By judgment No. 450 of 13 June 2023, the Court of Appeal of Messina established that if an employer has not trained employees on the specific risks related to the tasks for which they are employed, sick days attributable to harmful working conditions do not count towards the protected period. This applies even if the employer has taken the necessary measures to protect workers’ health under the general obligation to protect their psycho-physical wellbeing under Article 2087 of the Italian Civil Code.
The facts of the case
The facts of the case stem from a claim brought by a physiotherapist who was dismissed for exceeding the maximum sickness period. The worker challenged the dismissal, arguing that 57 days had to be deducted from the protected period because the absence was attributable to carpal tunnel syndrome which developed through lifting immobile patients (tasks to which she was assigned).
The worker’s application was upheld at the preliminary stage and subsequently rejected by the Court of Barcellona Pozzo di Gotto on the ground that, although the absences were attributable to an illness attributable to her tasks, the employer had fulfilled the obligation to safeguard health under Article 2087 of the Italian Civil Code.
The worker therefore appealed against the decision of the Court of First Instance before the Court of Appeal, which overturned the judgment.
The Court’s decision
The Court of Appeal stated that the employer’s failure to comply with the training obligation prevented the days of absence from being counted towards the protected period.
In the Court’s view, it was not sufficient that the employer had complied with the obligation to provide information on the general and specific risks linked to the workers’ individual activities, since training has a further purpose, namely compliance with obligations to provide information.
In this context, the Court attached importance to the various “training” and “information” obligations by clarifying their differences. Training is the educational process necessary to acquire the skills for the safe performance of tasks, identifying, reducing and managing risks. Information, on the other hand, provides the knowledge necessary for the management, reduction and management of risks. According to the Court, ‘the former constitutes the indispensable framework for the latter to be meaningful’.
The training must, moreover, meet specific standards of adequacy, which require that the employer ensures that workers receive training tailored to the specific risks of each worker’s tasks. In this context, compliance with the obligation to provide information does not therefore replace the obligation to provide training.
Indeed, according to the Court, in the case in question it was highly probable that the worker, if she had been adequately trained, would not have had to undergo the operation, or would at least have had a shorter or less arduous course of treatment. This in turn would have reduced the number of sick days which would have fallen within the overall limit of 180 days over the three-year period.
This resulted in the breach of Article 2087 of the Italian Civil Code, which had a causal effect to the onset of the illness in the terms and times ascertained.
In this context, an employer’s failure to comply with the obligation to provide adequate training on health risks prevents days of absence from being taken into account when counting the maximum period of sickness.
Consequently, in the Court’s opinion, in the present case, the dismissal by the employer taking into account those absences was unlawful, with the consequent reinstatement of the worker in the workplace and compensation for damages, under Article 18 of Italian Law No. 300/1970.
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With its recent judgment No. 17643 of 20 June 2023, the Italian Court of Cassation affirmed the principle that the limitation period for a worker’s right to receive compensation in lieu of untaken holiday leave and weekly rest starts from the termination of the employment relationship, except where the employer proves that the worker was put in a position to enjoy the accrued holiday leave.
In particular, the employer must provide proof that it has invited the worker to take the holiday leave at a time that ensures that the leave still provides the person concerned with the rest and relaxation for which it is intended. In addition, the employer must have warned the worker that, if the holiday leave is not taken, it will be lost at the end of the reference period.
In the case examined by the Italian Court of Cassation, a worker, following the termination of the employment relationship due to resignation, brought an action before the Court of Milan requesting, among other claims, an order that the employer pay her compensation in lieu of untaken holiday leave.
The Court partially accepted the worker’s request, while the Court of Appeal of Milan upheld the worker’s cross-appeal, recognising the right to receive compensation in lieu of holiday leave for a total of 248 days (instead of 124 days as ordered by the Court at first instance).
The employer appealed to the Italian Court of Cassation against the judgment of the Court of Appeal of Milan, submitting, among other things, that the worker’s rights were time-barred, given the ten-year limitation period for compensation in lieu of holiday leave that must start to run during the employment relationship.
In this regard, the Italian Court of Cassation, confirming the rulings of the first instance judges, stated that the limitation period of the worker’s right to compensation in lieu of untaken holiday leave and weekly rest ‘starts from the termination of the employment relationship, unless the employer proves that the right to holiday leave and weekly rest was lost by that worker because he or she did not enjoy it despite the invitation to use it; the invitation must be clear and given in good time to ensure that the holiday leave and rest periods provide the person concerned with the rest and relaxation for which they are intended, and must contain a notice that, in the event of non-enjoyment, such leave and rest will be lost at the end of the reference period or an authorised carry-over period’.
In conclusion, therefore, it is better not to postpone holiday leave when it is the employer who invites the worker to use it to avoid the risk of definitively losing the right, including that relating to the monetisation provided for at the end of the employment relationship.
