Dismissal for just cause of worker who gives personal badge to others to certify (false) attendance at the company is lawful.
The Italian Court of Cassation, by order no. 10239 of 18 April 2023, confirmed the decision taken by the Court of Appeal of Lecce which had held a dismissal for just cause of a worker who, while absent from work, had given his badge to a colleague to confirm the absent worker’s attendance in the workplace to be lawful. In the context of the assessments carried out by the Court of Appeal and then confirmed by the Court of Cassation, both the dismissed worker’s allegedly minor absence from work and the fact that no damage had been caused to the employer’s company were irrelevant for the purposes of assessing the lawfulness of the dismissal. Moreover, in the opinion of the Court of Cassation, the Court of Appeal of Lecce had correctly highlighted how the fact that the worker had already carried out similar fraudulent conduct on other occasions gave the episode, which was the subject of the dispute, particular gravity thus justifying the dismissal. In the context of their assessments, the Court of Cassation judges then confirmed the limits on challenging, within the appeal analysed by them, the activity [carried out by the trial judge] in interpreting that the conduct of the worker fell within the provisions of Article 2119 of the Italian Civil Code, for the purpose of identifying the just cause for dismissal, on the basis of which an appeal cannot put forward a reconstruction and assessment of the facts different from that underlying the contested decision.
The facts of the case and the outcome of the trial
The case originates from the dismissal for just cause, of which notice was given on 23 May 2017, of a worker who was accused of having given a colleague his personal badge so that he could falsely certify his attendance at the workplace.
The employee challenged the dismissal judicially, arguing that it was unlawful and seeking, primarily, reinstatement in the post previously occupied and, in the alternative, that the employer company be ordered to pay damages.
In both the summary phase of the so-called Fornero Procedure (Rito Fornero) and in the opposition phase under Article 1, paragraph 57, Italian Law no. 92/2012, the Court of Taranto rejected the worker’s complaint, confirming the lawfulness of the dismissal.
By judgment no. 290/2019, the Court of Appeal of Lecce rejected the appeal brought by the worker and confirmed the first instance judgment of the Court of Taranto. Specifically, the Court of Appeal of Lecce observed that, although it was not possible to ascertain to what extent the improper use of the badge had allowed the worker to falsely certify his attendance at the company, the assessment of the existence of the just cause for dismissal concerned specifically ‘the improper use of the attendance monitor’, which, according to a specific internal service directive, had necessarily to be carried out personally by the workers and not by complicit third parties ‘as was pointed out to the worker, thus making the duration of the absence from the workplace irrelevant’.
On the basis of those considerations, the Court of Appeal of Lecce had therefore considered the sanction of dismissal imposed as proportionate, since the conduct complained of was an abuse of trust punishable by dismissal under the national collective bargaining agreement applied to the employment relationship in question.
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With order No 12244 of 9 May 2023, the Italian Supreme Court of Cassation confirmed that if an employee refuses to go from full-time to part-time, he/she may be lawfully dismissed if the dismissal is not based on the employee’s refusal but is because the employer is unable to use the employee’s full-time services.
The facts of the case
Following the sale of a company branch (consisting of the supermarket at which the employee was employed) the three shareholders in the transferee company had decided to work at the shop and, therefore, the workforce was oversized. To deal with the situation, the three full-time employees, including the employee, were asked about their willingness to reduce working hours.
The employee refused to move from full-time to part-time and, consequently, the Company, as it was unable to use the employee’s full-time services, dismissed the employee for justified objective reasons.
The employee challenged her dismissal, alleging, primarily, that the dismissal was retaliatory and, in the alternative, that it was unlawful.
The Court declared the dismissal unlawful, but not retaliatory and ordered the Company to reinstate the applicant or to pay her compensation equal to five months’ total actual salary under Article 8, Italian Law No 604/66.
In the second stage of the same proceedings at first instance, the Court rejected both the employee’s main claim seeking a declaration of nullity of the dismissal, and the Company’s ancillary claim, seeking a declaration of the lawfulness of the dismissal for justified objective reasons.
The Court of Appeal, hearing only the employee’s appeal, upheld the decision taken by the Court, rejecting the complaint brought by the employee.
