In its order no. 25287 of 24 August 2022, the Court of Cassation ruled on monitoring carried out by the employer and confirmed the legal principles within which the employer may use a detective agency.
This case involved a worker dismissed because he was accused of leaving the workplace repeatedly during working hours, for activities unrelated to his job (the contract allowed a certain workplace and time flexibility). This came to light as part of a broader investigation concerning the violation of leave under Art. 33 of Law no. 104/92 by a colleague which involved the appellant who had been reprimanded several times.
While the investigation on the other employee was lawful, the surveillance carried out on the employee in question was outside the detective agency remit.
According to the Supreme Court, the external monitoring must be limited to the employee illicit acts that are not attributable exclusively to the breach of an employment contractual obligation. In other words, to operate legally, detective agencies must not monitor work performance. Under the law, work performance monitoring must be carried out directly by the employer and its employees using audio-visual equipment and other monitoring tools.
Please note that internal work performance monitoring must follow legal limits.
The key provision is Art. 4 of the Workers’ Statute (Law 300/1970). Under this provision, information collected through monitoring can be used for employment relationship purposes, including disciplinary. However, certain criteria and “guarantee procedures” must be followed for them to be lawful.
Adequate information must be provided to the worker on the methods used to carry out monitoring. If audio-visual equipment or other monitoring tools are used, information must be provided on tools use and monitoring methods.
Under the last paragraph of Article 4, for the collected information to be usable for employment relationship purposes, personal data protection legislation, i.e., Regulation (EU) 2016/679 and Legislative Decree 101/2018, must be followed.
This allows the company, employer and data controller under the data protection legislation, to use the information collected and avoid incurring a heavy GDPR penalty for unlawful personal data processing.
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A disputed written dismissal notice cannot be proved by witnesses, according to the Court of Cassation ruling no. 26532/2022. The dismissal is null and void for a lack of the required legal format
In its order no. 26532 of 8 September 2022, the Court of Cassation stated that the power attributed to the Employment Tribunal to admit ex officio any means of proof, including those outside the limits established by the Italian Civil Code, cannot apply to the written format required ad substantiam for the dismissal letter. Witness evidence of a contract or unilateral deed that is legally required to be in writing under penalty of nullity is not permitted. There is only one exception under Art. 2724 no. 3 of the Italian Civil Code, which is when the document has been lost unintentionally. According to the trial Court, based on a public order rule, a witness is inadmissible including ex officio at any proceedings stage and level.
Before analysing the ruling and its place in relevant case law, we will mention the legal provisions applicable to the case examined.
As an exception to the general principle of format freedom, the legal system requires several formal, procedural and substantial employer obligations. Dismissal must be notified in writing and the notice must specify the grounds. This is required by Art. 2 of Law no. 604/1966, as amended in 1990, and by the Fornero Law. The legislation does not require customary formats, if the will is clear and unambiguous.
The dismissal is required to be in writing ad substantiam and, since it is a unilateral reception act, must be received by the employee to be effective (Art. 1334 of the Italian Civil Code). This is based on the presumed knowledge at the time of delivery to the recipient’s address, unless there is proof of a blameless impossibility of knowledge (Art. 1335 of the Italian Civil Code).
The dismissal notice may be hand delivered in the workplace and treated as such even if the employee refuses its reception. According to the Court of Cassation, “The recipient’s refusal of the dismissal notice in the workplace does not preclude the communication from being considered as delivered, since it is a unilateral reception act which is under the general principle that the recipient’s refusal cannot be to the detriment of the obligor and the presumption of knowledge rule under Art. 1335 of the Italian Civil Code” (Court of Cassation, ruling no. 21017/2012).
Under Art. 2725 of the Italian Civil Code, called “Deeds for which proof in writing or written format is required”, under the law or the parties’ will, a contract must be proved in writing, evidence by witnesses is admitted only in the case under no. 3 of Art. 2724 of the Italian Civil Code.
The same rule applies in cases where the written format is required under penalty of nullity.
Under Art. 2724 no. 3, of the Italian Civil Code, evidence by witnesses is admissible “when the contracting party unintentionally lost the document that provided proof.”
Art. 421 paragraph 2, first part, by which the Employment Tribunal “may order ex officio the admission of any means of proof, even outside the limits established by the Italian Civil Code.”
