De Luca & Partners managing partner Vittorio De Luca, discusses the legislative measures that introduced the ban, initially generalised and later sectorial, of dismissals for economic reasons. The government has reached an agreement with the social partners on the dismissal prohibition, what is your take on it? “The agreement includes a “commitment” to use all existing social safety nets before resorting to redundancies, in particular the use of wage subsidies,” he stated. “The agreement in question, structured as it is, represents a pure form of recommendation and certainly not an obligation. Faced with a generalised ban from March 2020 and until March 2021, we are now faced with a diversified framework: with the Support Decree and the law converting the Support Decree bis, the ban on dismissals has been partly concluded and partly extended at certain conditions”. Looking at the European situation, the European Union has basically rejected the measure in effect from March 2020, underlining that Italy is the only Member State to have introduced a generalised ban on dismissals from the beginning of the Covid-19 crisis.
What do you think about this? “With the Recommendations published on June 2 the European Commission explained how the ban on dismissals was not particularly effective and turned out to be unnecessary considering the extensive use of systems aimed at maintaining jobs. The Commission rejected the measure pointing out that it is a measure that is to the advantage of permanent employees and detrimental for fixed-term, temporary or seasonal workers. He continued – it is necessary to emphasise that the freezing of entire manufacturing sectors risks being counterproductive because it hinders the necessary adjustment of the workforce to changing company needs”.
Decree Law no. 105/2021 established that, as of 6 August 2021, the COVID-19 green certificate ( Green Pass) is mandatory to access a range of services/activities, including catering services provided by any establishment for consumption at the table indoors, gyms and cinemas, to participate in sports and cultural events and selection procedures.
The Green Pass can be issued:
The Ministry of the Interior, while waiting for clarification from the Government on the obligation of the green certificate for workers, with note no. 4073 of 5 August 2021, established that the certificate was not necessary to access canteens, bars and company clubs. This was subject to compliance with the protocols already in force to prevent and contain Covid-19 infection.
The note stated that for canteens outside the company, however, the green certificate remained mandatory, and workers without it, according to the Ministry’s instructions, would have to consume the meal outdoors or in takeaway mode.
With FAQ published on 14 August on the institutional portal for the Covid-19 green certificate, the Government has made a U-turn on what was outlined by the Ministry of Interior.
It was established that even “for the consumption of meals at the table indoors, workers can access the company canteen or premises used for the provision of food services to employees only if they have the COVID-19 green certification, as in restaurants. The operators of the above services are required to verify the COVID-19 green certificates as instructed by Prime Ministerial Decree of 17 June 2021.” The obligation applies to public sector and private companies.
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As of 6 August 2021, access to company canteens and catering premises will be denied to any worker who does not submit the green certificate attesting to vaccination or recovery or the possession of a negative (molecular or antigenic) swab within the last 48 hours.
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Green pass to access the workplace is not conceivable in the absence of compulsory vaccination
In a ruling dated 8 July 2021, the Court of Trento, upheld a disciplinary dismissal (for just cause) imposed on a teacher who repeatedly refused to wear a protective mask while working at school.
In this case, the teacher, employed by the Autonomous Province of Trento, refused to comply with an order issued by the head of the educational activities department, who asked her to wear a protective mask to ensure the health and safety of children, colleagues and the school community. In support of her refusal, during the disciplinary proceedings, the employee claimed that she did not want to wear the mask because she was a “conscientious objector” and that additionally, she was unable to do so for health reasons. Dismissed for just cause, she appealed to the employment tribunal of Trento, requesting reinstatement.
The Tribunal found that the allegations made by the employee did not include any medical certification capable of justifying her refusal to wear the mask. Her conduct conflicted with the guidelines for the protection of health approved by the President of the Autonomous Province of Trento by order of 25 August 2020 and, at national level, with the Protocol for the protection of health and safety at work, and the Memorandum of Understanding signed by the Ministry of Education on 6 August 2020, prescribing the obligation “for anyone entering school environments” to “adopt hygienic precautions and use a mask.”