The employee appealed to the Court of Cassation against that ruling, challenging the Court of Appeal’s judgment for having rejected the retaliatory nature of the dismissal.
The decision of the Italian Supreme Court
The Italian Court of Cassation noted, preliminarily, that Article 8, paragraph 1, of Italian Legislative Decree No 81/2015 states that ‘the employee’s refusal to transform his or her full-time employment relationship into a part-time relationship, or vice versa, does not constitute justified grounds for dismissal’.
According to the Italian Court of Cassation judges, this rule, on the one hand, excludes the possibility that the refusal to transform the relationship into part-time can constitute in itself justified grounds for dismissal. On the other hand it does not preclude a dismissal being lawful for objective reasons in the event of a refusal to go part-time, entailing – in the words of the Court – ‘a remodulation of the justified objective ground and the burden of proof’ placed on the employer.
The Italian Court of Cassation judges stated that, in this situation, for the purposes of the lawfulness of the dismissal, the following prerequisites must be met and proved by the employer:
The provision referred to in Article 8, paragraph 1, set out above should not, therefore, be understood in an absolute sense, as a blanket prohibition. It is, rather, a prohibition to be read in a strictly literal way, which does not preclude the possibility of a lawful dismissal for inability to use full-time services associated with the employee’s refusal to change to part-time.
In the event of such a refusal, in other words, it becomes ‘a component of the wider burden of proof‘ on the employer who has ordered a dismissal on the basis of objectively justified reasons owing to economic and organisational difficulties.
Nevertheless, as noted by the Italian Court of Cassation itself, the possibility cannot be excluded that a dismissal is, in fact, retaliation for an employee’s refusal to transform his or her employment relationship with a reduction in working hours. As is known, in this case the dismissal would be null and void, but the nullity must be supported by the employee proving that that the retaliatory intent was the exclusive reason for the dismissal, including with respect to other elements that may be relevant to a just cause or justified reason.
In particular, with reference to the present case, the Italian Court of Cassation judges concluded that ‘the Court of Appeal, given that the [lower] court declared the dismissal unlawful for justified objective reasons for failure to prove the reasons given (and that the related decision was not challenged by the company), excluded the possibility that the dismissal was based on a single and decisive retaliatory ground against the current applicant […]. Therefore, there is no room for holding that the breach of the legal provisions complained of is established, nor can the judgment be claimed to suffer from the defect of apparent reasoning apply given that the appellate decision does not present any of the hypotheses of ‘anomaly of grounds’ appealable before the Court of Cassation’, with the consequent rejection of the appeal brought to the Court of Cassation by the employee.
Other related insights:
By order No 11136 of 27 April 2023, the Italian Court of Cassation ruled on the subject of dismissal for exceeding the job retention period. The Court held that absences due to injury caused to the employee by things in the employer’s custody must be included in the protected period, if the employer is able to prove that accident prevention precautions were taken and the unforeseeable and unavoidable nature of the harmful event.
The facts of the case and the decision on the merits
The employee was employed under a local authority catering sub-contract and challenged her dismissal for exceeding the protected period. In support of the application, the employee submitted that, in calculating the absences taken into account for the purpose of the protection period, those resulting from the accident which occurred due to the explosion of a thermal display cabinet owned by the principal should not have been included.
The Court of Appeal of Venice rejected the appeal brought by the employee, confirming that, in the present case, the days of absence resulting from the accident had to be taken into account, since the absolute unforeseeability of the event had emerged during the proceedings. In addition, the lower court found that the contracting authority had delivered the equipment in good condition at the time of the contract and that it complied with the legislation.
The judgment of the Italian Supreme Court
The employee appealed to the Italian Court of Cassation against the decision of the Court of Appeal of Venice.
With particular reference to the issue of absences taken into consideration for the purpose of calculating the protection period, the Italian Court of Cassation, on the basis of its precedents, confirmed that the employee absences due to an accident at work or occupational disease are attributable, in principle, to the broad and general concept of accident or illness set out in Article 2110 of the Italian Civil Code. They are, therefore, normally included in the protection period.
In fact, for the absence not to be included in the protection period, the employer must be liable for the disease and its origin under Article 2087 of the Italian Civil Code.
