The new reporting obligations for workers that will come into force with the Transparency Directive (2019/1152) will apply to business relationships with a predominantly personal service, long-term consultancies, occasional service contracts and temporary employment.
New obligations for employers and principals with the Transparency Directive, 2019/1152. The changes in the draft legislative decree were approved by the Council of Ministers on 22 June and are awaiting publication in the Official Gazette to become effective.
Amending the current legislation, represented by Legislative Decree no. 152/1997, new information obligations are introduced for employers, which apply to new employees, and existing relationships if requested by the worker.
In addition to employment relationship information (such as, contract type, employer name, office location, relationship start and end date, probationary period, if any, and worker classification), the employer must provide the worker with information that was previously provided by the national collective agreement or applicable legislation. This made the employment contract more streamlined and flexible and includes subsequent changes in collective bargaining. With the decree’s entry into force, it will not be enough to refer to the collective agreement and a detailed listing of clauses and provisions will be needed. For example, the duration of holidays and any further paid leave to which the worker is entitled, the duration of the notice period and the relevant procedure in case of dismissal or resignation.
Continue reading the full version published on Il Quotidiano del Lavoro of Il Sole 24 Ore
In ruling no. 13063 of 26 April 2022, the Court of Cassation extended the scope of application of the reinstatement protection to cases where the contested fact is found to exist and is not among the offences punished by the sector’s collective agreement with a conservative penalty.
The Supreme Court extended the scope of the court’s assessment of proportionality, two weeks after the pronouncement of ruling no. 1165 of 11 April 2022. This ruling confirmed the applicability of reinstatement in cases where the conduct charged to the employee, (although not expressly included in the list of offences punished by the collective agreement with a conservative penalty), falls within the scope through the interpretation, by the court, of the general or flexible clauses included in the relevant collective agreement.
In this way, the judge re-acquired a wide margin for assessment on the proportionality between the contested conduct and the announced dismissal, in the same way as before the Fornero reform, when reinstatement was applicable in cases of lack of proportionality between the contested fact and the dismissal.
The court is given the power to assess – by means of a comparative judgment – the seriousness of the charge laid against the employee in relation to the seriousness that, according to the assessment, should be conferred to any of the other offences punished with a conservative penalty by the collective agreement.
The consequence is that, in this way, a new profile of uncertainty is reintroduced that concerns the interpretation outcome of the collective bargaining provisions, which are often generic and imprecise, and the outcome of the proportionality assessment between the conduct alleged against the employee and the list of offences set out in the relevant collective agreement.
Other related insights:
With its order no. 16975 of 25 May 2022, the Court of Cassation intervened on the single company attribution in employment relationships, outlining the indicators.
In a ruling following a complaint under Law no. 92/2012, the local court found that the dismissal of an employee (i.e., the alleged divestiture of the hotel business) lacked a justified objective reason. Instead, the court found a single company attribution due to the relation between the formal employer and other affiliated companies and the applicable protection measure.
The Court of Appeal established that the contract for the provision of certain services stipulated between two companies was unlawful since the companies had the same registered office, corporate purpose and owner. It found the elements of corporate connection related to features and purposes had gone beyond a synergy between affiliates but represented a co-mingling of means and activities, which implies a substantial subjective unity.
After the workers employed in the affiliated companies were reviewed, the local court considered the manifest lack of the reason for the dismissal, and ordered the companies jointly and severally to reinstate the employee and pay her an indemnity of 12 months’ salary under art. 18, paragraphs 4 and 7 of Law no. 300 of 1970.
One of the affiliated companies appealed against the local court’s ruling in cassation, arguing that there was no connection and control between them under art. 2359 of the Italian Civil Code, nor a case of joint employers, since the employee worked exclusively for one company.
The Supreme Court, rejected the company’s appeal and ruled that the Court of Appeal conducted a careful examination of the facts of the case. This established the fictitious nature of the service contract (which turned out to be a mere labour contract) and the existence of a single company attribution, without finding any flaws in the legal logic of the case which were raised by the appellant company.
Based on its well-established case law, the Court of Cassation outlined the criteria and indicators to identify the single company attribution, namely:
The Court clarified that the financial-functional connection between enterprises managed by companies of the same group did not entail the lack of “independence of the individual companies which have separate legal status. They continue to be responsible for the employment relationships of personnel working at each company.” However, the obligations arising from an employment relationship can be extended to the individual companies, identifying a single company attribution where, as in this case, “the court, by examining the individual companies”, adequately proved that there was a simulation or conduct breaching the law when splitting a single business.
