examine the scope of the original appeal for dismissal in the fullness of full knowledge”.
Expounding upon the facts of the case, a worker had brought an action before the Court of Caltanissetta to have the disciplinary dismissal ordered by his former employer’s bank ordered illegitimate/null/invalid.
Both in the first phase of the Fornero and in the opposition proceedings, the Court of Caltanissetta confirmed the illegitimacy of the dismissal de quo, granting the worker exclusively indemnification protection. The employer was, in fact, ordered to pay compensation in the amount of 12 months’ salary.
At the opposition stage, the same Court had also held that the employer had lost the right to lodge a cross-appeal, given that no appeal had been lodged within 30 days of the publication of the court order. The employer, on the other hand, had filed 10 days before the scheduled hearing for the opposition proceedings.
The decision of the judge of first instance was appealed: (i) mainly, the worker claiming, among other things, greater protection – the reintegration or compensation but in the amount of 24 months – and (ii) in the alternative, the employer. In particular, the latter banned the withholding of the cross-appeal, reiterating the same grievances expressed with the cross-appeal already considered inadmissible at first instance.
The Court, which had territorial jurisdiction to reject the grounds of complaint put forward by the parties, dealt in particular and mainly with the employer’s cross-examination complaint.
According to the District Court, the decision of the Court of First Instance that the cross-appeal was inadmissible (with the result that the ruling on the unlawfulness of the dismissal was indisputable) was correct. This is because, in the context of the opposition judgement of the so-called ‘Fornero’s Law’, the discipline of late appeal set out in art. 334 criminal code cannot be applied.
The Court of Appeal’s ruling was challenged by the worker on two grounds and the employer, on cross-appeal, on four grounds. For our purposes, it is important to focus on the first means of redress proposed by the employer.
Specifically, the employer reported “the violation and misapplication of Article. 1 (51) of Law no. 92/2012 in so far as the Court of Appeal confirmed the belatedness, already declared in first instance, of the request for partial reform of the ordinance pursuant to Article 1, paragraph 49, Law no. 92/2012 “formulated” by the same at the time of filing on grounds of the appeal against the order in first instance of Fornero Law proposed by the worker.
This plea was considered by the Supreme Court to be preliminary and absorbed by the question of the legitimacy of dismissal for just cause and, therefore, addressed primarily.
The Judges of the Supreme Court, in accepting the plea in question, took up the dictates of the ruling of the Joint Civil Sections no. 19674 of 2014, whereby the particular nature of the Fornero Law – aimed at speeding up the process relating to the application of the protections under the new Article 18 of Law no. 300/70 – lies in the division of the first instance proceedings into two phases: one with summary knowledge and the other, defined as opposition, with full knowledge, with access for the parties to all admissible necessary proceedings and relevant to the ordinary procedure.
Thus, what happens as to the second stage of opposition? When one of the parties lodges an “opposition with an appeal containing the requirements of Article 414 of the Code of Civil Procedure, to be filed before the court that issued the opposite measure, under penalty of forfeiture, within thirty days of its service, or of the communication if earlier” (paragraph 51), the aptitude of the order issued at the summary stage to acquire the stability of the thing being judged ceases to exist (cf. Cass. No. 17443 of 2014; Court of SS.UU. n. 19674/2014 cit.), which only follows if it is not opposed by anyone within the term of limitation provided for (see Court of Cassation n. 21720 of 2018, in justification)”. So much so that “following the opposition, the order shall be replaced in its entirety by the judgment delivered at the end of the second stage which “provides … the granting or rejection of the application’ (paragraph 57, which refers to the same wording as paragraph 49) and not simply the revocation or confirmation of the order issued’.
In other words, according to Ermellini, the express reference
– to art. 414 Code of Civil Procedure, as to the requirements of the opposition appeal,
– to art. 416 Code of Civil Procedure, as regards the Memorandum of Appearance, and
– to art. 421 Code of Civil Procedure, with regard to the official powers of the judge
cannot but imply that the opposition must be modelled on the discipline of the ordinary first instance judgement referred to in Articles 413 et seq. of the Code of Civil Procedure, to which reference must be made to supplement the special judgement referred to in paragraphs 51-57 of article 1 of Law no. 92/2012.

The sustainable approach to investments is increasingly the benchmark for virtuous entrepreneurs, who place sustainability issues at the center of their entrepreneurial decisions. This is also increasingly the case in relation to the management of their own staff. An indication of this has also come from the Excellence & Innovation HR Award, the prize for the best practices and projects in the responsible management of human resources, launched by the De Luca & Partners law firm in 2018. In fact, at least 75% of candidate projects had linked initiatives to enhance human capital to corporate social responsibility activities or policies.

