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.
The Supreme Court of Italy, in its ruling 31866/2024, clarified the limits of dismissal for just cause concerning conduct that occurs outside the workplace.
The case concerns an employee, a bus driver, dismissed for just cause after being sentenced to two years and six months of imprisonment for charges including sexual assault, domestic abuse, and physical violence.
Following the appeal of the dismissal, in which the employee argued that his conduct was unrelated to his work activities, both the Court of First Instance and the Court of Appeal of Italy upheld the legitimacy of the dismissal for just cause.
The Italian Court of Appeal ruled that the employee’s behaviour, which was committed over a long period of time and involved several serious offences (including “sexual assault against his wife, mistreatment with humiliation and domineering behaviour, considered to be habitual, as well as physical violence”), justified the dismissal for just cause.
This was also due to the concrete risk that the employee, a bus driver, could lose self-control and fail to fulfil his essential duties of respect and care towards service users or third parties, given that his responsibilities included driving vehicles in traffic and constant interaction with the public.
The Court of Appeal of Italy, in determining the legitimacy of the dismissal, also took into account the employer’s duty of care, both towards third parties concerning the suitability of staff interacting with the public (under Article 2043 of the Civil Code) and towards its own employees (under Article 2087 of the Civil Code). Additionally, the Court took into account the employee’s previous disciplinary issues, including acts of insubordination and loss of control.
The employee challenged the decision of the Court of Appeal and appealed to the Italian Supreme Court on several grounds.
In upholding the judgment of the Italian Court of Appeal, the Supreme Court held that:
The Supreme Court also stated that the Italian Court of Appeal did not establish an automatic link between the criminal conviction and the dismissal for just cause, but correctly recognized the negative impact of the criminal conduct on the proper performance of the employee’s duties, which are designed to protect the users of public services. Furthermore, the Court of Appeal correctly took into account the appellant’s previous disciplinary record, which indicates insubordination and a loss of control.
Other related insights:
“Violates the employer’s directives (even if implicit, but clear) the employee who, although in a hierarchically superior position to the holder of the access credentials to a company’s IT system, has them revealed in order to gain access without specific authorization: the protection of data through access credentials alone is sufficient to make such directives clear”. This has been established by the Supreme Court of Italy, Criminal Section V, no. 40295/2024.
An employee of a hotel in Chianciano Terme (Italy) had requested from another employee, directly subordinate to him, the access keys to the company’s IT system for the storage and promotional purposes of the customer database, which included about 90,000 individual records, accessing it for purposes unrelated to the mandate received. In the first two levels of judgment, was established the commission of the crime of «Unauthorized access to an IT or telematic system», under Article 615-ter, paragraph 1, of the Italian Penal Code.
The employee appealed to the Italian Supreme Court, claiming that it was not an abuse access, both because he had the power «in his capacity as director and superior manager of the employee» from whom he had requested for the credentials, «also for the purpose of supervising her work» and because until shortly before, he had a personal and direct access to those data.
The Supreme Court of Italy ruled that the offence of unauthorized access to IT systems (under Article 615-ter, paragraph 1, of the Italian Penal Code) also occurs in the case of a hierarchical superior using the access credentials provided by the employee.
The judges of the Italian Supreme Court did not find convincing the appellant’s argument that relied on his power to access any company location in order to carry out checks on those hierarchically subordinate to him. In the case of an IT system protected by credentials, the Court pointed out that «each authorized person has his/her own ‘key’ (i.e., the access credentials)». «This is because it is data which, quite simply, the owner considers should be protected, both by limiting access to those who are provided with such credentials and, at the same time, by ensuring that a digital trace is left of the individual access and of who carries them out ».
It is therefore incorrect to hold that the defendant «solely by virtue of his duties, automatically had the power to access data that, on the other hand, according to the employer’s discretionary assessment, were to remain available only to certain employees (even if subordinate to the appellant) »
Moreover, by doing so, the appellant made it «falsely appear that the access had been made by the employee who, imprudently, had revealed her credentials to him».
Other related insights:
Published in the Italian Official Gazette on December 28, 2024, the so-called “Collegato Lavoro” – which contains provisions on labor matters introduced by the Italian Government and connected to the Budget Law – will officially come into force on January 12, 2025.
Among the main changes introduced:
The Italian Court of Cassation, in the recent sentence no. 26765 dated 15 October 2024, rejected the appeal of a pharmaceutical sales representative who had been dismissed after being caught by his employer lying about the visits made to certain medical doctors as reported in his monthly report.
The case originates from an appeal filed by a pharmaceutical representative against the dismissal for just cause imposed by his employer. The employee was terminated with immediate effect, pursuant to Article 2119 of the Italian Civil Code, for falsifying the monthly report regarding visits made to medical doctors, reporting a significantly higher number of visits than those actually conducted.
The pharmaceutical company had hired a private investigator to verify the accuracy of the information provided by the employee; the investigations conducted confirmed that the employee had lied, reporting activities that were not actually carried out. Specifically, the investigations revealed that, for three consecutive days, the representative had visited far fewer medical doctors than indicated in the monthly report submitted to the employer and had falsely claimed to have visited locations he had not actually been to. Even the visit times reported by the employee were found to be false, as it was established that during those times, he was engaged in personal and recreational activities.
Both the Court of First Instance and the Court of Appeal of Catanzaro upheld the dismissal, deeming the trust relationship between the employee and the company to be irreparably damaged. In particular, the judges considered the employee’s conduct “serious,” especially given that the monthly report submitted by the employee was the employer’s only means to monitor his activities as a pharmaceutical representative, as he enjoyed considerable freedom of movement and self-organization.
Moreover, it was noted that such documentation was also necessary for the company to fulfill its communication obligations to the Italian regulatory authority, AIFA. Consequently, had also found itself, unintentionally, reporting incorrect data to AIFA on the number of medical doctors visited and the average number of interviews conducted by its representatives.
The employee, considering the dismissal disproportionate, appealed the Court of Appeal’s judgment, arguing that his conduct could not justify the dismissal, as it was, at most, a mere “alteration of a timesheet or badge” which, under the NBCA for the Chemical Pharmaceutical sector, would warrant only a disciplinary sanction.
However, the Court of Cassation upheld the Court of Appeal’s decision, asserting that the employee’s conduct did not amount to a mere badge alteration but rather a more serious falsification of an information report on actual work activity performed at specific doctors’ offices and locations, punishable by immediate dismissal under the NBCA.
In conclusion, the Court rejected the employee’s appeal and ordered him to pay the legal costs.