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By judgment No. 18168 of 26 June 2023, the Italian Court of Cassation once again addressed the issue of the limits of employer controls via the use of IT tools, establishing the unlawfulness of dismissal and the non-usability of evidence gathered following a check on an employee’s company e-mail carried out by the employer company in breach of, inter alia, the provisions on the protection of personal data.
The facts of the case
The procedural case stems from a disciplinary measure against a worker for ‘insubordinate conduct and breach of the duties of diligence and loyalty as well as of the general principles of fairness and good faith’ because, among other things, he had had dealings with competitors.
The evidence relating to the alleged facts had been collected following an indiscriminate investigation carried out by the company into the company email assigned to the worker.
The Court of Appeal, in upholding the first instance ruling, found that the dismissal was unlawful and ordered the company to pay sums in lieu of notice supplementary indemnity, and as amounts due as severance pay (TFR)
The unsuccessful company thus appealed to the Italian Court of Cassation.
‘Defensive controls’
On this occasion, the Court of Cassation once again returned to the issue of so-called ‘defensive controls’, reaffirming the distinction between a. ‘controls in defence of the company’s assets’ and b. ‘defensive controls in the strict sense’.
a. The ‘controls in defence of company assets’
The ‘controls in defence of company assets’ concern all employees (or groups of employees) who in carrying out their work are in contact with company assets and must necessarily be carried out in compliance with, and within the limits of, the provisions of Article 4 of the Italian Workers’ Statute (Italian Law No. 300/70).
b. ‘Defensive controls in the strict sense’
The ‘defensive controls in the strict sense’, on the other hand, are aimed at ascertaining specific unlawful conduct attributable, on the basis of specific indications, to individual workers and ‘remain, even today, outside the scope of application of Article 4’; these controls must be targeted and implemented ex post, prompted, therefore, by episodes that have already occurred ‘because only from that point onwards the employer can collect usable information’.
The decision of the Italian Court of Cassation
Returning to the present case, the Court of Appeal found that the company:
Since it is not possible ‘to remove the worker’s relationship with his employer from the general rules on the protection of personal data’, the Italian Court of Cassation itself – which refers to the founding principles of the matter including (i) the principles of minimisation and proportionality (ii) the principles of relevance and non-excessiveness with respect to a lawful purpose as well as (iii) the principles of transparency and fairness – clarifies that even in the context of a ‘defensive control in the strict sense’ it is necessary to ensure ‘a correct balance between the employer’s needs to protect the company’s assets and property and the indispensable protection of the worker’s dignity and confidentiality’.
For all these reasons, the Court concludes, the second instance judges correctly assessed the balance between the conduct engaged in by the company and the resulting level of intrusion into the worker’s private life.
The Italian Court of Cassation rejected the appeal, finding against the appellant company and upholding the unlawfulness of the dismissal as well as the unusability of the unlawfully acquired data.
The Italian Court of Cassation indicated the elements useful for guiding the Italian judge’s balancing act in cases of ‘defensive checks in the strict sense’:
By referring to the case law of the European Court of Human Rights (specifically, the case Barbulescu v. Romania, 5 September 2017), the Italian Court of Cassation indicated the elements useful for guiding the Italian judge’s balancing act in cases of ‘defensive checks in the strict sense’:
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The Italian Court of Cassation in its very recent judgment No. 20239 of 14 July 2023 ruled on the issue of an employer’s withdrawal ad nutum that was given on the basis of a trial period agreement, which was declared null and void, stating that, where the dismissal does not fall under any of the cases referred to in Article 3(2) of Italian Legislative Decree 23/2015, the only protection applicable to the employee is indemnity.
The facts of the case
The case involved the dismissal of an employee for unsuccessful outcome of the trial period. The relevant employment contract had been entered into on 3 August 2015 with effect from the following September and with consequent application of the regulations on dismissals set out in Italian Legislative Decree 23/2015 (the so-called Jobs Act).
In the context of the proceedings on the merits, it was found that the trial period agreement set out by the contract was null and void for the failure to indicate the specific duties to which the employee would be assigned, and the professional profile assigned to her.
With reference to the consequent penalties, both the Court and the Court of Appeal had ruled that the consequences of the unlawful termination by the employer on the basis of a null and void trial period agreement did not fall within the scope of the circumstances governed by Article 3(2) of Italian Legislative Decree No. 23 of 2015, entailing the application of the effective protection, but regulated by Article 3(1) of the aforementioned decree, with the application, therefore, only of the so-called indemnity protection, in practice set at four months’ pay of the actual overall pay.
The application to the Italian Court of Cassation and the Court’s ruling
The employee lodged an application with the Italian Court of Cassation against the decision of the Court of Appeal, and put forward a number of grounds for contesting the ruling on appeal.
Indeed, the employee argued, firstly, that due to the lack of a valid and effective trial period agreement, the dismissal given for unsuccessful outcome of the trial period should have been declared null and void, with the consequent application of full reinstatement protection, pursuant to Article 2 of Italian Legislative Decree 23/2015.
