Despite the failure to challenge previous agreements and the loss of the worker’s ability to challenge these agreements, exceeding the maximum limits permitted for fixed-term contracts can render the employment relationship invalid. This was established by the Italian Court of Cassation in judgment no. 15226/2023 of 30 May 2023, based on a well-established interpretation and adopting a restrictive reading of the rules governing fixed-term work.
The facts of the case
The ruling of the Italian Court of Cassation originates from a judgment of the Court of Appeal of Brescia (no. 127 of 2017) which rejected a worker’s appeal concerning a fixed-term contract and numerous previous relationships with the same employer.
In the case, the worker had complied with the legal time-limit of 60 days from the end of the relationship to challenge only the last agreed fixed-term contract. The Court of Appeal of Brescia, considering this fact, dismissed the appeal, rejecting all connected requests.
The worker lodged an appeal with the Italian Court of Cassation against the judgment of the Brescia Court of Appeal.
The decision of the Italian Court of Cassation
The Italian Court of Cassation partially reviewed the aforementioned decision of the Court of Appeal. On the one hand, it reiterated that ‘on the subject of the succession of fixed-term agency employment contracts, the out-of-court appeal of the last contract in a series of contracts does not extend to the preceding contracts, even where a period of less than 60 days has elapsed between one contract and the next for the purposes of challenging the contract’. Therefore, the Court confirmed that the challenge in relation to the last contract does not extend to the preceding ones, even if less time has elapsed between one contract and the other than is necessary to bring the challenge.
After establishing this principle, the Italian Court of Cassation analysed the worker’s ability to claim abusive use of fixed-term contracts by the employer due to their excessive and repeated use, even if the limitation period had expired. The Court started from the recent interpretation of EU law by the European Court of Justice (judgment 14 October 2020 in case no. C-681/18, relating to the parallel institution of temporary agency work), according to which the Member States must adopt measures to preserve the temporary nature of temporary agency work, to avoid circumvention of the directive on this type of work.
In the light of this principle, the judge is called to evaluate the effect that the recurrence of fixed-term contracts can have in circumventing the EU rules which establish limits on the duration and quantity of fixed-term contracts. The Court held that the historical existence of previous relationships can and must be taken into consideration to assess whether the reasons for resorting to fixed-term work are actually of a temporary nature and that this assessment remains valid even if the limitation period for the worker to challenge those contracts has expired.
In other words, according to the Italian Court of Cassation, the expiry of the limitation period prevents the worker from taking direct action with respect to the previous unchallenged contracts, but the judge can consider their existence as historical precedents that may be used to assess whether their repetition has been abusive and whether the maximum duration established by law (36 months) has been exceeded.
In the light of this judgment, the principle emerges according to which, and in relation to successive fixed-term contracts, an appeal directed only against the last contract of a series, when the party is time-barred from appealing previous contracts, does not exclude the fact that the judge must take into account, in assessing the lawfulness of the contract challenged within the limitation period, the factual information on the existence of previous fixed-term relationships, to verify whether the relationship, considered as a whole, can be considered actually temporary or whether there has been abusive repetition, to be ascertained according to the rulings in the ECJ judgment of 14 October 2020, case C-681/18.
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Dismissal for just cause of worker who gives personal badge to others to certify (false) attendance at the company is lawful.
The Italian Court of Cassation, by order no. 10239 of 18 April 2023, confirmed the decision taken by the Court of Appeal of Lecce which had held a dismissal for just cause of a worker who, while absent from work, had given his badge to a colleague to confirm the absent worker’s attendance in the workplace to be lawful. In the context of the assessments carried out by the Court of Appeal and then confirmed by the Court of Cassation, both the dismissed worker’s allegedly minor absence from work and the fact that no damage had been caused to the employer’s company were irrelevant for the purposes of assessing the lawfulness of the dismissal. Moreover, in the opinion of the Court of Cassation, the Court of Appeal of Lecce had correctly highlighted how the fact that the worker had already carried out similar fraudulent conduct on other occasions gave the episode, which was the subject of the dispute, particular gravity thus justifying the dismissal. In the context of their assessments, the Court of Cassation judges then confirmed the limits on challenging, within the appeal analysed by them, the activity [carried out by the trial judge] in interpreting that the conduct of the worker fell within the provisions of Article 2119 of the Italian Civil Code, for the purpose of identifying the just cause for dismissal, on the basis of which an appeal cannot put forward a reconstruction and assessment of the facts different from that underlying the contested decision.
The facts of the case and the outcome of the trial
The case originates from the dismissal for just cause, of which notice was given on 23 May 2017, of a worker who was accused of having given a colleague his personal badge so that he could falsely certify his attendance at the workplace.
The employee challenged the dismissal judicially, arguing that it was unlawful and seeking, primarily, reinstatement in the post previously occupied and, in the alternative, that the employer company be ordered to pay damages.
In both the summary phase of the so-called Fornero Procedure (Rito Fornero) and in the opposition phase under Article 1, paragraph 57, Italian Law no. 92/2012, the Court of Taranto rejected the worker’s complaint, confirming the lawfulness of the dismissal.
By judgment no. 290/2019, the Court of Appeal of Lecce rejected the appeal brought by the worker and confirmed the first instance judgment of the Court of Taranto. Specifically, the Court of Appeal of Lecce observed that, although it was not possible to ascertain to what extent the improper use of the badge had allowed the worker to falsely certify his attendance at the company, the assessment of the existence of the just cause for dismissal concerned specifically ‘the improper use of the attendance monitor’, which, according to a specific internal service directive, had necessarily to be carried out personally by the workers and not by complicit third parties ‘as was pointed out to the worker, thus making the duration of the absence from the workplace irrelevant’.