The Court of Appeal of Florence dismissed the complaint brought by the employer company against the Court of Florence’s ruling. The latter declared the ineffectiveness of an oral dismissal of an employee on 8 September 2017, ordered the worker’s reinstatement and the employer to pay compensation for damages amounting to her last full salary, less earnings from other sources, plus social security and welfare contributions, and any additional sums;
The local Court upheld the Court of First Instance’s ruling, which upheld the order at the summary proceedings, on the grounds that the company did not prove it had complied with the written format required ad substantiam, and that the evidence by witness acquired during the first instance proceedings was inadmissible.
The Court of second instance stated that the issue disputed was not that the employee, classified as a manager, was dismissed at a meeting held on company premises on 8 September 2017, in the presence of the CEO and two employees, but the written format of the employer’s termination and the notification method.
Applying the principles expressed in the Supreme Court’s ruling no. 11479/2015, a precedent was considered significant given the similarity of some of the facts (oral dismissal challenged by the employee, while the employer claimed the dismissal notice was hand delivered, which must be proven by witnesses). the Court of Appeal noted that if the dispute refers to the dismissal letter reception by the employee at the time of dismissal, that notification method cannot be the subject of oral evidence because the testimony would contain oral evidence of a document for which the written format is required ad substantiam. Furthermore, the oral evidence prohibition under Art. 2725 of the Italian Civil Code on documents which are legally required in written format under penalty of nullity, cannot be rebutted by exercising the Employment Tribunal’s investigative powers.
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The selective criterion based on the number of employees is unsuitable to legitimise a diversification of the consequences of null dismissal
If the nullity of dismissals for exceeding the protected period is confirmed, the special penalty regime under paragraph 7 of Art. 18 of the Workers’ Statute applies. This includes the reinstatement, regardless of the number of workers employed.
In its ruling no. 27334 of 16 September 2022 , the Court of Cassation tackled the complex issue of the choice between compensation and reinstatement, to be granted to an employee unlawfully dismissed at the end of the protected period, i.e., the time during which they are entitled to keep their job during illness.
In the case examined by the Court of Cassation, a worker took legal action against her employer (a company with less than 15 employees) which dismissed her for exceeding her protected period. She requested work reinstatement and damage compensation.
The Courts of first and second instance, found that the dismissal was null and void, excluded the days of absence due to an accident at work from the protected period calculation, however they ordered different types of protection.
The first instance Court ordered reinstatement, while the Court of Appeal ordered compensation, as paragraph 7 of Art. 18 of Law no. 300/1970 is applicable exclusively to employers with more than 15 employees.
Overruling the decision of the Court of Appeal, the Supreme Court ruled that dismissal for exceeding the protected period under Art. 2110, paragraph 2) of the Italian Civil Code is a unique case of dismissal (unrelated to the concept of justified reason under Art. 3 Law no. 604/66). The violation of this article entails the dismissal’s definitive nullity.
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In the recently approved Aiuti ter decree, there is a squeeze on provisions applicable to employers with more than 250 employees who intend to lay off at least 50 employees, due to branches or plant closure as part of a definitive business termination.
De Luca & Partners managing partner lawyer Vittorio De Luca, said: “The government’s decision was likely to be dictated by the clouds looming internationally and within the Italian production system, due to the energy crisis and the increase in raw material costs.”
The period in which the employer must discuss the plan to limit the employment and economic fallout from the closure with trade union representatives and in the presence of the Ministry of Labour was extended to 90 days.
De Luca said: “If production or a significant part of it is definitively terminated, companies will have to return any subsidies, grants or financial aid received ten years before starting the procedure.” When a possible recession is announced, it becomes necessary to reform social safety nets and active labour policies organically to limit an explosion of redundancies.”
In its order no. 25287 of 24 August 2022, the Court of Cassation ruled on remote controls carried out by the employer and confirmed the legal principles within which the employer may use a detective agency. According to the Supreme Court, the employer may use a detective agency if offences have been committed or there is a suspicion that offences are being committed
The case submitted to the Court of Cassation concerns an employee who worked under a flexible work regime.
The worker was accused of having left his place of work, during working hours, for tasks unrelated to his job. A detective agency recorded meetings outside the place of work (supermarkets and gyms), unrelated to work, in places tens of kilometres away from the workplace. The worker was later dismissed.
The employee lodged a judicial appeal against his dismissal for having left his place of employment, during working hours, and for carrying out tasks unrelated to his job.
