In its decision no. 24595 of 13 September 2024, the Supreme Court ruled that the behaviour of a worker who comes to work with trade union flyers attached to his body is unlawful because it does not constitute a regular posting or proselytising activity.
The worker challenged in Court the conservative disciplinary sanction imposed on him for being at work with trade union flyers attached to his chest and back.
The Court of Appeal rejected the claim, stating that the conduct in question was not part of the free exercise of trade union activities, and also taking into account that the employee had never held a trade union position.
The Supreme Court, upholding the decision of the Court of Appeal, ruled that trade union proselytism in the workplace is subject to the limits provided for under Article 26 (paragraph 1) of Law no. 300 of 1970 and can therefore be considered lawful only if it does not interfere with the normal conduct of the company’s business, taking into account the specific organizational methods of the company and the nature of the work assigned to the recipients of the communications.
In particular, with the judgment under review, the Court has identified the limits within which trade union proselytising activities can be considered lawful and the limits within which this right can be exercised, as long as it respects the communication “spaces” provided by the employer, in fulfilment of the obligations imposed by the legislator, also mutually agreed, and in any case does not interfere with the normal course of the company’s activities, within the framework of the normal functional and productive profile.
With particular reference to the latter condition, the Court of Appeal correctly held that the activity of distributing flyers by the so-called “sandwich man” fell outside the limits imposed by the aforementioned Article 26, as it was a source of constant distraction from work activities and therefore interfered with the normal course of business and company life.
On these grounds, the Supreme Court rejected the appeal brought by the employee, confirming the lawfulness of the disciplinary sanction imposed on him.
The Court of Mantua, in its ruling no. 112, filed on 11 November 2020, declared the absolute nullity of dismissal for justified objective reason with consequent applicability of reinstatement in the job that was notified in violation of the express ban introduced by the law decrees enacted to face the pandemic emergency from Covid-19.
A worker, a trainee of a company operating in the clothing and costume jewellery retail sector, was first put on wage guarantees due to the Covid-19 healthcare emergency. Following use of the wage guarantees, she was put on holiday and then dismissed for justified objective reason.
Objecting to the dismissal the worker appealed to the court preliminarily citing the relative invalidity for violation of the emergency legislation and secondly for lack of justified objective reason as well as violation of the repechage obligation finding that she could have been transferred to other job sites.
The assigned Court in granting the worker’s appeal explained that the generalised ban on individual dismissal for justified objective reason represents a temporary protection of the stability of employment to safeguard the market and the economic system and is a job market policy and economic policy measure connected to public order requirements.
This ban on dismissals was originally introduced by art. 46 of the “Cure Italy” Decree (Decree Law no. 18/2020) until the date of 17 May 2020, to then be later extended by later emergency provisions.
The legislative provisions in question, the Court confirmed, have an imperative and public order nature with the consequence that dismissals adopted in contrast with them, are invalid with a consequent application of reinstatement as per art. 18, 1st paragraph, Law 300/1970 and as per art. 2, Italian Legislative Decree 23/2015 (with the “expressly” invalidity from art. 1418 of the Italian Civil Code).
The Court then added that the dismissal regulations for open-ended contracts also apply to the trainee contract given the comparable nature of trainee and ordinary employee. The Court also reiterated that the employer has the burden of proving the just cause or justified reason of the dismissal and, in the case in hand, nothing was demonstrated as the company did not appear.
In light of the above, the Court decided to apply to the dismissed employee the protection of reinstatement in the previously held job, sentencing the company to pay the remuneration used as reference to calculate TFR (post-employment benefits) from the date of dismissal until reinstatement on the job, without prejudice to the worker’s right to request compensation in lieu of reinstatement. Moreover, the company was sentenced to pay welfare and social security contributions for the same period.
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The ruling under review shows that violation of the temporary ban on dismissals entails the absolute nullity of the same, for violation of an imperative law with consequent applicability of the “full” real protection contained in art. 18, paragraph 1, of Law 300/1970 and art. 2 of Legislative Decree no. 23/2015 depending on whether the employees were hired before or after 7 March 2015 (date Legislative Decree 23/2015 became effective).
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