On the basis of those considerations, the Court of Appeal of Lecce had therefore considered the sanction of dismissal imposed as proportionate, since the conduct complained of was an abuse of trust punishable by dismissal under the national collective bargaining agreement applied to the employment relationship in question.
Continue reading the full version published at Modulo 24 Contenzioso Lavoro of Il Sole 24 Ore
Whistleblowers liable for similar actions
The legislation that protects an employee who reports unlawful conduct which he/she has become aware of due to his/her duties is ‘aimed at preventing unfavourable consequences for the fact in itself of having reported unlawful conduct, but certainly does not create exemptions with respect to the offences that that person had allegedly committed independently or in concert’. This was affirmed by the Court of Cassation with order No 9148 of 31 March 2023. The case originates from a disciplinary suspension imposed on a nurse working at a public sector hospital, who had worked for a private body for eight years without authorisation from her employer. In the judgment in second instance the Court of Appeal of Rome confirmed the ruling of the Court of first instance and rejected the appeal against the sanction under Article 54-bis of Italian Legislative Decree No 165/2001 – i.e. the protection envisaged in the event of reporting of offences of which the employee became aware due to the duties performed (the employee had, in fact, reported similar behaviour of other colleagues to the employer). The Court of Appeal noted the fact that the employee, having in turn conducted herself in the same way, certainly could not benefit from the protections invoked. The employee lodged an appeal against this decision before the Court of Cassation, in which the Health Authority filed a counter-appeal. In her sole ground of appeal, the appellant alleged breach and erroneous application of Italian Legislative Decree No 165 of 2001, Article 54-bis, on the basis that a whistleblower would only be liable when the report would constitute slander or defamation. The Court of Cassation – in confirming the assessment of the appeal judges – clarified that the function of the aforementioned Article 54-bis is to prevent the employee who makes a report from being sanctioned, dismissed or otherwise subjected to discriminatory measures for reasons connected, even indirectly, to the report.
The full version can be accessed at Italia Oggi.
By Order No 8375 of 23 March 2023, the Italian Court of Cassation confirmed that footage from video surveillance systems installed for security purposes may be used to prove an employee’s disciplinary breach.
The facts of the case
The case arose from a disciplinary sanction of suspension from duty and pay for ten days imposed on a vocational teacher for forcibly grabbing a student by the shirt and, after releasing his grip, causing him to fall to the ground. The teacher, moreover, ‘while the pupil […] communicated to his mother what had happened […]’ addressed the latter ‘in an ill-mannered way using decidedly heated tones’.
The event was filmed by means of the video surveillance system installed by the Authority – the educator’s employer – at the Authority’s premises, and the recordings used to make the disciplinary complaint. The teacher, having received the disciplinary measure, in requesting its annulment challenged, among other things, the use of the video surveillance system footage for disciplinary purposes.
In the proceedings on the merits, the Court of Appeal rejected the request to annul the sanction and, upholding the appeal lodged by the teacher, reformed the first instance judgment by redetermining the sanction as a fine of three hours.
The teacher appealed to the Italian Court of Cassation, which the Authority resisted with a counter-appeal.
The decision of the Italian Court of Cassation
The Italian Court of Cassation – in upholding the assessment of the judges of the Court of Appeal – affirmed the lawfulness of the use of video surveillance system footage for the purpose of making a complaint based on an employee’s disciplinary breach.
In the present case, the video surveillance system had been installed in compliance with the guarantees provided for by the applicable legislation:
• the cameras had been installed for safety at work requirements, also in the light of the fact – as noted by the Italian Court of Cassation – that they were directed towards spaces that were ‘also accessible to non-employee personnel and not intended to accommodate workstations’;
• a trade union agreement had been signed as provided for in Article 4 of the Workers’ Charter.
In addition to this, matters such as the proportionality of the penalty imposed in relation to the wrongful act committed, as well as the fact that the worker had been allowed to exercise his right of defence, had also been examined.
In the context of all these assessments, the use of the video surveillance system footage was therefore an additional element that was considered lawful.
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By Order No 8375 of 23 March 2023, the Italian Court of Cassation confirmed that footage from video surveillance systems installed for security purposes may be used to prove an employee’s disciplinary breach.
The facts of the case and the first and second instance proceedings
The case arose from a disciplinary sanction of suspension from duty and pay for ten days imposed on a vocational teacher for forcibly grabbing a student by the shirt and, after releasing his grip, causing him to fall to the ground.
The teacher, moreover, ‘while the pupil […] communicated to his mother what had happened […]’ addressed the latter ‘in an ill-mannered way using decidedly heated tones’.
The event was filmed by means of the video surveillance system installed by the Authority – the educator’s employer – at the Authority’s premises, and the recordings used to make the disciplinary complaint.
The teacher, having received the disciplinary measure, in requesting its annulment challenged, among other things, the use of the video surveillance system footage for disciplinary purposes.
In the proceedings on the merits, the Court of Appeal rejected the request to annul the sanction and, upholding the appeal lodged by the teacher, reformed the first instance judgment by redetermining the sanction as a fine of three hours.
The teacher appealed before the Italian Court of Cassation and the Authority filed a counter-appeal.
The decision of the Italian Supreme Court
The Italian Court of Cassation – in confirming the ruling on the merits – affirmed the lawfulness of the use of video surveillance system footage for the purpose of making a complaint based on an employee’s disciplinary breach.
Noting the lack of defects in (i) the explanation of the factual and legal reasons on which the decision on the merits was based or (ii) the explanation of the logical / legal path followed by the Court of Appeal, the Court of Cassation confirmed the correctness of the assessment by the second instance judges in assessing the video surveillance system footage on the basis of the ‘argument for the usability [of the footage], in conjunction with the other investigative elements considered’.
The full version can be accessed at MAG de Legalcommunity
