By Order no. 27353 of 26 September 2023, the Court of Cassation ruled on the case of an employee
who had been dismissed for stealing company assets of low value. The employee challenged his
dismissal and brought a legal action asking to be reinstated back to work. The Court, while ruling
out the annulment of dismissal, held that the dismissal was disproportionate to the modest value of
the goods stolen by the employee and sentenced the Company to pay compensation to the
employee. The Court of Cassation, after hearing the case, confirmed that, since the charge (i.e.
theft) fell within those for which the applicable National Collective Bargaining Agreement provided
for dismissal, the employee’s dismissal could not be annulled. However, since the sanction imposed
was clearly disproportionate to the offence committed, the Supreme Court upheld the decision of
the trial judges, holding that compensation under Article 18(5) of Law no. 300 of 1970 was
applicable in the case at hand.
In judgment no. 20239 of 14 July 2023, the Court of Cassation dealt with the issue of
dismissal due to unsuccessful trial period, in a case in which the probationary period agreement was
null and void. The Court ruled that workers subject to the so-called “rising protection” legislation
(i.e., workers hired after 7 March 2015) are only entitled to compensation, and not to
reinstatement to work. In support of its decision, the Italian Supreme Court noted that the dismissal
reform introduced by the so-called Jobs Act has limited the remedy of annulment of the dismissal to
disciplinary dismissal, and specifically, only to the case that the inexistence of the material fact
with which the worker is charged is proved in court; and it has therefore concluded that given the
residual nature of this remedy in the Jobs Act legal framework, dismissals notified during the
probationary period under an invalid agreement give rise only to the monetary compensation
remedy.
With Order No. 26697 of 21 September 2023, the Italian Court of Cassation ruled that an employer can deny the holidays requested by a worker to avoid exceeding the limit of the job retention period only in the event that there are actual and genuine obstacles.
The facts of the case
The matter originated from the dismissal of a worker for exceeding the job retention period. The worker challenged the dismissal by providing evidence that she had asked the employer, with a communication sent and received by the company before the job retention period for the position had expired, to use accrued and untaken holidays.
With the same letter, the worker also informed the employer of her intention to request, once the holiday period ended, a period of unpaid leave if she were still unable to work. The employer rejected the request to use the holidays, granting the worker a period of unpaid leave of 120 days, and also informed her that the accrued and unused holidays would be paid on dismissal if, after the period of unpaid leave, the worker was still unable to resume work.
On expiry of the period of unpaid leave authorised by the Company, given the continuation of the employee’s illness, the employer notified the worker of dismissal for exceeding the job retention period.
The employee took legal action challenging the dismissal. In the proceedings, the Court accepted the worker’s requests, ordering the company to reinstate her.
On this point the Court of Appeal confirmed the judgment given in the first instance proceedings and found that the Company had unlawfully rejected the request made by the employee before exceeding the job retention period seeking to use accrued holidays to avoid exceeding the period.
The appeal to the Italian Court of Cassation and the latter’s judgment
The Company appealed against the judgment to the Court of Cassation.
The Italian Court of Cassation – in confirming the second instance judgment – clarified that a worker who is absent due to illness has the right to request the use of accrued and unused holidays, with the aim of suspending the running of the job retention period.
According to the Court of Cassation judges, this right does not give rise to a corresponding obligation on the employer to accept the request where there are organisational reasons that would prevent it.
The Court also reiterated the need for the reasons advanced by the employer to be actual and genuine, with a view to balancing the opposing interests and to comply with the general clauses of fairness and good faith.
As the latter requirement had not been satisfied in the present case, the Italian Supreme Court therefore rejected the appeal brought by the Company.
Other related insights:
One of the fundamental requirements in the context of disciplinary complaints is consistency between the charge alleged against a worker and the underlying sanction imposed. This principle is aimed at ensuring a fair and just procedure in the context of employment relationships, to prevent the employer from carrying out dismissals based on circumstances over and above or different from those set out in the disciplinary letter.
