With order No 32020/2022, published on 28 October 2022, the Italian Court of Cassation, IV civil section, expressed its opinion on the distinctive features that differentiate straining from mobbing.
The proceedings arise from the appeal presented before the Court of Paola by a municipal employee who complained of having been subjected to malicious conduct by the employing authority and of having been demoted through removal of her position as manager, which was then assigned to another employee, with a consequent application for an order against the employer for compensation for the pecuniary and non-pecuniary damage suffered.
The application was rejected both in the first and in the second instance proceedings, since, according to the local court, the removal of the employee’s position was a result of the reorganisation of the authority and its managers and, in any case, the applicant had neither alleged nor proved the existence of malicious intent by the employer against her.
The employee therefore appealed the judgment to the Italian Court of Cassation.
In particular, according to the employee, the local court, while denying the presence of mobbing, should in any case have recognised conduct which substantially deprived her of her duties. This would then have placed the consequent burden on the appeal judge, once the presence of malicious intent was excluded, to evaluate whether, on the basis of the evidence deduced, other circumstances made it possible to presume the presence of an unknown minor damage, such as that caused by straining.
In rejecting the employee’s appeal, the Italian Court of Cassation, with the order in question, took the opportunity of summarising the Court of Cassation case law on mobbing and straining.
As far as straining is concerned, the Court pointed out that, under Article 2087 of the Italian Civil Code, the employer is required to refrain from initiatives that may harm the fundamental rights of the employee through the adoption of ‘stressful’ working conditions (so-called straining).
Therefore, the judge on the merits, even if he or she decides that there is not sufficient malicious intent to unify the episodes so as to constitute mobbing, is required to evaluate whether, from the evidence deduced – due to its characteristics, seriousness, personal or professional frustration, other circumstances of the actual case – can be presumed to be traced back to the existence of this unknown minor damage (Italian Court of Cassation, Section L, No 3291 of 19 February 2016).
Furthermore, according to the Italian Court of Cassation, the Court of Cassation case law accepts that the straining phenomenon, which constitutes an attenuated form of mobbing, but in the absence of continued harassment, can only be advanced on appeal if, in the first instance application, the same facts have been alleged and identified as mobbing (Italian Court of Cassation, Section L, No 18164 of 10 July 2018).
Therefore, according to the order in question, in the abstract, the local court could have made a finding as to the occurrence of straining instead of mobbing. In the present case, however, the Catanzaro Court of Appeal, regardless of any consideration regarding the malicious intent, also excluded the unlawfulness of the conduct which, according to the employee’s submissions, would have constituted the objective element of the contested offence.
Finally, the order in question underlines how, according to Court of Cassation case law, the so-called strainingexists when the employer adopts initiatives that may harm the employee’s fundamental rights through ‘stressful’ working conditions and not where the difficult situation is caused and exacerbated by the change of job position as a result of the reorganisation and restructuring processes that have involved the entire company (Italian Court of Cassation, Section L, No 2676 of 4 February 2021).
In the light of the above considerations, the Italian Court of Cassation rejected the appeal filed by the employee.
Other related insights:
In its order no. 25287 of 24 August 2022, the Court of Cassation ruled on monitoring carried out by the employer and confirmed the legal principles within which the employer may use a detective agency.
This case involved a worker dismissed because he was accused of leaving the workplace repeatedly during working hours, for activities unrelated to his job (the contract allowed a certain workplace and time flexibility). This came to light as part of a broader investigation concerning the violation of leave under Art. 33 of Law no. 104/92 by a colleague which involved the appellant who had been reprimanded several times.
While the investigation on the other employee was lawful, the surveillance carried out on the employee in question was outside the detective agency remit.
According to the Supreme Court, the external monitoring must be limited to the employee illicit acts that are not attributable exclusively to the breach of an employment contractual obligation. In other words, to operate legally, detective agencies must not monitor work performance. Under the law, work performance monitoring must be carried out directly by the employer and its employees using audio-visual equipment and other monitoring tools.
Please note that internal work performance monitoring must follow legal limits.
The key provision is Art. 4 of the Workers’ Statute (Law 300/1970). Under this provision, information collected through monitoring can be used for employment relationship purposes, including disciplinary. However, certain criteria and “guarantee procedures” must be followed for them to be lawful.
Adequate information must be provided to the worker on the methods used to carry out monitoring. If audio-visual equipment or other monitoring tools are used, information must be provided on tools use and monitoring methods.
Under the last paragraph of Article 4, for the collected information to be usable for employment relationship purposes, personal data protection legislation, i.e., Regulation (EU) 2016/679 and Legislative Decree 101/2018, must be followed.
This allows the company, employer and data controller under the data protection legislation, to use the information collected and avoid incurring a heavy GDPR penalty for unlawful personal data processing.
Other related insights:
In its order no. 21453 of 6 July 2022, the Court of Cassation stated that if there is a company transfer, a worker reinstated after the employment contract term’s ineffectiveness was confirmed, is treated as transferred ex lege to the transferee.
