In its very recent judgment no. 2274 of 23 January 2024, the Italian Court of Cassation ruled that it is lawful for an employer to give notice of a second dismissal pending a judgment concerning a previous dismissal based on different grounds. However, the second dismissal has no effect if the first dismissal is declared lawful by a final judgment.
An employee, pending proceedings relating to a first dismissal, brought legal proceedings challenging a second disciplinary dismissal imposed on him by his employer.
The proceedings relating to this second dismissal were settled by the so-called ‘summary phase’ of the Fornero Proceedings with the annulment of the dismissal as only one of the alleged facts had been proven.
Both the employee and the employer appealed against the summary phase order.
The two sets of appeal proceedings were not joined and ended with two separate judgments, both declaring the invalidity of the supervening second dismissal. This was because, pending those judgments, the first instance court had held the first dismissal to be lawful and, subsequently, the Court of Appeal, again with reference to the first dismissal, had declared the worker’s appeal inadmissible.
The two judgments delivered in the context of the appeal phase relating to the second dismissal were appealed against by both the employer and the employee.
The Court of Appeal – following the intricate procedural sequence of events summarised above – declared the second dismissal invalid on the basis that there had been a judgment, albeit not final, which had affirmed the lawfulness of the first dismissal.
The employer appealed to the Italian Court of Cassation against the Court of Appeal’s decision.
Pending the appeal to the Italian Court of Cassation proceedings relating to the second dismissal, that court also ruled on the first dismissal, confirming its lawfulness.
In the judgment under discussion, the Italian Court of Cassation judges therefore noted, preliminarily, the loss of interest on the part of the employer in insisting on the annulment of the ruling declaring the invalidity of the second dismissal, because such ineffectiveness was now to be considered confirmed by the final judgment.
It was only to rule on the costs of the proceedings that the Italian Court of Cassation upheld the employer’s appeal on the following grounds.
In the first place, the Court ruled that, in an employment relationship, the employer, if it has already given the employee notice of dismissal, may lawfully give notice of dismissal for a second time, based on a different ground or reason, because the latter is completely autonomous and distinct from the first.
According to the Italian Court of Cassation judges, both acts of withdrawal are in themselves theoretically sufficient to achieve the purpose, since the second dismissal is effective only in the event that the previous dismissal is held to be invalid or ineffective by a final judgment.
It follows that the Court of Appeal should have ruled on the lawfulness or otherwise of the second dismissal, since the judgment relating to the first dismissal had not – at the time – yet been concluded with a final judgment.
The Italian Court of Cassation, accepting the appeal brought by the employer, consequently ordered the employee to pay the legal costs of the proceedings.
Other related insights:
By Order of 13 November 2023, no. 31561, the Italian Court of Cassation ruled that, to fully comply with the repêchage obligation (obligation to relocate), it is necessary to assess whether hires made following the termination for justified objective reasons are of the same level of classification as the dismissed employee.
An employee, employed as a cashier in a bar, challenged her dismissal for abolition of her position.
Following the first instance judgment, in which it was ascertained that the termination was unlawful, the employer appealed.
The Territorial Court, reversing the ruling of the court of first instance, held that the dismissal was lawful. The court based this decision on evidence not only of the abolition of the job of cashier, but also of the fact that the worker had always and only performed the duties of cashier, having never performed duties as a counter or table attendant, tasks that were subsequently assigned to newly hired staff.
The judges of second instance also specified that “the fact – which is completely incidental and random – that multiple qualifications are placed in the same level of classification by the collective agreement is of no relevance. This allocation, in fact, is relevant for other purposes, i.e. to identify the regulatory and remuneration regime of the employment relationship of the employees thus classified, but it is completely <neutral>, i.e. irrelevant, for the purposes of the interchangeability of the related tasks”.
The Court of Appeal’s decision was appealed by the employee on several grounds.
The Italian Court of Cassation – accepting the appeal brought by the employee – ruled, preliminarily, that the employer, in fulfilling its repêchage obligation, cannot disregard careful consideration of the national collective bargaining agreement (contratto collettivo nazionale di lavoro, ‘CCNL’) applicable to the employment relationship.
Indeed, according to the judges of the Italian Court of Cassation, in the case of dismissal for justified objective reasons, and in the light of the new Article 2103 of the Italian Civil Code, the reference to the levels of classification described by a collective agreement is a relevant factor.
