“With the imminent conversion into law of the Italian Milleproroghe Decree, the extension of the deadline for entering into a fixed-term contract beyond 12 months, by agreement between the parties, is on its way. The extension granted by the decree will be from 30 April to 31 December 2024 and it will temporarily extend the period in which companies can extend fixed-term contracts up to a total of 24 months, if there are explicit technical, organisational or production needs”, Vittorio De Luca, lawyer and managing partner at De Luca & Partners, explains to Adnkronos/Labitalia.
“The purpose of the provision – explains Mr De Luca who is an expert in this field – is to give the stakeholders more time to adapt the collective bargaining agreements very few of which, for the time being, have introduced provisions on the reasons justifying fixed-term contracts, leaving many production sectors uncovered. In fact, as is well known, the latest amendment to the regulations governing fixed-term contracts was introduced by the Italian Employment Decree (Decree-Law no. 28/2023), which, by reformulating Article 19 of Italian Legislative Decree no. 81/2015, established an innovative regime in the event of continuation of the fixed-term contract beyond the term of 12 months”, he explains.
“The current version of the provision states that, after the first 12 months – for which no reason is required – the fixed-term relationship can continue (up to 24 months) only for the replacement of workers and in the cases provided for by collective bargaining. In the absence of provisions in collective bargaining agreements, on a temporary basis until 30 April 2024 (now extended to 31 December) technical, organisational or production reasons identified by the parties will also be sufficient”, concludes Mr. De Luca.
Press release:
Employment relationship – Dismissal for just cause – Unlawfulness – Existence
The existence of wilful and negligent misconduct to the detriment of the employer company requires that the damage be a foreseeable consequence of the employee’s conduct. In light of this principle, the dismissal of an employee who, having been authorised to leave the workplace during working hours, stopped on the way to the market for a few minutes in the company car, was held to be unlawful. At that time, he was photographed and the photo was published on the social media site Facebook, gathering the indignation of several subscribers. Italian Court of Cassation, Employment Division, 6 December 2023, no. 34107. The Court of Cassation, Employment Division, with judgment no. 34107 of 6 December 2023 ruled that the dismissal of an employee who, having been authorised to go home in the company car to change his wet clothes, stops on the way to go shopping at the market is unlawful. In the context of the evaluations carried out by the local court and confirmed by the Court of Cassation, the filming and subsequent publication of the company car by an extraneous third party was irrelevant for the purposes of assessing the lawfulness of the dismissal. This triggered the indignation of social media subscribers. In fact, it had emerged in the course of the proceedings that the employee’s conduct, not constituting conduct committed wilfully or negligently to the detriment of the company, was to be classified as unauthorised absence from the workplace for the sole period of the stop at the market. The Court concluded that such a case, also in the light of the provisions of the collective bargaining agreement applicable in that instance, should have been sanctioned with a precautionary measure.
Read the full version in Modulo Contenzioso 24 de Il Sole 24 Ore.
On 28 December 2023, Italy joined the European Framework Agreement called “Framework Agreement on the application of Article 16 (1) of Regulation (EC) No. 883/2004 in cases of habitual cross-border Telework”.
Article 1 of the Framework Agreement defines “cross-border telework” as an activity that a worker carries out remotely in one or more Member States through the use of information technologies.
The agreement provides that cross-border teleworkers may be subject to the social security system of the Member State of the employer’s registered office, provided that the work carried out under the “teleworking” regime in the State of residence is less than 50% of the total working time.
This regime applies only if the worker’s State of residence and the one in which the employer has its registered office are both signatories to the Framework Agreement. Therefore, if those States have not signed such a Framework Agreement, the provisions of Article 13 et seq. of Regulation (EC) No. 883/2004, which provide for the application of the social security system of the Member State of residence if the worker carries out a substantial part of his or her activity in that State, apply.
Where the conditions set out in the Framework Agreement are met, to derogate from the general provisions established at European level regarding the identification of the applicable legislation, it will be necessary to initiate a special request procedure under Article 18 of Regulation (EC) No. 987/2009. This procedure must be undertaken before the competent authority of the Member State in which the employed worker asks to apply the legislation which, in the case of Italy, is the Italian National Social Security Entity (Istituto nazionale della previdenza sociale ‘INPS’).
Finally, it should be noted that requests submitted up to 30 June 2024 may retroactively cover a period of up to twelve months prior to that of the request.