As for the objection relating to the failure to establish the excessive onerousness of workplace reinstatement, despite the manifest lack of the fact on which the dismissal was based, the Court of Cassation, pointed out that the Constitutional Court declared art. 18, paragraph 7, second sentence, of Law no. 300/1970 constitutionally illegitimate (for violation of art. 3 of the Constitution), as amended by art. 1, paragraph 42, letter b) of the Fornero Law, where it provided that the court, when it finds that the fact underlying the dismissal for objective justified reason was manifestly unfounded, “may apply” – instead of “shall apply” – the rules set out in art. 18, fourth paragraph (see ruling no. 597/2021). The Court of Cassation emphasised that the Constitutional Court rulings produce the annulment of the provisions of the law declared unconstitutional, with erga omnes effects, not only ex nunc, but ex tunc, with the sole limitation of the pre-defined relationships. Since this did not occur, in the Court of Cassation’s opinion, the reinstatement measure must be considered correctly applied (based on the combined provisions of paragraphs 7 and 4 of art. 18 of Law no. 300/1970) in the face of the established manifest lack of the reason for the dismissal (i.e., the divestiture of the hotel business).
Other related insights:
With the recent ruling no. 181 published on 27 April 2022, issued as part of the Fornero Procedure opposition proceedings, the Court of Vicenza expressed its opinion on whether absences due to illness attributable to the employee’s disability can be included (or not) in the protected period.
The case originated from the dismissal of an invalid employee for having been absent due to illness for a period exceeding 365 days in the last three years, thus exceeding the protected period governed by the Agidae social-assistance collective labour agreement applicable to the employment relationship.
The employee, challenging the dismissal, objected to its discriminatory nature on grounds of disability, asking the Judge to declare it null and void.
In support of her argument, the employee invoked the Community legislation on direct and indirect discrimination (EU Directive 2000/78/EC) and rulings of the European Court of Justice on the subject, arguing that the employer was obliged to adopt “reasonable accommodations” to “guarantee persons with disabilities full equality with other employees.” This means the employer should have excluded from the protected period calculation the days of absence attributable to “endometriosis”, which was her declared disability, to avoid exceeding the protected period.
The Court, confirmed the order made during the summary proceedings and rejected the employee’s opposition based on several arguments.
While it is undeniable the European Court of Justice found indirect discrimination against the disabled in the way absences due to illness were calculated, since the disabled employee was subject to a greater risk of accumulating sick days, it is equally true that the conclusions reached by the European Court cannot be applied to every disabled person’s dismissal.
This is because it is up to the national court to establish whether the employer has ensured “reasonable accommodation” for equal treatment and verify the legitimacy of the purpose pursued by the national legislation.
During the proceedings, the Court found that the employer had adopted numerous “reasonable accommodations” in favour of the employee, including undergoing medical examinations which determined the employee’s fitness for the specific task.
The Court expressed the need to weigh the legally relevant interests of the parties, i.e., the disabled person’s interest in maintaining a job suited to her physical and mental condition and the employer’s interest in obtaining a useful service for the company, considering that Art. 23 of the Constitution prohibits welfare benefits, including those at the employer’s expense, unless provided for by law.
Continue reading the full version published in Norme & Tributi Plus Diritto of Il Sole 24 Ore.
In ruling no. 9800 of 25 March 2022, the Court of Cassation ruled that – if the notice referred to in Art. 4, paragraph 9, Law no. 223/1991 for the collective dismissal procedure does not correctly specify the criteria for the selection of the workers concerned, the procedure is unlawful and, consequently, the dismissal must be annulled.
The Court of Appeal of Reggio Calabria, reforming the first instance ruling, declared the collective dismissal announced by the employer company to the appellants by means of a notice under art. 4, paragraph 9, Law 223/1991, unlawful.
The local Court declared the employment relationship between the parties terminated, ordering the company to pay an indemnity of 12 months’ salary of the last full salary. This was because the dismissal notice was vitiated by a breach of form and failed to specify points awarded to each worker and the factual data relating to dependent family members, the abstract points provided for each criterion and each worker’s seniority data.
Six of the original workers appealed against the decision on four grounds, with the company responding with a counter-appeal. The public prosecutor concluded that the first grounds of appeal should be upheld and absorbs the others.
According to the Court of Cassation, the failure to specify in the notice, under art. 4, paragraph 9, Law no. 223/91, the criteria for choosing the workers to be dismissed did not allow the worker to understand why they were dismissed and not other colleagues. It stated that this hindered any challenge to the employer’s termination. That would entail a case of procedural unlawfulness since that failure would not constitute a mere formal non-compliance but would entail a breach of the selection criteria.
In the Court’s opinion, the unlawfulness could only lead to the dismissal annulment and the consequent ordering the employer to reinstate the employees and pay an indemnity not exceeding 12 months’ salary of the last full salary, under art.18, paragraph 4, of the Workers’ Statute.
Other related insights:
