With judgment no. 4350 of 19 February 2024, the Supreme Court of Cassation addressed the issue of conversion of the part-time employment contract into full-time in circumstances where the worker is constantly working extra hours and overtime. The employee brought a legal case to obtain the ascertainment of the conversion of the employment relationship to full-time in view of the company’s prolonged requests to work extra hours and overtime. The Judgment, in confirming the ruling rendered by the Court of Appeal of Cagliari, stated that if, in a part-time relationship, the employee works extra hours and overtime on a regular and continuous basis, despite the initial different manifestation of will of the parties, the original contractual provisions are novated and the part-time employment relationship is converted, due to conclusive facts, into a full-time relationship. Accordingly, the rules, including with regard to sanctions, envisaged for the part-time contract will no longer apply to the relationship, as that conversion operates not due to a legal source but by mutual will of the parties, which thus become the recipients of the rules envisaged for the full-time contract.
In its recent Order no. 6782 of 14 March 2024, the Italian Court of Cassation affirmed the following principle of law: “in the case of a permanent employment relationship, the employer’s waiver of the notice period, in the face of the worker’s resignation, does not give rise to the latter’s right to obtain compensation in lieu of notice because of the mandatory nature of notice”.
An employee resigned and her employer agreed to exempt her from working during her notice period, without paying her the relevant compensation in lieu of notice.
The resigning worker applied to the court for payment of the compensation in lieu of notice.
The Court of Pisa upheld the worker’s application and, on appeal, the ruling was also confirmed by the Florence Court of Appeal.
Both lower courts based their reasoning on the assumption that the employer, despite having exempted the appellant from working during her notice period, was nevertheless obliged to pay the equivalent of the amount of the salary that would have been due to the applicant for the notice period.
The company appealed against the decision of the Court of Appeal to the Italian Court of Cassation.
The Italian Court of Cassation judges, reversing the first instance ruling, held that in the context of a permanent employment relationship, the employer’s waiver of the notice period in the face of the employee’s resignation “does not give rise to the latter’s right to obtain compensation in lieu of notice because of the mandatory nature of notice”.
The judges therefore emphasised that notice is mandatory and, therefore, if one of the parties exercises the right to withdraw with immediate effect, the relationship also terminates immediately, and the only obligation that arises is that of the withdrawing party to pay the compensation in lieu of notice.
According to the Italian Court of Cassation judges, however, the other party can waive the notice without paying anything to the other party, who cannot claim any right to the continuation of the employment relationship until the notice ends.
On this basis, the Italian Court of Cassation upheld the appeal brought by the company, ruling that the resigning worker was not entitled to compensation in lieu of notice.
Other related insights:
By Order no. 1476 of 15 January 2024, the Italian Court of Cassation has once again ruled on the seriousness of the facts alleged against an employee as the reason underlying the dismissal for just cause under Article 2119 of the Italian Civil Code.
At the end of the three instances of proceedings, the Italian Court of Cassation rejected the appeal brought by the employee, confirming the previous rulings.
The case originates from an employer’s dismissal of an employee hired as a cook for having unlawfully and repeatedly stolen foodstuffs owned by the employer. In the context of the disciplinary proceedings, the worker had requested the postponement of the meeting scheduled for the hearing for health reasons. Specifically, the worker had produced medical certificates attesting that he was suffering from reactive stress anxiety.
The employee challenged the dismissal before the Court of Santa Maria Capua Vetere which rejected the application brought by the worker under Italian Law no. 92/2012 (so-called ‘Fornero Law’).
The Court of Appeal of Naples, at second instance, noted: (i) that there had been no breach of the right of defence as the medical certificate produced did not evidence a legitimate impediment to the hearing going ahead and, therefore, the request for postponement was merely to delay matters; (ii) that the investigative material acquired in the proceedings had confirmed the accusation made in the disciplinary proceedings, i.e. the repeated and unauthorised misappropriation of cooked food, as well as the worker’s failure to comply with the obligations of trust, loyalty and fairness; (iii) that dismissal was a proportional sanction due to the unlawfulness of the actions and the conduct carried out (which was also a criminal offence).
On these bases, the Court of Appeal judges rejected the worker’s claims.
The worker appealed to the Italian Court of Cassation on the basis of breach of the provisions of Article 7 of Italian Law no. 300/1970 for disciplinary procedures (so-called ‘Workers’ Charter’) and also alleged errors in the assessment of the evidence concerning the seriousness of the conduct and the lack of proportionality of the sanction.
The Court, in this appeal, reiterated that in cases of disciplinary dismissal, the worker has the right, if he or she so requests, to be heard by the employer, which may be postponed where there are proven and valid reasons that could jeopardise the effective and correct exercise of the same.
In the present case, in the opinion of the Italian Court of Cassation, the conduct complained of (theft of food), although not so serious as to cause significant financial damage and prejudice, constituted a justified reason for dismissal because of its disregard for social values and “conflicted with the standards and values of the legal system existing in the social context […] although there may have been apparent tolerance on the part of the employer”.
