According to Article 29, paragraph 2, of Legislative Decree 276/2003 (known as the “Legge Biagi”), in the context of service contracts (“contratti di appalto” in Italian parlance), the principal company or employer is jointly and severally liable with the contractor, as well as with any subcontractors, within two years after the termination of the contract, for the payment of amounts owed to workers for work performed during the contract period, including:
However, joint and several liability does not apply to civil sanctions, for which only the defaulting party is responsible.
Consequently, in the context of service contracts, although the obligation to pay salaries and social security contributions falls on the contractor — the company directly hiring the workers and managing the service contract — Italian law assigns the principal a “guarantee” role regarding these obligations, introducing a genuine joint obligation on the principal.
In concrete, this guarantee allows workers to act against either the contractor or the principal to obtain payment of unpaid salaries owed for work performed under the service contract.
Moreover, the principal’s joint and several liability also applies to compensation and social security obligations of self-employment workers, pursuant to Article 9 of Legislative Decree 76/2013, converted with amendments into Law No. 99 of August 9, 2013.
The principal’s joint and several liability is subject to a two-year limitation period, starting from the termination of the contract. However, this two-year period applies exclusively to claims made by workers, while, according to case law, it does not apply to recovery actions initiated by social security or insurance institutions such as INPS (the Italian National Social Insurance Agency) or INAIL (the Italian National Institute for Insurance against Accidents at Work), which remain subject to a five-year statutory limitation period.
The principal, who, due to joint and several liability, has paid the workers the salaries or contributions owed, may seek recovery from the contractor under the general rules provided by the Civil Code. However, the principal can no longer invoke the benefit of prior enforcement against the contractor, as was allowed until 2017.
Finally, the Court of Cassation recently stated that joint and several liability between the principal and the contractor is not limited to contracts formally classified as “service contracts”. It applies whenever workers are employed in a mechanism of outsourcingwhere “detachment between the ownership of the employment relationship and the utilization of the labor activity was established, which could justify applying the guarantee provided by Article 29” (see Court of Cassation, Labor Section, order no. 26881 of October 16, 2024). Based on this principle, joint liability has been deemed applicable, for example, in cases of “department delegation contracts” (“affidamento di reparto” in Italian parlance) or supply contracts.
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The Supreme Court, by its decision no. 24473 of 12 October 2024, ruled that individual abstentions
from work could not be qualified as a strike. The decision came after the rejection of the appeal
filed by some employees against a disciplinary sanction imposed by a highway company following
two days of unjustified absence. The Court of Appeal had upheld the lawfulness of the sanction on
the grounds that the workers’ absence had not been supported by a trade union declaration, which
is a necessary condition for the abstention to be classified as a strike. In particular, the Court of
First Instance had pointed out that in the absence of a formal notification from a trade union
announcing the starting time of the strike and in the absence of collective deliberation, the
workers’ behaviour had to be considered as an individual decision.
The workers challenged the decision, arguing that the right to strike could be exercised without a
trade union declaration. However, the Supreme Court stated that although the right to strike is an
individual right, it is essential that it is collectively agreed in the event of a conflict situation
involving the protection of a collective interest. Consequently, the Supreme Court rejected the
appeal and declared the sanction lawlful.
With Order No. 27610 of October 24, 2024, the Italian Supreme Court ruled that a dismissal for cause was lawful in the case of an employee accused of repeatedly abusing work breaks by spending excessive time at a bar with colleagues.
The legal proceedings originated from the dismissal of an employee for cause following repeated unexcused absences. An investigative agency documented three instances where the employee spent over 30 minutes engaging in conversations with colleagues near a bar during work breaks.
Initially, the Court of First Instance acknowledged the facts but deemed the dismissal disproportionate, awarding compensatory damages instead. However, the Court of Appeal in Catanzaro reversed this decision, affirming the dismissal’s legitimacy. The appellate court highlighted that the employee’s extended absences were not mere physiological necessities but constituted improper use of work time.
The court also emphasized the heightened severity of these breaches due to the employee’s senior role, which involved significant responsibilities and coordination of workers in a critical sector—waste collection. These actions, the court noted, could undermine public perception and trust in the service. Furthermore, it ruled that the behavior had potential criminal implications or could deceive the employer, harming both the company’s assets and its external reputation.
The Supreme Court upheld the employer’s right to protect its reputation, particularly in public-facing sectors like waste management, where public trust directly affects service effectiveness. It reaffirmed the importance of the company’s image as a key asset.
The court also clarified the limits of using private investigators, prohibiting indiscriminate monitoring of job performance. However, it acknowledged the employer’s right to engage investigators when there is suspicion or evidence of unlawful activities by an employee.
Finally, the court broadened the concept of “company assets” to include not only tangible assets but also the company’s external image.
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The Court of Cassation, in its order no. 18296 of 4 July 2024, ruled that an employee who adopts stubborn attitudes with respect to the company’s business irreparably damages the trust relationship with the employer and may therefore be subject to dismissal.
The present case specifically involved an employee of an environmental services company, who worked as a driver in charge of transporting waste to treatment centers using large vehicles. The employee had refused to carry out his duties, returning to the company with the vehicle still loaded. This behaviour exposed the employer to potential administrative sanctions and environmental violations, as well as complaints from the municipality, the sole client.
The employee had refused to unload the waste, initially referring to reasons related to delays in unloading the waste and later health reasons.
Despite repeated requests from his superior to proceed with unloading or to wait for a change of driver, the worker returned to the company without having completed the job.
The worker argued that, based on the National Collective Bargaining Agreement for employees of environmental services and the company’s disciplinary Code, insubordination could only be punished with conservative sanctions, such as suspension, limiting dismissal for more serious cases, such as those involving “de facto behaviour”.
The Court of Appeal, reforming the first-instance judgment, determined that the worker’s actions were not simply insubordination but amounted to a serious breach of duty, further complicated by administrative and legal consequences for the company. Such behavior constituted “just cause” for dismissal.
The employee subsequently appealed the judgment to the Supreme Court of Cassation.
The Court of Cassation stated that in the context of disciplinary dismissal, the notion of insubordination cannot be limited to the refusal to comply with the directives of superiors but includes any behaviour that undermines the execution and proper fulfillment of those directives within the framework of the company’s organization (Cass. No. 13411/2020).
In this case, the Supreme Court considered the employee’s behaviour to be more serious than mere insubordination.
The Court concluded that the employee’s intentional refusal to comply, together with his decision not to wait for the driver change and to return to the company with the load of waste – thereby obstructing waste disposal operations and exposing the employer to possible administrative sanctions – constituted a serious breach of trust and contractual obligations, justifying dismissal for just cause.
In conclusion, the Supreme Court rejected the employee’s appeal, considering the company’s dismissal to be lawful.
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.”
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