In the alternative, the employee criticised the judgment on the ground that the Court of Appeal had held that the protection under Article 3(1) of Italian Legislative Decree 23/2015 was to be applied instead of the reduced reintegration protection, pursuant to the second paragraph of Article 3 of the aforementioned provision.
The Italian Court of Cassation rejected the employee’s plea on the basis of several findings.
The Court first observed that the nullity of the clause of the trial period agreement, given that it was partial, does not extend its effects to the entire contract, but pertains to the final employment from the outset, in accordance with Article 1419, paragraph 2, of the Italian Civil Code.
It follows from this, on the one hand, that the regime of free withdrawal no longer applies and, on the other hand, that the employer’s termination must be equated with an ordinary dismissal subject to judicial examination as to whether there is just cause or justified reason.
Thus, continues the Court, in the system introduced by Italian Legislative Decree 23/2015, the specific case cannot be traced back to the scope of the invalidity of the termination governed by Article 2 of the aforementioned decree, this rule being only applicable ‘to the case of discriminatory dismissal and the other cases of nullity expressly provided for by law’.
Having ruled out the application of Article 2, the Court consequently examined Article 3 of the so-called Jobs Act in order to verify the protection applicable to the case at hand.
The Italian Court of Cassation noted how, in the regulatory framework of the Jobs Act legislator, reinstatement protection is merely residual in nature, being applicable only to cases of dismissal for justified subjective reason or for just cause in which the lack of the material dispute of fact contested against the employee is proven in court (Article 3(2), Italian Legislative Decree 23/2015).
It follows – the Italian Court of Cassation continues, that the withdrawal ad nutum given without a valid trial period agreement, since it does not fall under any of the specific cases referred to in the second paragraph above, is to be considered to be subject to the general rule of indemnity protection under Article 2(1) of Italian Legislative Decree 23/2015.
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By judgment No. 429 of 27 April 2023, the Court of Turin established that resignation for just cause giving entitlement to the unemployment allowance ‘Naspi’ does not require the worker to prove that the transfer was unjustified if the new place of work is more than 50 km away from his/her residence.
The case stemmed from the resignation for just cause submitted by the worker in connection with the transfer of her place of employment from Turin to Trieste. In particular, the resignation was due, as indicated in the notice of resignation, to the refusal to ‘move to another location more than 80 km away from her residence’.
The request to access Naspi following the resignation following the transfer was rejected by National Social Security Entity (INPS, Istituto Nazionale della Previdenza Sociale). INPS, by citing message No. 369/2018, noted that, in such a case, in order to be eligible for the Napsi allowance, the employee must prove the just cause of the resignation and, therefore, that the transfer was not supported by technical, organisational and production reasons.
In upholding the worker’s appeal, the Court of Turin disregarded INPS’s practice also in light of the reference legislation, i.e. Italian Legislative Decree No. 22/2015.
In fact, in the Court’s view, the fundamental requirement for access to the Naspi treatment (in addition to employment and contributions) is the involuntary loss of employment. According to the judges, in order to assess whether the worker has ‘involuntarily lost his/her job’, it is necessary to ascertain whether the decision to resign is the result of a spontaneous and voluntary decision by the worker or induced by significant changes in working conditions resulting from the transfer to another location imposed by the employer.
According to INPS, this requirement is deemed to be met when there is a mutual termination of the employment relationship resulting from the worker’s refusal to transfer to another office of the same company that is more than 50 km away from the worker’s residence or can be reached on average in more than 80 minutes by public transport. On the other hand, a resignation that the worker claims took place for just cause following a transfer to another company location is eligible for the Naspi allowance, provided that the transfer is not supported by ‘proven technical, organisational and production reasons’ provided for in Article 2103 of the Italian Civil Code. Therefore, in the event of resignation, the worker will be able to access the Naspi only if he accompanies the relevant application with documentation (such as a declaration in lieu of affidavit pursuant to Articles 38 and 47 of Italian Presidential Decree No. 445/2000) showing at least his/her willingness to defend himself in court against the employer’s unlawful conduct (enclosing letters of summons, claims, complaints, writs of summons, urgent applications pursuant to Article 700 of the Italian Code of Civil Procedure, as well as any other suitable document), undertaking to notify the outcome of the judicial or out-of-court dispute.
Based on the foregoing, therefore, the lower court judge found that the same institution, in guaranteeing the Naspi treatment in the case of mutual termination, implicitly confirms that the transfer to another location 50 km away from the usual location or within 80 minutes by public transport entails a significant change in working conditions.
Therefore, the worker’s decision to resign after having undergone a transfer of that nature, irrespective of the lawfulness or otherwise of the employer’s organisational choice, must be considered to be an involuntary choice of the worker that led to the decision to resign and, therefore, entailed an ‘involuntary loss’ of employment.
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