The court may recognise different solutions for identical cases
To exclude the proportionality of dismissal, it is not enough to argue that similar conduct committed by other employees has been sanctioned with conservative measures. The court may recognise different solutions for identical cases.
This principle was upheld by the Court of Cassation in Order no. 22115/2022 of 13 July 2022, which confirmed the legitimacy of an employee’s dismissal for having caused an accident while driving his service vehicle. The accident was caused by the incorrect positioning of the front-mounted crane, which damaged a bridge located on a provincial road.
In this case, the employer company considered the accident a serious breach of contract. In addition, the employee failed to fill in a compulsory parking disk and tachograph, which attests to the vehicle speed. The company terminated his employment without notice.
The Bologna Court of Appeal confirmed the dismissal was legitimate and commensurate based on the conduct’s seriousness and severe damage of the bond of trust.
The worker appealed to the Court of Cassation against this decision, claiming that the local court, when confirming the dismissal’s legitimacy, considered it irrelevant to compare the case to the treatment given by the company to other employees who committed similar conduct. The worker referred to previous case law where such” situations can remove the dismissal of its justificatory basis” (Court of Cassation ruling no. 14252/2015).
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In its ruling no. 20 of 27 May 2022, The Court of Udine stated that absence from work without providing any justification to force the employer to dismiss for unjustified absence, is unlawful. Such conduct constitutes resignation by facta concludentia, even without complying with the electronic procedure.
The Court ruled that a worker who did not carry out the procedure, absented herself for several days to force her employer to dismiss her for unjustified absence to obtain NASPI had conducted unlawful behaviour. The Court held that the conduct of the employer who notified the employment centre of the worker’s resignation, thus depriving her of her right to unemployment benefits, was correct.
The employment termination must be out of the worker’s control, for example in cases of disciplinary dismissal, to obtain the NASPI payment.
This is the reason for the unlawful practice by certain employees of voluntarily and unjustifiably absenting from work to be dismissed for just cause and receive unemployment benefits.
The Court stated that the electronic procedure under Art. 26 Legislative Decree no. 151/2015, while having the objective of ensuring the authenticity of the resignation submitted by the worker and allowing them to be free from conditioning, did not abrogate the effects of Articles 2118 and 2119 of the Italian Civil Code, which offered the worker the opportunity to resign “de facto” by conduct through a series of workplace absences.
The Court of Udine’s interpretation allows employment termination by conduct; a requirement included in the delegated law no. 183/2014 which remained unimplemented in Legislative Decree no. 151/2015. If the worker does not act in submitting a formal resignation – which has already factually occurred – the employment termination cannot be achieved only by dismissal for just cause.
Such a solution would be “unreasonable” and “of dubious constitutional compatibility” and contrary to the principles of reliance and good faith in an objective sense. A dismissal “imposed” on the employer would give rise to a public benefit disbursement to the dismissed person to protect a fictitious unemployment. This unemployment resulted from free choice and not involuntarily suffered by the worker.
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In its order no. 22115 of 13 July 2022, the Court of Cassation stated that the Court’s assessment of similar situations for evaluating unreasonable inequality can only be based on allegations present in the case, such as to allow an investigation and a viable comparison.
A worker was dismissed because of an accident with his service vehicle. A vehicle with a crane on top, driven by the employee, crashed against a provincial road bridge beam due to its incorrect positioning.
The company dismissed him for just cause. It claimed that the worker’s serious misconduct caused the accident and that he failed to fill out the compulsory parking disk and the tachograph, which attested to the vehicle speed.
The Court of first and second instance declared the dismissal lawful.
Objecting to the trial court ruling, the worker appealed to the Cassation Court, with a single ground of complaint. According to the worker, the Court of Appeal did not consider the different treatment of other employees for similar breaches.