The Court specified that the CCNL “constitutes a factor that the judge will have to assess to ascertain whether or not the person who was dismissed was, in fact, able – on the basis of objectively verifiable evidence adduced by the employer and having regard to the specific training and entire professional experience of the employee – to carry out the duties of those who were hired ex novo, even if it is at the same or lower level”.
The Court of Cassation, finding no such assessment in the contested judgment on the merits, therefore upheld the employee’s appeal.
Other related insights:
By judgment No. 450 of 13 June 2023, the Court of Appeal of Messina established that if an employer has not trained employees on the specific risks related to the tasks for which they are employed, sick days attributable to harmful working conditions do not count towards the protected period. This applies even if the employer has taken the necessary measures to protect workers’ health under the general obligation to protect their psycho-physical wellbeing under Article 2087 of the Italian Civil Code.
The facts of the case
The facts of the case stem from a claim brought by a physiotherapist who was dismissed for exceeding the maximum sickness period. The worker challenged the dismissal, arguing that 57 days had to be deducted from the protected period because the absence was attributable to carpal tunnel syndrome which developed through lifting immobile patients (tasks to which she was assigned).
The worker’s application was upheld at the preliminary stage and subsequently rejected by the Court of Barcellona Pozzo di Gotto on the ground that, although the absences were attributable to an illness attributable to her tasks, the employer had fulfilled the obligation to safeguard health under Article 2087 of the Italian Civil Code.
The worker therefore appealed against the decision of the Court of First Instance before the Court of Appeal, which overturned the judgment.
The Court’s decision
The Court of Appeal stated that the employer’s failure to comply with the training obligation prevented the days of absence from being counted towards the protected period.
In the Court’s view, it was not sufficient that the employer had complied with the obligation to provide information on the general and specific risks linked to the workers’ individual activities, since training has a further purpose, namely compliance with obligations to provide information.
In this context, the Court attached importance to the various “training” and “information” obligations by clarifying their differences. Training is the educational process necessary to acquire the skills for the safe performance of tasks, identifying, reducing and managing risks. Information, on the other hand, provides the knowledge necessary for the management, reduction and management of risks. According to the Court, ‘the former constitutes the indispensable framework for the latter to be meaningful’.
The training must, moreover, meet specific standards of adequacy, which require that the employer ensures that workers receive training tailored to the specific risks of each worker’s tasks. In this context, compliance with the obligation to provide information does not therefore replace the obligation to provide training.
Indeed, according to the Court, in the case in question it was highly probable that the worker, if she had been adequately trained, would not have had to undergo the operation, or would at least have had a shorter or less arduous course of treatment. This in turn would have reduced the number of sick days which would have fallen within the overall limit of 180 days over the three-year period.
This resulted in the breach of Article 2087 of the Italian Civil Code, which had a causal effect to the onset of the illness in the terms and times ascertained.
In this context, an employer’s failure to comply with the obligation to provide adequate training on health risks prevents days of absence from being taken into account when counting the maximum period of sickness.
Consequently, in the Court’s opinion, in the present case, the dismissal by the employer taking into account those absences was unlawful, with the consequent reinstatement of the worker in the workplace and compensation for damages, under Article 18 of Italian Law No. 300/1970.
Other related insights:
With the recent judgment No. 20284 of 14 July 2023, the Italian Court of Cassation ruled that, even though not specifically provided for in the disciplinary code, breaches by the employee of the fundamental duties underlying the employment relationship are valid grounds for dismissal.
The facts of the case
An employee working as a Level I salesperson was dismissed by the employer company due to his constant failure to meet the production targets periodically set by the company.
The employee challenged the dismissal before the Court, which – by comparing the results achieved by the employee with the targets set by the company schedules – confirmed the unequivocal poor production performance of the worker. Therefore, the Judge hearing the case declared the dismissal to be lawful, classifying it as dismissal for a justified subjective reason.
The worker appealed the ruling before the Rome Court of Appeal, where he argued that the dismissal was unlawful due to the failure to display the disciplinary code in the company.
In this regard, the Court, in upholding the judgment of first instance, held that the failure to display the disciplinary code in the company was irrelevant for the purposes of determining the nature of the dismissal, since the worker was charged with negligent and inexperienced failure to fulfil his obligations under the employment contract, and that the dismissal was based on the worker’s poor production performance resulting from his constant failure to comply with the work schedules previously established.
For the Court, moreover, for the purposes of assessing the seriousness of the misconduct, previous disciplinary records that indicate the worker’s repeated offences must also be taken into account.
The worker therefore challenged the judgment of the Court of Appeal before the Italian Court of Cassation.