Liability under Article 2087 of the Italian Civil Code, the Court pointed out, does not in fact represent strict liability, since it must be linked to the breach of obligations of conduct imposed by legal norms or suggested by experimental or technical knowledge of the time. In that context, therefore, the burden of proof lies with the employee who complains that he or she has suffered damage to health as a result of his or her work, to prove that damage, as well as the harmfulness of the working environment, and the link between them. Only if the employee has provided proof of these facts does the employer bear the burden of proving that accident prevention precautions have been taken and/or the unforeseeable and unavoidable nature of the harmful event.
Applying the aforementioned principles, the Italian Court of Cassation dismissed the appeal as the trial court had found that, in the present case, the wine cellar explosion was an unforeseeable event in view of the required standard of care and applicable safety precautions.
Therefore, the dismissal was held to be lawful, given the inclusion of the absences due to injury in the calculation of the protection period.
Other related insights:
Legitimate dismissal of an invalid worker for exceeding the protected period
By judgment No 12132 of 8 May 2023, the Italian Court of Cassation ruled on the subject of dismissal for justified objective reason. The Court specified that in the assessments of the possibility of relocating the employee before proceeding with the dismissal (so-called repêchage obligation), the employer is required to take into consideration not only the positions already vacant at the date of dismissal, but also those that will be ‘available in a period of time very close to the date of the announcement of the dismissal’.
The facts and the judgment on the merits
On 3 May 2011, an employee with the duties of Sales Manager, was dismissed because his position was redundant. The employee brought an application challenging the dismissal before the Court of Busto Arsizio. The employee sought reinstatement and compensation and also requested a determination that his employment relationship was also attributable to another group company.
The application was dismissed at first instance and on appeal.
A first appeal was therefore brought before the Italian Court of Cassation against the judgment of the Court of Appeal of Milan. This appeal concluded with the acceptance of this further appeal and a referral to the same Court of Second Instance, sitting with different judges, to rule on the objections raised on the subject of the repêchage obligation.
In particular, according to the Italian Supreme Court of Cassation, the Court of Appeal had not conducted the necessary investigations regarding the employer’s compliance with its repêchage obligation. The Court of Cassation recalled that the employer, in this regard, had the burden of proving: (i) the lack of available positions where it could feasibly relocate the employee and (ii) the absence of subsequent recruitment. The Italian Court of Cassation also pointed out that the finding of co-employment could be relevant in the context of an overall assessment of compliance with the repêchage obligation.
The proceedings were therefore reinstated before the Court of Appeal of Milan, which established the actual breach of the repêchage obligation and therefore the unlawfulness of the challenged dismissal.
Specifically, according to the Court of Appeal, at the time of dismissal, two employees with Area Manager duties had resigned with notice expiring on 31 May 2011, a period of time shortly after the date of dismissal. Consequently, the employer should have taken that fact into account in its assessments of the employee’s relocation.
According to the Court of Appeal the following points were irrelevant: (i) the two resigning employees were hired a month later by another Group company that previously obtained their services through a service contract and then decided, in June 2011, to internalise the sales activity, no longer using the services provided by the employer company; and that, consequently, (ii) the dismissal was due to a complex company reorganisation to reduce staff numbers, including the two who had resigned who, in fact had never been replaced, to cope with loss of turnover.
The judgment of the Italian Supreme Court
The employee appealed to the Italian Court of Cassation against the decision taken by the Court of Appeal of Venice. The employer company appealed to the Italian Court of Cassation against the decision taken by the Court of Appeal of Milan.
The Italian Court of Cassation declared the appeal inadmissible and upheld in full the judgment issued by the Court of Appeal of Milan when the case was referred to it.
Specifically, with particular reference to the repêchage obligation, the Italian Court of Cassation highlighted how the Court of Appeal of Milan had followed the indications provided at the time of referral and had ascertained that on the date of the employee’s dismissal, 3 May 2011, two employees of the employer company were completing the dismissal notice period that was to end on 31 May 2011. This proved that at the time of dismissal, the employer was aware that two positions that could be filled by the employee would soon become available in the company.