In support of his argument, the plaintiff referred to the principles expressed by the Court of Cassation according to which “even if it is irrelevant for the existence of just cause or justified reason for dismissal, that a similar breach committed by the another worker was assessed differently by the employer, and if the worker’s breach irreparably compromised the fiduciary relationship, those situations may remove the dismissal of its justificatory basis” (see Court of Cassation ruling no. 14251/2015; Court of Cassation ruling no. 5546/2010; Court of Cassation ruling no. 10550/2013).
The Court of Cassation pointed out that the rulings cited by the plaintiff supporting his case made it clear that “the employer could not be required to provide a statement of dismissal reasons compared to others taken in similar cases (see Court of Cassation ruling no. 5546/2010). However, where the differences justifying the different treatment of workers did not emerge during the proceedings, the Court may consider other solutions for the same cases to assess the proportionality of the penalty.”
In the Court’s view, any inequality must emerge during the proceedings through significant elements that do not require a related identification by the employer to justify the different treatment.
Based on these principles, the Court considered that the plea as formulated by the employee lacked the necessary indications that should have been attached in the trial proceedings. The Court dismissed the action brought by the worker and ordered him to pay the legal costs.
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In its ruling no. 183 filed on 22 July 2022, the Constitutional Court called on Parliament to amend Art. 9 of Italian Legislative Decree 23/2015 which covered the system of protection for cases of unlawful dismissal in companies with less than 15 employees.
The Rome Court of First Instance, acting as employment tribunal, by order of 26 February 2021, raised issues of constitutional legitimacy concerning Art. 9, paragraph 1, of Legislative Decree no. 23/2015 which covered the system of protection for cases of unlawful dismissal in companies with less than 15 employees. The provision was censured only in the part where it states “where the employer does not reach the size requirements set out in Article 18, paragraphs 8 and 9, of Law no. 300 of 1970, … the allowances and the amount under Article 3, paragraph 1, … is halved and cannot exceed the limit of six months’ salary.”
The Court ruling on an appeal brought by a worker dismissed for objective justified reason by an employer that did not reach the threshold of 15 employees, claimed that the existence of the justified reason had not been demonstrated. The Court found that the worker’s indemnity is to be identified “in the narrow range between the minimum of three and the maximum of six months’ pay.” This would be unsuitable “to meet the adequacy requirement and guarantee the recognition of a bespoke compensation.”
The Court argued that the provision was contrary to Articles 3, paragraph 1), 4, 35, paragraph 1) and 117, paragraph 1) of the Constitution, the latter in relation to Art. 24 of the European Social Charter. In its opinion, the distinction between protections based on the employer’s employment requirements is based “on an element that is external to the employment relationship.” Protecting the right to work, which would limit the employer’s power of termination, could be entrusted to a monetary mechanism, provided that the overall adequacy of the compensation, under the Article 24 of the European Social Charter.
The Court believed that “such a small compensation“, not exceeding six months’ salary and without “the alternative of re-hiring“, did not adequately balance any conflicting interests. Art. 24 of the European Social Charter requires fair compensation or appropriate redress in cases of dismissal without a valid reason. This effectively prohibits any predetermined maximum limit, which separates the compensation from the damage suffered and is not sufficiently dissuasive.
The Court of First Instance observed that the “compensatory function” and the “deterrent effectiveness of compensation protection” would be compromised (…) by an indemnity “falling within a range of between three- and six-months’ salary”, which would represent “an almost uniform form of protection” and would end up attributing sole importance to “the number of employees.” This would be a “negligible criterion in the current economic situation”, which would not allow any adjustment of the amount to the specific case and, particularly, the “breach seriousness”, to the more significant criterion of the company size, linked to the “financial data obtainable from financial statements.”
The Constitutional Court stated that the referral by the Court of Rome concerning the compensation under Art. 9 of Italian Legislative Decree 23/2015 was inadmissible for unlawful objective justified reason dismissals in companies with less than 15 employees.
However, it recognised that the framework outlined in Law no. 23/2015 profoundly changed from that analysed by its most recent rulings.
In the Constitutional Court’s opinion, reinstatement was limited within peremptory cases for employers, and the company size was not a distinguishing criterion between applying the more effective protection and granting a pecuniary compensation.