The Italian Court of Cassation, following the assessments carried out on the seriousness of the conduct, then concluded that the modest financial value of the offence “should not refer to the minor nature of the financial damage suffered by the employer, since it is necessary to evaluate the employee’s conduct in terms of the indications it gives with respect to his future conduct, as well as its capacity to cast doubt on the integrity of future performance and to affect the essential element of trust, underlying the employment relationship” (Italian Court of Cassation no. 11806/1997; Italian Court of Cassation no. 19684/2014).
With its order of 4 January 2024, the Court of Ravenna referred to the European Court of Justice the judgment of the Italian legislation on the calculation of absences from work caused by disabling diseases in the protected period (periodo di comporto).
The question posed to the European Court of Justice can be summarised as follows: can the 180-day protected period provided for by the Confcommercio National Collective Bargaining Agreement (Contratto Collettivo Nazionale di Lavoro, ‘CCNL’) (which applies without distinction to both disabled and non-disabled persons) be regarded as a reasonable accommodation that is sufficient for avoiding indirect discrimination against disabled workers?
The order is based on Directive 2000/78/EC, relating to equal treatment in employment and occupation of disabled workers, implemented in Italy by Italian Legislative Decree no. 216/2013.
On the basis of this Directive, a line of case-law has developed at Community level and, subsequently, at national level, which has held that the indiscriminate application of the same period of protection to disabled workers and non-disabled workers amounts to indirect discrimination. This is because it results in unequal treatment to the disadvantage of the disabled person who, due to the vulnerability inherent in the disability, is placed at a particular disadvantage compared to other workers, given the risk of greater possibility of accumulating days of absence and thus more easily reaching the limits of the protected period.
According to this line of case-law, the dismissal of a disabled person who, because of that disability, exceeds the protected period, must be declared null and void, as it is discriminatory.
The referring judge, after citing the European Court of Justice case on which the national case law in the lower courts and the Court of Cassation is based, raised doubts on the need to prescribe a specific duration of the protected period for disabled people, considering that the Italian legislation on illness already provides significant protection to the disabled person. The judge also expressed doubts about the applicability of mechanisms such as the employer’s deduction of periods of absence due to disability from the protected period.
Among the reasons preventing the introduction of differentiated protection, the Court of Ravenna noted that it would be impossible for the employer to distinguish absences caused by common illness from those due to disabling diseases, given that privacy regulations do not oblige the disabled person to disclose his or her state of health.
For the reasons summarised above, the referring court therefore asked the European Court of Justice to rule on the following questions:
(1) Does Directive 2000/78/EC preclude national legislation which does not provide for different rules between workers who can be classified as disabled and workers who cannot?
(2) If the national legislation were to be regarded in the abstract as constituting indirect discrimination, is the legislation itself nevertheless objectively justified by a legitimate aim and are the means of achieving that aim appropriate and necessary?
(3) Can the provision of unpaid leave, at the worker’s request, amount to suitable and sufficient reasonable accommodation for avoiding discrimination?
(4) Can an accommodation consisting of the employer’s duty to grant a further period fully paid by it, without obtaining consideration for work, be regarded as reasonable?
(5) For the purposes of assessing the discriminatory conduct of the employer, can (for the purposes of establishing the lawfulness or otherwise of the dismissal) the fact that even a possible further period of stability in the relationship paid for by the employer would not have enabled the disabled person to return to work, given his or her continuing illness, be taken into account?
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Employment relationship – Dismissal for just cause – Unlawfulness – Existence
The existence of wilful and negligent misconduct to the detriment of the employer company requires that the damage be a foreseeable consequence of the employee’s conduct. In light of this principle, the dismissal of an employee who, having been authorised to leave the workplace during working hours, stopped on the way to the market for a few minutes in the company car, was held to be unlawful. At that time, he was photographed and the photo was published on the social media site Facebook, gathering the indignation of several subscribers. Italian Court of Cassation, Employment Division, 6 December 2023, no. 34107. The Court of Cassation, Employment Division, with judgment no. 34107 of 6 December 2023 ruled that the dismissal of an employee who, having been authorised to go home in the company car to change his wet clothes, stops on the way to go shopping at the market is unlawful. In the context of the evaluations carried out by the local court and confirmed by the Court of Cassation, the filming and subsequent publication of the company car by an extraneous third party was irrelevant for the purposes of assessing the lawfulness of the dismissal. This triggered the indignation of social media subscribers. In fact, it had emerged in the course of the proceedings that the employee’s conduct, not constituting conduct committed wilfully or negligently to the detriment of the company, was to be classified as unauthorised absence from the workplace for the sole period of the stop at the market. The Court concluded that such a case, also in the light of the provisions of the collective bargaining agreement applicable in that instance, should have been sanctioned with a precautionary measure.
Read the full version in Modulo Contenzioso 24 de Il Sole 24 Ore.