Moreover, the acronym ESG (environmental, social and governance) includes principles such as diversity and integration among human resources, with all that this entails in terms of the protection of human rights (the “S” factor). On the other hand, the “G” factor takes account of variables such as the relationships that exist among employees, the remuneration system and the procedures by which the company’s organisational structure operates.

Therefore, when we talk about ESG, we are also necessarily referring to the policies to be implemented in order to guarantee the fair and sustainability-oriented management of resources. In fact, it is important to plan processes/practices that aim to manage and enhance human capital within businesses, sustaining and promoting the “wellbeing” of all those who work there. Sustainability is a constituent element of the organisation, and is essential for dealing with challenges on the market and attracting talent. And this is where the role of the employment lawyer comes into play, because employment lawyers can support the Human Resources Department in adopting a staff management approach that improves the climate at the company and increases staff satisfaction. This can be done through the implementation of a welfare plan which – if well structured – allows a business (whether small, medium or large) to increase its productivity and employee participation. Specifically, through welfare plans, employees can be provided with complementary remuneration in addition to their so-called “financial” remuneration, which consists of goods or services that fall under advantageous tax rules for both the employer and the employee. Furthermore, the adoption of smart working policies should not be overlooked, as these could certainly guarantee (i) better employee wellbeing, (ii) the possibility for staff to reconcile their free time with their working hours, and (iii) better environmental sustainability in terms of a reduction in traffic and pollution, given the lower number of journeys to the workplace that need to be made. However, a remuneration system that is structured according to principles of equity, equal opportunities and meritocracy is also sustainable. Obviously, this all has a consequent benefit for the business, given that the wellbeing of employees will inexorably be reflected in their performance. So, ESG is both a point of reference and the starting point for all virtuous companies and entrepreneurs who wish to become and remain competitive on the market.

With order no. 10043 of 10 April 2019, the Italian Court of Cassation again ruled on the requirements that need to be met for a series of actions taken by an employer to constitute mobbing, in the case reported by a manager who had declared himself to have been the victim of behaviour presented as prejudicial to his position (specifically: unjustified change of room, delays in responses to his requests for organisational clarifications, or a failure to respond to such requests, and a lack of guidance).

In this case, the manager initially saw his claims of mobbing and for consequent compensation for non-financial damages accepted, but they were then rejected on appeal.

In particular, the Court of Appeal had deemed that there was not sufficient evidence to suggest that there had been an unequivocal strategy of mobbing against the manager, and therefore rejected the relative claim for compensation. Nevertheless, the Court of Appeal had in any case recognized the manager’s right to be compensated for damages due to liability under Article 2087 of the Italian Civil Code, with reference to a single episode in which the manager had been the recipient of offensive statements from the company’s general manager, with the manager also being able to provide irrefutable evidence of the offence incurred, with a consequent prejudicial effect on his health, and the causal link between the conduct and the prejudice (which was also confirmed by the court-appointed expert’s medical witness report, which was included the records of the case).

Following the judgment on appeal, the manager filed an appeal with the Italian Court of Cassation, arguing that the appeal judges had failed to examine some decisive facts relating to the dispute.

The Court of Cassation also rejected the manager’s appeal, and stressed that the overall assessment of the facts had been clear and convincing, given that the Court of Appeal had justified its decision in a coherent manner, with no flaws in its logic or arguments. In this regard, the Court of Cassation gave no importance to the fact that the appeal judges had not considered “tense and conflictive relations between the partied” in their qualification of the events in question, since they were not able to demonstrate any intent to persecute the manager.

It should be noted that the principle expressed by the Court of Cassation is partially in contrast with another recent ruling which, conversely, recognized that criticism from the employer could be deemed to constitute mobbing (Court of Cassation judgment no. 23923/2009).

That said, from an examination of the general guidelines normally shared by the Court of Cassation, it is clear that for a case of mobbing to be established there needs to have been be not just a single harmful act or multiple unrelated acts, but rather the reiteration of a number of acts and attitudes, even if they have no criminal significance, which converge to express the perpetrator’s hostility towards the victim and their effective ability to humiliate and isolate the employee in his/her work environment. In this specific case, such facts had not been correctly alleged or proven.

In conclusion, with the order mentioned above, the Court of Cassation confirmed the need for the employee, with whom the burden of proof lies, to demonstrate the alleged conduct that constituted mobbing and present characterizing events (which must be continual and decisive) that irrefutably represent persecutory intent.