In the Constitutional Court’s opinion, when a system hinges on financial protection, the situation of small companies cannot justify a disproportionate sacrifice of the worker’s right to obtain adequate compensation for the prejudice suffered. The narrow gap between a minimum of three and a maximum of six months’ salary “defeats the need to adjust the amount to each case, to provide adequate compensation and effective deterrence, which considers the relevant criteria set out in the rulings of this Court and contributes to configure the dismissal as a last resort.”
The Constitutional Court pointed out that technological evolution and production process transformations meant that a small number of employees could be matched by significant capital investments and business volume. The criterion focusing only on the number of employees does not meet the requirement of not burdening with disproportionate costs production and organisational realities which are unable to sustain them. The Court stated that the uniform and closed limit of six months’ salary refers to various activities with the number of workers employed as a shared element, which has no significant value per se.
In conclusion, the Court acknowledged “the existence of the damage reported by the referring party (alias the Court of Rome).” It emphasised “the need for the legal system to provide appropriate remedies for unlawful dismissals by employers who have the number of employees as a shared element.”
However, this damage cannot be remedied by the Court, since it is “within the legislature’s overriding discretion to choose the most appropriate means to achieve a constitutionally necessary end, as part of “legislation of essential importance” (…), because of its connection with worker rights, a choice which projects its effects on the economic system.”
In concluding, the Court declared that it could not refrain “from pointing out that a further continuation of legislative inertia would not be tolerable and would induce the Court, if it were again called upon to do so, to provide directly, despite the difficulties described here (…).”
This is a clear invitation to the legislature to revise Art. 9 of Italian Legislative Decree 23/2015, failing which the Constitutional court will be forced to intervene.
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The Court of Cassation ruled on an employee’s appeal challenging his disciplinary dismissal for a traffic accident while driving a company vehicle, claiming unequal treatment with colleagues who had not suffered such a penalty in similar situations. The Supreme Court declared the appeal inadmissible and stated that for an unreasonable inequality assessment, the possible consideration of similar situations must be based on allegations present in the case, allowing a comparison
The case submitted to the Court of Cassation concerned an employee who challenged in court his disciplinary dismissal for having caused a road accident by damaging the bridge on the provincial road while driving his company vehicle.
A vehicle with a crane on top, driven by the employee, crashed against a provincial road bridge beam due to the crane incorrect positioning.
The employer company considered the accident a serious breach of contract. In addition, the employee failed to fill in a compulsory parking disk and tachograph, which attests to the vehicle speed. The company terminated his employment without notice.
In ruling no. 469/2019, the Court of Appeal of Bologna, rejected the complaint lodged by the employee against the Court of Ferrara decision which declared the employee dismissal lawful, due to the accident.
The local Court held that the dismissal was lawful, given the conduct seriousness which severely damaged the bond of trust, and considered the dismissal proportionate.
The employee challenged the ruling, appealing to the Court of Cassation, with a single ground of complaint, alleging unequal treatment with other colleagues who had engaged in similar conduct without being dismissed.
The appellant pointed out that the local Court had not considered the objection raised on the different treatment reserved to other employees for similar misconduct.
The worker referred to Court of Cassation principles according to which “ even if it is irrelevant for the existence of just cause or justified reason for dismissal, that a similar breach committed by another worker was assessed differently by the employer, and if the worker’s breach irreparably compromised the fiduciary relationship, those situations may remove the dismissal of its justificatory basis” ” (Court of Cassation ruling no. 14251/2015; Court of Cassation ruling no. 5546/2010; Court of Cassation ruling no. 10550/2013).
To better understand the reasoning behind the Court of Cassation’s decision, it is appropriate to mention the legal principle invoked by the appellant worker.
According to the Court of Cassation ruling no. 14251/2015, the Supreme Court’s well-established case law, states that, it is irrelevant for the existence of just cause or justified reason for dismissal, that a similar breach committed by another worker was assessed differently by the employer, if the worker’s breach irreparably compromised the fiduciary relationship.
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