The recent ruling of the Italian Court of Cassation
The Italian Court of Cassation reiterated the aforementioned principle with Order No. 26042/2023 of 7 September 2023.
The case concerned a worker who had been fired following accusations of forgery and theft of fuel, offences which had simultaneously been the subject of a criminal trial.
The worker, initially dismissed, was subsequently acquitted of these charges in the criminal proceedings, for not having committed the crime.
In the criminal sentence of acquittal, the Court of first instance and the Court of Appeal held the dismissal to be unlawful.
The company challenged the decision before the Italian Court of Cassation, arguing, first, that the requirements under criminal law for the effectiveness of a criminal judgment in civil proceedings were lacking, and, second, that there had been a failure to examine certain additional facts sufficient to irreparably damage the bond of trust with the dismissed worker.
The Court’s decision
The Court of Cassation stated that “in the current procedural system, in the absence of a definitive rule which exhaustively sets out the means of proof, the judge may legitimately use evidence not expressly referred to by law as the basis of his or her decision .” Consequently, in the Court’s opinion, “there is no doubt that the sentence of acquittal for not having committed the crime, even after abridged proceedings, can be classified as atypical evidence of the non-existence of the disciplinary charge falling within the perimeter of the parallel criminal charge, the re-evaluation of which in fact is precluded before the Court of Cassation”.
Furthermore, the Court of Cassation rejected the alleged failure to evaluate “omissions” and “breaches” outside the disciplinary complaint. This is on the basis of the principle that disciplinary complaints may not be changed, which prevents the employer from expanding their scope during the judicial proceedings.
Other related insights:
The Court of Appeal of Trento decided with judgment No. 8 of 6 July 2023 that an employer cannot dismiss a worker suffering from an illness that leads to a disability immediately after exceeding the protected period, but must make reasonable arrangements for the preservation of the job, in compliance with the principles of good faith and fairness. These principles also include informing the employee of the possibility of taking unpaid leave before exceeding the protected period.
The facts of the case
The ruling originates from a judgment of the Court of Rovereto (No. 54 of 2022) which held that a dismissal imposed on a worker suffering from type 2 diabetes, which led to the amputation of a finger, at the end of the maximum period of absence provided for by the National Collective Bargaining Agreement (contratto collettivo nazionale di lavoro, ‘CCNL’), was lawful. The Court held that the dismissal was lawful on the grounds that the worker’s disability had not been certified before the termination of the relationship and that there was no obligation on the employer to inform the employee before the protected period was exceeded.
The worker appealed to the Court of Appeal against the Court of Rovereto’s judgment.
The decision of the Court of Appeal
The Court of Appeal came to a different conclusion, basing its reasoning on a finding of indirect discrimination against the worker. The Court recalled at the outset the guidance from the European Court of Justice, according to which disability is ‘a limitation which results in particular from physical, mental or psychological impairments’ which may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers. The definition is, in reality, very broad and independent of the formal recognition of an invalidity ‘understood as a reduction – ascertained by the bodies responsible for this – of working capacity’. In addition, according to the Court, it is necessary to make a distinction between illness and disability, which is characterised by the ‘permanence of the illness and its long duration’.
In the specific case, the judgment referred to the fact that the company had been periodically informed by the worker of his state of illness and that it was in this context that it could have taken ‘appropriate protection initiatives’. The Court held that the fact that the applicable CCNL provided for unpaid leave only at the request of the person concerned does not exclude the employer’s duty to take an active role. The employer should in fact inform the employee of the approaching expiry of the protected period and of the possibility of requesting leave as a form of accommodation. This action would be in line with the principles of fairness and good faith of the employment relationship, even if formally the employee had not yet reached the status of legal disability.
The Court therefore declared the dismissal null and void as discriminatory, as the company did not prove that it had made adequate efforts to reasonably accommodate the employee. The company also did not prove that these measures would have caused serious organisational or financial problems, nor that they would have been disproportionately onerous. As a result, the employee was reinstated in the workplace, with compensation equal to the total remuneration between the date of dismissal and the effective date of reinstatement.
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