The Court of first instance and the Court of Appeal of Rome held that the checks carried out by a detective agency were lawful. The checks related to the position of a bank employee since his employment required stricter compliance with the obligation of loyalty and the related rules of diligence and fairness. These checks were part of a broader investigation into the worker concerning the violation of leave under Art. 33 of Law no. 104/92 by a colleague which involved the appellant who had been reprimanded several times.
The local Court considered the findings relating to the failure to comply with the obligation to deliver the documentation requested by the worker and the untimeliness of the charge notification unfounded.
The worker challenged the decision, appealing to the Court of Cassation, based on four grounds. We will focus on the first three.
In the first ground of appeal, under Art. 360 no. 3 Italian Code of Civil Procedure, the worker alleged violation and false application of Articles 2, 3 and 4 of Law no. 300/1970 (“Workers’ Statute”) on work performance monitoring by an external detective agency. He stated that such monitoring must be limited to unlawful acts not attributable to the worker’s failure to fulfil their obligations. His argument was that such surveillance could not become work supervision since this task must be performed directly by the employer and its employees under Art. 3 of the Workers’ Statute.
In his second ground of appeal, the appellant alleged failure to examine a decisive fact about the unlawful monitoring of work performance and working conditions by an external detective agency. He argued that the Court of Appeal failed to consider that the employer’s informants were instructed to verify work performance and monitored the employee beyond normal working hours, checking in detail the way work was carried out.
In his third ground of appeal, under Art. 360 no. 3 Italian Code of Civil Procedure, the worker alleged violation and false application of Articles 24 of the Constitution and 7 Law no. 300/70, highlighting the violation of the worker’s right of defence and failure to apply the guarantees imposed by the Workers’ Statute. He argued that the Court of Appeal failed to admit the submission of the documentation requested by the appellant, consisting of the personal file, annual profit assessment certificates, attendance sheets from September 2015 to July 2016, and the mandate signed with the detective agency.
The Court of Cassation mentioned Articles 2 and 3 of Law no. 300/1970, which restrict the action of those appointed by the employer (to defend its interests, and protect the company’s assets) – Art. 2), and work performance supervision – Art. 3). These protect the worker’s freedom and dignity, consistently with constitutional provisions and principles.
The Court of Cassation pointed out that the above rules do not preclude the entrepreneur using external parties, such as a detective agency. However, this control cannot concern the performance or non-performance of the worker’s contractual obligation to perform their work, since these activities cannot be under this kind of supervision (Court of Cassation ruling no. 15094 of 11 June 2018).
External controls must be limited to the worker’s wrongful acts that cannot be traced back to the non-performance of the obligation (see Court of Cassation ruling no. 9167 of 7 June 2003).
The Supreme Court stated that detective agencies, to operate lawfully, cannot supervise work performance and this principle had been established under cash law. Under Art. 3 of the Workers’ Statute, this task is directly assigned to the employer and its employees.
Using a detective agency is justified if offences had been committed and needed to be verified, even when there is a suspicion that offences are being committed (Court of Cassation ruling no. 3590 of 14 February 2011).
The Court of Cassation ruling no. 15867 of 26 June 2017, stated that “if the employer is precluded from directly or indirectly controlling the work performance, the principle does not apply in cases where workers carry out impermissible conduct outside their normal work. The control is justified if offences had been committed and needed to be verified, and when there is a suspicion that offences are being committed (see Court of Cassation, labour Section ruling 14/2/2011 no. 3590: “The provisions of Art. 2 of the Workers’ Statute, in limiting the actions of those appointed by the employer to protect the company’s assets, do not preclude it from resorting to detective agencies, if they do not supervise work performance. Under Art. 3 of the Statute, this task is carried out directly by the employer and its employees. The service described above is justified if offences had been committed and the needed to be verified or if there is a suspicion that offences are being committed”; (Court of Cassation ruling 20/01/2015 no. 848 and Court of Cassation, ruling 11/10/2016, no. 20433).“
Controls outside these limits are precluded by the principle of good faith and the prohibition under Art. 4 of the Workers’ Statute, in the ratione temporis applicable wording, which includes the prohibition of secret work performance checks, even if work is performed outside company premises. This is without prejudice to cases where private investigators may verify conduct constituting criminal offences, such as, exercising paid services for third parties during working hours.
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