There is no end to new initiatives on the subject of whistleblowing. While the provisions of Italian Legislative Decree no. 24 of 10 March 2023 are already in force for companies with 250 employees or more, for companies employing 50 to 249 employees this has only been the case since 17 December 2023, requiring them to equip themselves with whistleblowing systems. How does all this impact the work of specialised law firms?
We asked some of the firms that are supporting companies in complying with the law on the protection of persons who report breaches of national or EU regulatory provisions. Six months after its entry into force, De Luca & Partners’ dedicated task force has analysed companies’ actual application of the rule, and it emerges that they are still far from compliant with the provisions. “We notice a general tendency to underestimate the complexity of the activities to be carried out to comply with the provisions of the Whistleblowing Decree”, says Vittorio De Luca, managing partner of De Luca & Partners.
“Companies are lagging behind in carefully assessing which system, including IT systems, should be used to make reports, in full compliance with applicable privacy legislation. Not only that, but companies also need to ensure that the disciplinary code adopted is adequate to avoid frustrating disciplinary measures. And this is in a regulatory framework that establishes two particularly significant risks: a fine of up to EUR 50,000, and above all, failure to comply with the exemptions provided for by Italian Legislative Decree no. 231/01”.
The full version of the interview was published on ItaliaOggi7 of 19 February 2024.
By order no. 87 of 3 January 2024, the Italian Court of Cassation ruled on the applicability of reinstatement where the fact underlying the dismissal ordered for justified objective reasons did not exist.
At the end of the three instances of proceedings, the Italian Court of Cassation upheld the appeal brought by the dismissed employee, quashing the judgment of the Court of Appeal which had only granted the employee compensation amounting to 20 months’ salary.
The case originates from a worker’s dismissal by a cooperative company for a justified objective reason, based on the need for a company reorganisation and the consequent outsourcing of accounting activities (the department to which the worker was assigned).
The first instance Court had upheld the worker’s appeal, declaring the dismissal unlawful.
The Court of Appeal of Catanzaro, in agreement with the first instance Court, rejected the appeal lodged by the employer cooperative, on the ground that the latter had not proved the existence: (i) of the causal link between the reorganisation and the abolition of the job; (ii) the elimination of the department to which the worker had previously been assigned; (iii) the impossibility of the worker’s relocation.
On the basis of these assumptions, the Court of Appeal judges had ordered the employer to pay the worker compensation equal to 20 months’ salary.
The worker then appealed to the Italian Court of Cassation asking for reinstatement under Article 18, paragraph 7, Italian Law no. 300/1970 (so-called Workers’ Charter).
The Court of Cassation, in accepting the appeal filed by the worker, reiterated that the burden of proof regarding the existence of the conditions for dismissal for justified objective reasons is placed on the employer who can also resort to presumptions, with the exception that the burden is on the worker to prove the assignable posts (Italian Court of Cassation 20 October 2017, no. 24882).
With the ruling in question, the Court also addressed the issue of the “manifest” non-existence of the fact justifying, under Article 18, paragraph 7 of the Workers’ Charter, as amended by Italian Law no. 92/2012, the application of the mitigated obligation of reinstatement.
According to the Court, the assessment as to whether the fact is manifestly non-existent must be independent from the character of immediate evidence, “due to the fact that Article 18, paragraph 7, second sentence of Italian Law no. 300/1970, as amended by Article 1, paragraph 42, letter b) of Italian Law no. 92/2012, was declared constitutionally unlawful, for breach of Article 3 of the [Italian] Constitution, limited to the word ‘manifest’”.
The Italian Court of Cassation agreed with the ruling of the Court of Appeal of Catanzaro on the non-existence of the “organisational reorganisation used as the basis of the dismissal” as well as on the absence of proof of the impossibility of fulfilling the repêchage obligation (obligation to relocate). However, the Italian Court of Cassation concluded that, in the present case, the justified objective reason cited at the basis of the dismissal did not exist. The Court of Cassation criticised the compensation order stating that the Court of Appeal had disregarded over-riding legal principles in the light of the latest rulings on the requirement of “manifest” non-existence.
In summary, according to the Italian Court of Cassation, if there is no causal link between the employer’s dismissal and the justified objective reason adduced as its basis, there is a manifest non-existence of the fact that, as such, justifies ordering the employer to reinstate the employee.