According to the Court of Trento, the above administrative measures were based on the legislator’s will (Article 16, paragraph 1, of Decree 18/2020), which sees masks as personal protective equipment. Based on previous Court of Cassation guidelines (25932/2013 and 18265/2013), the Trento court judge recalled that “the persistent refusal by the employee to use the personal protective equipment justifies the dismissal of the defaulting employee.”
Continue reading the full version published on Il Quotidiano del Lavoro of Il Sole 24 Ore.
In an internal letter of the director general sent by e-mail to the directors of the system’s local and sectoral associations, Confindustria expressed its favourable opinion on the Covid-19 green certificate (better known as green pass) to access workplaces.
According to the position taken by Confindustria, the presentation of the green certificate should be part of the obligations of diligence, fairness and good faith on which the employment relationship is based. Consequently, the employer, where possible, could assign the non-vaccinated worker to tasks other than those typically carried out and pay them accordingly. If this is impossible, the employer should be allowed not to admit the employee to work, with the suspension of pay if they are removed from the company.
Together with the safety protocol updated on 6 April and the protocol on vaccination in the workplace signed on the same date, such an initiative aims to protect workers’ health and safety and the production process. Among other things, the proposal would be justified given the serious concern about a possible third pandemic wave that could lead to a new work shutdown and the consequent need for yet another extension of the Covid-19 social safety nets.
However, legally, this has several critical issues.
First, as for individual rights, it is necessary to consider Article 32 of the Constitution on the “right to health”, which represents a kaleidoscope of multiple forms of health protection. The article in question firstly states that “the Republic shall protect health as a fundamental right of the individual and in the interest of the community”, and then specifies that “no one may be obliged to undergo a given medical treatment except by provision of law”.
This constitutional provision protects health as a fundamental right of the individual and as an interest of the community. It allows the imposition of medical treatment if intended, as specified by the Constitutional Court, “to preserve the state of health of the person subject to it, and the state of health of others” (see ruling no. 5/2018 of the Constitutional Court).
Continue reading the full version published in Guida al Lavoro of Il Sole 24 Ore.
In a 2 July 2021 order, The Court of Milan ruled that, dismissals announced by the same company to six executives, in the same period and based on the same objective reasons, were part of the collective redundancies subject to the prohibition during the pandemic. The Court held that it was irrelevant that four of the six dismissals had been revoked, the employment relationship reinstated and subsequently terminated by mutual consent.
In February 2021, a company in liquidation dismissed an executive for objective justified reasons on the grounds of an alleged reduction in business activity and turnover and the termination of his position. The executive challenged the dismissal in Court, pointing out that, within about six weeks and based on the same objective grounds, the company had dismissed five other executives, implying that his dismissal was covered by the collective dismissals referred to in Articles 4, 5 and 24 of Law no. 223/1991, prohibited by the emergency Covid-19 legislation.
The company, which appeared in Court, pointed out that during that period, there had been two dismissals and not six, since four of the six executive employment relationships had ended consensually and against a financial incentive (the notice of dismissal had been followed by a revocation, reinstatement of the relationship and consensual termination).
The Court upheld the executive’s appeal, holding that the subsequent revocation of four of the six dismissals was irrelevant and could not prevent the case from being one of collective redundancy since the wording of Art. 24 of Italian Law no. 223/1991 leaves no room for any other interpretation.
Under the above law, an employer who employs more than 15 employees and intends to make at least five redundancies within 120 days because of a reduction or transformation of business or work, must comply with the procedures laid down by the same law. Therefore, for collective redundancy definition purposes, it is irrelevant if the number of employees dismissed is lower.
In this case, in the Court’s view, the numerical requirement under the law had been met upstream when the company had made six redundancies within about six weeks, openly expressing its intention to terminate the employment relationship.
Having ascertained the existence of collective dismissal, the Court found that the executive’s employment termination was null and void for breach of the rules on the collective dismissal prohibition laid down in Art. 46 of Decree Law no. 18/2020 and repeatedly extended “whose imperative nature and public order reasons cannot be doubted”. The Court ordered the company to reinstate the executive in his job and pay him compensation.
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