The decision of the Italian Court of Cassation
When confronted with the issue, the Italian Court of Cassation confirmed the rulings of the lower courts on the lawfulness of the dismissal.
First of all, the Judges of the Italian Court of Cassation reiterate that the power to terminate the employment contract in the event of significant breach of contractual obligations stems directly from the law (Article 3 of Italian Law No. 604 of 1966) and does not require, in order for it to be lawfully exercised, a detailed provision, in the collective bargaining agreement or in the company disciplinary regulations, of every possible instance of conduct constituting the above requirement. Indeed, it is for the judge to verify, if the lawfulness of the termination is contested, whether the alleged incidents constitute a legal case of non-performance.
For this reason, continues the Court, even if not specifically provided for by the contractual provisions, serious breaches of the fundamental duties associated with the employment relationship constitute grounds for valid notice of withdrawal; in particular, those duties that underpin the existence of the employment relationship, such as the duties imposed by Articles 2104 and 2105 of the Italian Civil Code (obligations of diligence and loyalty) as well as those deriving from company policies.
Therefore, according to the Italian Court of Cassation, with regard to disciplinary sanctions, a distinction must be made between offences relating to the breach of specific rules concerning company organisation and production methods, which can only be recognised insofar as they are expressly provided for, and offences relating to conduct that is manifestly contrary to the duties of workers and the interests of the company, for which specific inclusion in the disciplinary code is not required.
With regard to the disciplinary code, the judges reiterate that it must, in any event, be drafted in such a manner as to make the cases of infringement clear, although by providing an outline and not a detailed description, and to indicate the corresponding penalties, albeit in a general manner and which can be adapted based on the actual and specific non-compliance.
Ultimately, therefore, the aforementioned judgments uphold the lawfulness of the employer’s termination of employment even where the alleged breach of contract does not constitute a case that is expressly set out in the company’s disciplinary code or in the national collective bargaining agreement, but takes place by infringing the duties underlying the employment relationship.
Other related insights:
By order No 11136 of 27 April 2023, the Italian Court of Cassation ruled on the subject of dismissal for exceeding the job retention period. The Court held that absences due to injury caused to the employee by things in the employer’s custody must be included in the protected period, if the employer is able to prove that accident prevention precautions were taken and the unforeseeable and unavoidable nature of the harmful event.
The facts of the case and the decision on the merits
The employee was employed under a local authority catering sub-contract and challenged her dismissal for exceeding the protected period. In support of the application, the employee submitted that, in calculating the absences taken into account for the purpose of the protection period, those resulting from the accident which occurred due to the explosion of a thermal display cabinet owned by the principal should not have been included.
The Court of Appeal of Venice rejected the appeal brought by the employee, confirming that, in the present case, the days of absence resulting from the accident had to be taken into account, since the absolute unforeseeability of the event had emerged during the proceedings. In addition, the lower court found that the contracting authority had delivered the equipment in good condition at the time of the contract and that it complied with the legislation.
The judgment of the Italian Supreme Court
The employee appealed to the Italian Court of Cassation against the decision of the Court of Appeal of Venice.
With particular reference to the issue of absences taken into consideration for the purpose of calculating the protection period, the Italian Court of Cassation, on the basis of its precedents, confirmed that the employee absences due to an accident at work or occupational disease are attributable, in principle, to the broad and general concept of accident or illness set out in Article 2110 of the Italian Civil Code. They are, therefore, normally included in the protection period.
In fact, for the absence not to be included in the protection period, the employer must be liable for the disease and its origin under Article 2087 of the Italian Civil Code.
Liability under Article 2087 of the Italian Civil Code, the Court pointed out, does not in fact represent strict liability, since it must be linked to the breach of obligations of conduct imposed by legal norms or suggested by experimental or technical knowledge of the time. In that context, therefore, the burden of proof lies with the employee who complains that he or she has suffered damage to health as a result of his or her work, to prove that damage, as well as the harmfulness of the working environment, and the link between them. Only if the employee has provided proof of these facts does the employer bear the burden of proving that accident prevention precautions have been taken and/or the unforeseeable and unavoidable nature of the harmful event.
Applying the aforementioned principles, the Italian Court of Cassation dismissed the appeal as the trial court had found that, in the present case, the wine cellar explosion was an unforeseeable event in view of the required standard of care and applicable safety precautions.
Therefore, the dismissal was held to be lawful, given the inclusion of the absences due to injury in the calculation of the protection period.
Other related insights:
Legitimate dismissal of an invalid worker for exceeding the protected period