The case concerns the effectiveness of a business transfer for a worker hired under a fixed-term contract by the transferor and re-employed by the transferee afterwards.
The Court of First Instance and the Court of Appeal of Milan held that the worker should be considered an integral part of the company at the time of the transfer and automatically transferred to the transferee. This is due to the reinstatement effects of the ruling confirming the ineffectiveness of the employment contract term.
The trial Court stated that the employment relationship was converted to open-ended following a ruling confirming the term ineffectiveness making the relationship existing “de iure even if not de facto,” even if at the time of the company transfer the employment relationship did not exist due to the contract term expiry.
The employer company appealed against the decision of the Court of Appeal of Milan.
The Court of Cassation rejected the appeal brought by the transferee company and stated that the ruling confirmed the ineffectiveness of the employment contract’s fixed term and ordered the re-establishment of the illegally terminated relationship which was declaratory and not constitutive.
The conversion into an open-ended employment relationship has an “ex tunc” effect i.e., from the date of the fixed-term contract unlawful termination.
Once the ineffectiveness of the employment contract term has been confirmed, the employment relationship becomes open-ended ab origine with the consequent automatic continuation of the employment relationship under the transferee under Art. 2112 of the Italian Civil Code.
Other related insights:
Contracting a viral infection at work is treated as an illness covered by INAIL and proof of the aetiological link can be provided in court by rebuttable presumptions
In its Order no. 29435 of 10 October 2022, the Supreme Court overturned the Palermo Court of Appeal’s ruling and provided a different interpretation of the evidentiary framework in the disputed case.
The case submitted to the Supreme Court originates from an appeal brought before the Court of Agrigento in first instance and the Court of Appeal of Palermo in second instance by a professional nurse employed by a nursing home, to obtain INAIL coverage which is an allowance in annuity or lump sum under Presidential Decree no. 1124/1965. This was based on an alleged hepatitis C infection contracted during work, assuming that this was due to plausible and prolonged exposure to the relevant pathogens.
The local Court confirmed the Court’s first instance ruling, and initially rejected the worker’s request. Based on the possible multi-factorial origin of the illness, the Court considered that the proof of the work-related cause and harmfulness of the working environment borne by the worker had not been achieved. The Court stated that the assessment should not involve “the causal link of the occupational accident’s pathological effects, but the precise identification of the fact giving rise to the illness.”
The Trial Court added that the claimant had no memory of specific events occurring during work, such as accidental needle punctures. This is because the routine medication and treatment of liver-diseased patients was not sufficient to give entitlement to the protections requested. This evidence cannot benefit the party who made such declarations, and it was nullified by findings made in another case concerning a previous infection with hepatitis B virus, and which required “strict proof of the infectious event during work.”
The Court added that the “report of an examination by the hospital medical committee” established during the proceedings for compensation under Law no. 210/1992, was not relevant because it “expressed an opinion (on the disease occupational origin and exposure to risk) without disclosing the factual elements on which it was based.”
In its order, the Supreme Court overturned the Palermo Court of Appeal’s ruling, and referred to a long-standing and never contradicted case law by which “in compulsory insurance against accidents at work, the action of microbial or viral factors which, by penetrating human organism, alter the anatomo-physiological balance, is treated as an accident. This effect, even if manifested later, must relate to the work performance, even in the absence of a specific injury underlying the infection” and “the proof can be provided in court by rebuttable presumptions” (Court of Cassation labour section ruling no. 7306/2000, Court of Cassation, labour section ruling no. 20941/2004; Court of Cassation, labour section ruling no. 6899/2004).
In this case, the Court of Appeal’s reasoning was not always coherent and linear, and referred to the need for a “precise identification of the fact giving rise to the illness.” This strayed from the above case law, wrongly concluding that a “strict proof of the infectious event during work” should have been provided based on the previous Hepatitis B incident.
Continue reading the full version published on Guida al Lavoro of Il Sole 24 Ore.
The Court’s ruling 1 on 2 January 2020, stated that the requirements of art. 19 of the Workers’ Statute to establish union representatives, with the rights referred to in section 3, should not be confused with the principles stated in art. 28 of the Statute (unfair labour practice repression). Art. 19 requires signing of national collective agreements (or provincial or company collective agreements, but applied in the company) or union participation in negotiation of these agreements, as workers’ representatives. Art. 28 only requires the association to be national. The procedure is for cases where protection of the union’s collective interest to freely exercise its prerogatives is challenged. This interest is distinct and autonomous from individual workers’. The Court of Cassation declared the employer’s transfer of 80% of workers registered or affiliated to a trade union from one plant to another to be an unfair labour practice, even if the company’s underlying needs were legitimate. The employer’s conduct was considered to be harmful to the collective interests of the union. In the Court’s view, the statistical element, which reveals a situation of disadvantage for the union, gives rise to a presumption of discrimination. The employer must provide proof to the contrary.
