On December 12, 2024, the Court of Cassation admitted the referendum requests filed in July by the CGIL concerning, among other things, the regulation of unlawful dismissals under the so-called the so-called increasing protection employment contract (“contratto a tutele crescenti” in Italian parlance) under Legislative Decree No. 23/2015.
This system has always interested public opinion and political debate, and still represents a point of fracture between the social partners. Suffice it to say that while, last September 8, 2024, at the first public meeting between CGIL leader Maurizio Landini and Confindustria president Emanuele Orsini, the latter confirmed that “overcoming the Jobs Act would be a plunge into the past, we have a gap between labor supply and demand that is worth 43 billion a year. For us today the issue is attracting people, not overcoming a measure that is working,” on the other hand, the CGIL leader said that with the Court of Cassation’s green light to the referendum questions “a great opportunity opens up for the Country.”
Given the persistent gap between the positions of the social partners and the strong impact that the “contratto a tutele crescenti” has on public opinion (proof of this is, most recently, the achievement of the referendum quorum), it seems useful to assess whether, from a mere technical/legal point of view, the legislation set forth in Legislative Decree No. 23/2015 currently presents substantial differences from the protection offered by Article 18, of the Workers’ Statute, as amended by Law No. 92/2012, such as to make its repeal – in the opinion of the referendum supporters – indispensable with a view to expanding the scope of applicability of reintegration protection.
In its original formulation, the legislature’s intervention was characterized by the automatic determination of the compensation due in cases of wrongful dismissal, based on a mathematical formula, to overcome a system hinging on the discretion of the judge.
Continue reading the full version published in Il Sole 24 Ore.
In its order no. 26440 dated October 10, 2024, the Court of Cassation, Labor Section, reaffirmed the legitimacy of the dismissal imposed on an employee who had addressed a client in a rude and vulgar manner, once again underscoring the boundaries of judicial review in determining “just cause” for termination.
The judicial proceedings originated from the disciplinary dismissal of an employee assigned to the butcher counter of a supermarket, who had been accused by the employer of addressing an elderly customer with aggressive and inappropriate language.
While the court of first instance upheld the employee’s challenge to the dismissal, the Court of Appeal of Cagliari reversed this decision, confirming the legitimacy of the dismissal order.
In this case, the appellate court considered the employee’s behavior a serious breach of his contractual obligations, particularly the duty to “use courteous manners with the public and maintain a conduct consistent with civic duties,” warranting disciplinary dismissal pursuant to Article 215 of the collective bargaining agreement for employees in the Tertiary, Distribution, and Services sector, which governed the employment relationship.
The Court specifically emphasized the seriousness of the employee’s conduct, noting that the counter attendant, on that occasion, not only failed to apologize to the elderly customer but also escalated the argument with increasingly heated tones, resulting in what was described as “an undignified and somewhat concerning scene.” In assessing the appropriateness of the dismissal, the Court of Appeal also took into account the employee’s prior disciplinary record from the preceding two years. Although these prior incidents were not specifically similar, they highlighted a pattern of repeated non-compliance with company rules, rendering the continuation of the employment relationship unsustainable.
In the ruling under discussion, the Court of Cassation, by rejecting the employee’s appeal against the Cagliari Court’s decision, seized the opportunity to consolidate its stance and reaffirm certain prevailing principles concerning termination for just cause under Article 2119 of the Civil Code.
In particular, the Court of Cassation observed that “just cause,” understood as conduct that precludes even temporary continuation of the employment relationship, falls within the scope of so-called general clauses—normative provisions of limited and general content that require judicial specification in interpretation, “through consideration of both external factors relating to general societal awareness and principles implicitly referenced by the provision itself.”
Continue reading the full public version on Norme e Tributi Plus Lavoro del Il Sole 24 Ore.
By order no. 10663 of 19 April 2024, the Italian Court of Cassation stated that the employer bears the burden of proof in proving that remuneration has been properly paid.
The worker filed an application for summary judgment to obtain an order against the company to pay the amount indicated in the November 2015 pay slip.
In the first instance, the first instance Court found that the payment was due to the worker.
The company appealed to the Court of Appeal. The Court of Appeal upheld the first instance decision, ruling that the employer had not discharged its burden of proof relating to proving in court that the sum had been paid.
The Italian Court of Cassation – confirming the Court of Appeal decision – preliminarily noted that, once the existence of an employment relationship has been ascertained, the employer is under a strict duty of proof to establish that the remuneration has been paid. The employer can do this by means of the normal documentation i.e., regulatory pay slips bearing the worker’s signature. If the employer cannot prove that it has paid the remuneration due to the employee through pay slips, it must provide appropriate documentation of the relevant payments that it has made in relation to the employee’s individual claims.
According to the Italian Court of Cassation, giving employees at the time of payment of remuneration a statement containing an indication of all the constituent elements of the remuneration does not prove payment where the worker states that it is inconsistent with the remuneration actually paid.
According to the Italian Court of Cassation, the burden falls on the worker only if he/she, after signing the pay slip, alleges that the remuneration indicated in the pay slip is inconsistent with the remuneration paid.
As the present case did not fall within the latter situation, the Italian Court of Cassation rejected the company’s appeal.
Other related insights:
An employee dismissed for drug trafficking has been reinstated and compensated. The drug related conviction occurred in the past and pre-dated the employment, when the company took over the staff from the outgoing company after taking over a contract held under a public administration tender. The Italian Court of Cassation, employment division, by order no. 8899 of 4 April 2024 held that the material fact existed but that this did not give rise to a legal ground: an old conviction has no disciplinary relevance where the employer does not prove “the relevance of the old facts on the relationship’s operation”. A criminal judgment that becomes final during the relationship, onthe other hand, may trigger the employer’s withdrawal for just cause if the relationship of mutual trust with the company fails.
Continue reading the full version published on (Italia Oggi, page 14).
The quantity of work is not synonymous with the quality of the work. Therefore, if it is a question of comparing a part-time worker with a full-time worker in relation to the amount of work performed (quantity), it is appropriate to apportion the salary based on the hours worked (so that the part-time worker receives, in proportion to the hours worked, the same pay as the full-time worker). But if it is a question of comparing workers of the same level where one is part-time and the other full-time, in relation to the service provided (quality), then it is not fair, and indeed it is occupational discrimination, to apportion experience acquired (professional skills) on the basis of hours worked. This was established by the Italian Court of Cassation in judgment no. 4313 of 19 February 2024, which added that penalising part-time work is discriminating against women, who are more likely to work part-time.
Continue reading the full version published in (Italia Oggi, page 14).
