The Italian Court of Cassation, with order of 11 October 2022, No 29720, confirmed that ‘any equipment, ancillary or accessory which could actually constitute a protective barrier, however small or limited, with respect to any risk to the health and safety of the worker in compliance with Article 2087 of the Italian Civil Code’ falls within the definition of Personal Protective Equipment (PPE).
A Company – the employer – filed an appeal before the Italian Court of Cassation against a judgment of the Bari Court of Appeal. The Bari Court of Appeal judgment had confirmed the first instance decision, recognising the worker’s right to compensation for damages due to the Company’s failure to wash the clothing used by the worker to perform the work. In particular, according to the judges of first and second instance, the vest and the high visibility jacket, the waterproof jacket against the bad weather, the work trousers and the protective gloves should ‘all be considered personal protective equipment’.
Referring to numerous precedents, the Italian Court of Cassation judges reconfirmed that, due to the constitutional importance of the right to health as well as the principles of correctness and good faith as the foundations of the employment relationship, the provisions of Article 2087 of the Italian Civil Code – i.e. the employer’s obligation of take all appropriate measures, according to experience, technique and specific characteristics of the work, to prevent damage to the worker’s physical health and individuality – must be interpreted broadly.
From this it follows, as stated in the order, that the employer is required both to provide the necessary clothing to its workers and to prevent the onset and spread of infections by also arranging the related washing. This obligation, in fact, becomes indispensable for the effectiveness of the clothing, thus falling within the measures necessary to protect the physical health and ethics of workers under the aforementioned Article 2087 of the Italian Civil Code.
For these reasons, the Italian Court of Cassation rejected the appeal filed by the company, ordering the appellant to pay the costs.
The Italian Court of Cassation’s approach
The ruling in question – which is the most recent on the subject – confirms a by now consolidated Court of Cassation approach clarifying that the legal concept of PPE should not be limited to equipment specifically created and marketed for the protection of specific risks but must be interpreted broadly to include any equipment, ancillary or accessory that protects, even in a limited or in a minimal way, the worker from the risks to which he or she is exposed in performing his/her work (see, as stated in the order in question, Italian Court of Cassation No 16749 of 2019; No 17132 of 2019; No 17354 of 2019; Italian Court of Cassation No 5748 of 2020; Italian Court of Cassation No 17100 of 2021).
The Italian Court of Cassation, with judgment No 33134 of 10 November 2022, established that there is no unjustified absence if a worker delivers the medical certificate of illness after receiving the disciplinary complaint.
The facts of the case
Following an unjustified absence lasting seven days, a worker was dismissed for just cause. Both the Florence Tribunal and Court of Appeal held that the dismissal was unlawful because there was no basis for the dismissal. This is because, from the analysis of the facts of the case, it emerged that, on the date of giving notice of the dismissal, the medical certificate – which retroactively covered the entire period of absence subject to the disciplinary dispute – had been sent to the employer. The judges on the merits observed that two distinct provisions of the national collective bargaining agreement (Contratto Collettivo Nazionale del Lavoro – CCNL)applied to the employment relationship, namely unjustified absence and late or irregular justification, sanctioning the first with dismissal and the second with a fine but continuing the employment relationship. In view of this contractual framework, the dismissal for just cause imposed by the employer was therefore to be considered unlawful, with a consequent order against the employer to reinstate the worker and to pay compensation of damages commensurate with the months not worked, in addition to the payment of social security contributions.
The employer company filed an appeal to the Italian Court of Cassation against the decision of the Italian Court of Appeal.
The judgment of the Italian Court of Cassation
The Italian Court of Cassation, in rejecting the appeal filed by the company, confirmed the unlawfulness of the worker’s dismissal. Starting from an analysis of the disciplinary regulation contained in the Textile and Clothing CCNL applied to the employment relationship, the Court highlighted that, from a literal reading of the regulations, it appeared that the parties to the CCNL intended the sanction of dismissal to apply only in the case of an unjustified absence and not to late justification of the absence.
It follows that the delivery of the medical certificate after the start of the disciplinary action means that there is no unjustified absence and only late justification of the absence, with the consequent unlawfulness of the sanction of dismissal.
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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.
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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.
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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.
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