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 The Court held that it was irrelevant that four of the six dismissals had been revoked, the employment relationship reinstated and subsequently terminated by mutual consent.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.
Other related insights:
Although the redundancy fund for the workforce (or a department) takes precedence over sick pay, the protected period continues to apply. This means that the dismissal of an employee who exceeded the protected period in such circumstances is legitimate.
In a 17 July 2021 order, the Court of Foggia ruled on the validity of a dismissal that exceeded the protected period. The Court stated that even if the wage supplement replaced the relevant daily allowance during illness, the employer could not arbitrarily change the reason of the employee’s absence, so the protected period continued to run during a certified illness unless the employee requested a change in the attribution of their absence from work.
In this case, an employee was dismissed for taking 430 days of sick leave instead of the 420 days provided for by the collective agreement applied to the employment relationship. The employee took legal action requesting the dismissal be declared unlawful, arguing that he had been placed, together with the other company employees, under the ordinary redundancy fund for Covid-19, which had legally replaced the sick leave he was taking. To support his claim, the employee refers to Art. 3, paragraph 7, of Legislative Decree no. 148/2015, and INPS Circular no. 197/2015, according to which “the wage subsidy replaces the daily sickness allowance in case of illness, and any contractually provided supplement.” The Court rejected the appeal referring to the arguments expressed by the Court of Pesaro in ruling no. 16/2021 and pointed out that with the above art. 3, paragraph 7, of Legislative Decree no. 148/2015, the legislator intended only to provide for a different attribution of the financial benefit received by the employee when using a period of wage subsidy, which remains, however, the responsibility of INPS (as in the case of illness), without intervening on the absence reason which pertains to the private relationship between employee and employer. Such a different attribution has nothing to do with the protected period and the work suspension. According to the Court, the employer cannot arbitrarily change the employee’s absence reason when they are on sick leave because that would mean giving the employer extra ordinem power, which would be contrary to a constitutionally guaranteed right, such as the right to health.
Continue reading the full version published in Norme & Tributi Plus Diritto of Il Sole 24 Ore.
Vittorio De Luca of De Luca & Partners said the Confindustria proposal to allow employers to require the green pass to access workplaces and carry out related activities was “appropriate” to open the health passport debate on the protection of workers’ health and production. However, it will have to overcome some significant critical issues. “How is it possible that the employer cannot ask employees if they have been vaccinated when instead we show the vaccination passport to go even to the restaurant or the airport?”
Legally, the Data Protection Authority, has expressed a negative opinion on the possibility of employers asking their employees to provide information on their vaccination status or copies of documents certifying vaccination.
De Luca continued: “There is then a problem of limitation of constitutional personal freedoms and rights such as health and work. Health is protected as a fundamental right of the individual and as an interest of the community. Work must be “actual” (art. 4, paragraph 1, of the Constitution) and it is inconceivable that it is reserved only for workers who have been vaccinated.
Unless there is a legal provision, which at the moment I think can hardly be approved.
Even the solution of changing the temporary assignment to different tasks or remote working has limited practical use.
Think of a worker who is unlikely to work remotely or be assigned to different tasks that do not require access to company premises. Even if we do not consider the critical aspects mentioned above, we cannot overlook that such an initiative could indirectly entail the imposition of a medical treatment, which is hardly compatible with the principle of art. 32 of the Constitution, according to which health treatments (such as vaccination) can only be made compulsory by law.”
That said, in the face of the various critical issues, “a decisive legislative measure that can balance the various constitutional rights with the principle of reasonableness, is desirable.”
On Tuesday 8 June, De Luca & Partners will hold the HR Virtual Breakfast focusing on the latest news in labour law introduced by the Sostegni Bis Decree, to examine together the first steps towards the Italian economic recovery to react to the impact of the Covid19 pandemic.
Our Partner Enrico De Luca and our Managing Associate Stefania Raviele will take stock of the latest labour news introduced by the Sostegni bis Decree.
The event will be held 8-9 am using the Zoom platform.
AGENDA:
Attendance is free subject to registration
Info at: events@delucapartners.it
Elena Cannone (Senior Associate and Compliance Focus Team Leader – De Luca & Partners) and Andrea Di Nino (Employment Consultant – HR Capital) will participate as guest speakers in “HR: TIME TO CHANGE” organised by the Italian-Germanic Chamber of Commerce next 27 May.
Thursday 27 May 2021
Videoconference event
(from 4 to 6.30 pm)
The year 2020 was marked by the Covid-19 pandemic, which forced companies to reorganise the way they work. In this situation, remote working helped counter the spread of the virus in the workplace.
What will happen after the pandemic? Will remote working go from being an exception to becoming the norm? What are the challenges facing companies and their management? What are the advantages of remote working?
These are some of the topics that Elena Cannone and Andrea Di Nino will discuss during the event.
Click here to consult the programme and receive further details.