The Court of Appeal then found that the employer company had not yet been informed at the time of the dismissal of the related company’s decision not to continue to use the service contract and to internalise sales, as this information was not provided until 20 June 2011.
The loss of the service contract could therefore in no way be linked to the dismissal.
The Italian Court of Cassation therefore agreed with the finding made by the Court of Appeal of Milan and underlined that ‘the employer, in assessing the possibility of relocating the employee before proceeding with his/her dismissal, must also take into consideration those employee positions that, although still filled, will become available in a period of time very close to the date when notice of the dismissal is given’.
Since the appeal to the Italian Court of Cassation was ultimately seeking only a different interpretation of the facts from that provided by the Court of Appeal, the Court of Cassation therefore concluded that the appeal was inadmissible, and that the applicant should be ordered to pay the costs.
Other related insights:
The comparison between redundant employees can be limited only to employees of a unit or sector, subject to their ability, due to previous employment in other company departments, to perform the jobs of other colleagues – Employees bear the burden proof of showing that the various duties are interchangeable.
The Italian Court of Cassation, in order No 9128 of 31 March 2023, established that, in relation to collective redundancies due to staff reductions, where the restructuring of the company affects a specific production unit or sector, the comparison between redundant workers can be limited only to employees of that unit or sector, subject to their ability, due to previous employment in other company departments, to perform the jobs of other colleagues. Employees bear the burden proof of showing that the various duties are interchangeable.
In this context, the Court of Cassation continues, the burden falls on the employer to prove the circumstances justifying the narrower scope of the decision that was made, in addition to showing that the chosen workers are not interchangeable with the employees assigned to other departments or offices.
The ruling of the Court of Cassation originates from the dismissal of an employee following a collective dismissal procedure, which was held to be lawful at first instance by the Court of Cassino.
Repealing the first instance judgment, the Court of Appeal of Rome accepted the appeal presented by the employee. The Court of Appeal ascertained that, during the aforementioned collective dismissal procedure, the employer company had breached the selection criteria under Article 5, Italian Law No 223/1991 for not having considered, in deciding which employees to be dismissed, the employee’s previous professional experience in other departments not involved in the corporate reorganisation.
Based on the findings of fact and law, the Court of Appeal of Rome, with judgment No 2287 of 28 October 2020, accepted the employee’s complaint. The Court ordered the employer to reinstate the employee and pay compensation equal to the overall actual remuneration from the day of the dismissal until that of reinstatement, for a period not exceeding 12 months.
The employer company filed an appeal against the decision taken by the Court of Appeal of Rome, which the employee resisted with a counter-appeal.
Specifically, the company alleged, among other things, the breach and misapplication of Articles 4 and 5 of Italian Law No 223/1991 and the rule on the distribution of the burden of proof under Article 2697 of the Italian Civil Code and Article 115 of the Italian Code of Civil Procedure. The company argued that the Court of Appeal of Rome had erred in upholding the unlawfulness of the dismissal on the grounds that the employer had limited its consideration of the employee’s job to a single business unit, also given the lack of evidence on the employee’s actual duties in other departments.
Nevertheless, the Court of Cassation held the company’s complaints to be unfounded. The Court highlighted how the Court of Appeal of Rome had complied with a principle widely established in case law (Court of Cassation, Employment Division, judgments No 18190/2016 and No 2284/2018) according to which, in the event of collective dismissal that concerns a specific production unit or sector, the comparison of the employees to be made redundant can be limited to the personnel assigned to that unit or sector. This is, however, on condition that the employees of the department to be abolished, due to their career history, are not capable of performing the jobs of colleagues in departments or sectors of the company not involved in the reorganisation.
In terms of proof, the Court of Cassation judges reaffirmed the principle, already expressed in previous Court of Cassation case law (Court of Cassation, Employment Division, judgments No 8474/2005, No 13783/2006, No 33889/2022, No 203/2015, No 19105/2017 and No 15953/2021), according to which the burden proof of proving the interchangeable nature of the various duties is on the employees, while the burden is on the employer to prove
a) the circumstances that justify the narrower business context in which to make the choice of the employees to be dismissed and
b) that the employees did not carry out duties that were interchangeable with those of colleagues from other departments.
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