By judgement no. 15644 of 23 November 2022, the Administrative Court of Lazio clarified, among other things, that the employer is the only person entitled to install audiovisual systems that may enable remote control of the workers’ activity. The case originated from the request of a company providing transport services for others, which, according to the contract stipulated, should have installed video recording systems on its vehicles and make the images available to the client. Systems so devised, the decision states, would have been controlled by persons other than the employer, in contrast with the provisions of the applicable legislation. The Court notes that the reasons that justify the installation of the tools required to achieve such purposes, as indicated by Art. 4 of Law no. 300/1970 (the “Workers’ Charter”), i.e., (i) the protection of the company’s assets, (ii) the purpose of security and safety of personnel and (iii) the proper compliance with organisational and production needs, the Court notes, can only be referred to the employer.
By order No 770, of 12 January 2023, the Italian Court of Cassation ruled on the lawfulness of dismissal for just cause of a worker who, as part of her work performance, had not complied with the performance procedures set out in a specific company policy.
According to the Supreme Court, with regard to dismissal for just cause, the employee’s refusal to perform the services in the manner indicated by the employer is sufficient to justify dismissal for just cause, unless such refusal is based on good faith.
The facts of the case
In the case dealt with in the order in question, the worker – a supermarket cashier – had been fired for just cause for allowing three customers to pass through the tills leaving the products in the trolleys and for failing to ask them to put the goods on the conveyor belt as required by company regulations.
It was also claimed that the worker had failed to perform a direct check of the products in the trolley, limiting herself to recording on the cash register the quantities of each type of product indicated by the customers themselves.
The price paid by the three customers turned out to be, following the subsequent intervention of the police called by the security officer, significantly lower than the quantity of goods that were present in their trolleys.
The first instance judge considered the worker’s dismissal to be lawful, as she was guilty of negligent conduct.
The Rome Court of Appeal overturned the judgment issued in first instance, and, following the appeal brought by the Company, the matter was brought to the Italian Court of Cassation.
The Italian Court of Cassation’s Order
The judges of the Italian Court of Cassation, in confirming the lawfulness of the worker’s dismissal, analysed in detail the rules referred to in Article 1460 of the Italian Civil Code relating to the exception of non-performance, in this case, within the framework of an employment contract.
The Court noted that on the subject of one of the parties’ non-performance of an employment contract, previous rulings had considered that the employer’s non-performance does not automatically legitimise the employee’s refusal to perform.
As this is a contract for consideration, the provisions of Article 1460, paragraph 2, of the Italian Civil Code apply, according to which the performing party may refuse to perform the service at its own expense only if such a refusal, having regard to the concrete circumstances, is not contrary to good faith (Italian Court of Cassation, No 434 of 2019; Italian Court of Cassation, No 14138 of 2018; Italian Court of Cassation, No 11408 of 2018).
The court must therefore carry out a comparative evaluation of the opposing performances having regard also to their proportionality with respect to the financial-social function of the contract and their respective impact on the balance between the parties and their interests. This gives rise to the consequence that where the non-performance of one party is not serious or of little importance in relation to the interest of the other party, the latter’s refusal to perform its obligation cannot be considered to be in good faith and, therefore, is not justified under Article 1460, paragraph 2 of the Italian Civil Code (Italian Court of Cassation, No 11430 of 2006).
On the subject of dismissal for just cause, the worker’s refusal to perform the service in the manner indicated by the employer is capable, where not based on good faith, of causing the loss of confidence in the future performance. This in turn therefore justifies termination, since non-compliance with the employer’s measures, albeit unlawful, must be assessed, from a sanctioning standpoint, in light of the provisions of Article 1460, paragraph 2 of the Italian Civil Code, according to which the performing party may refuse to perform the service at its own expense only if such refusal is not contrary to good faith, having regard to the actual circumstances (see Italian Court of Cassation, No 12777 of 2019).
In the present case, according to the Italian Court of Cassation, the Rome Court of Appeal scrupulously adhered to the principles mentioned above in holding that:
In light of the above principles, the Court confirmed the unlawfulness of the worker’s dismissal with the application of the ‘mitigated’ reinstatement protection provided for by Article 18, paragraph 4, of Italian Law No 300/1970 (applicable to the present case).
Other related insights:
The Court of Milan, in judgment No 2652 of 11 November 2022, returned to the issue of the appealability of conciliation statements, ruling that in the absence of a res litigiosa (dispute), the minutes cannot be classified as settlement agreements, with the consequent potential ability to challenge the waivers contained therein.
The facts of the case
On the termination of a works contract, the workers employed on the contract were told that, if they wished to continue working for the successor contractor, they would have to sign conciliation minutes at the trade union offices, declaring, under Article 2113, paragraph 4 of the Italian Civil Code, that they no longer had any rights arising under the previous employment relationship.
The workers signed these conciliation minutes, waiving, among other things, claims for a higher classification on the basis of the tasks actually performed and the payment of the corresponding salary differences.
The signatory workers challenged the signed minutes, bringing an action before the employment court to obtain their annulment and, consequently, the ascertainment of the higher contractual classification level and an order against the company to pay the salary differences.
The Court of Milan’s judgment
The Court of Milan, in upholding the challenge brought by the workers, ascertained that the challenged conciliation minutes could not be considered to be a settlement agreement, since the agreements entered into by the parties lacked the essential element of a settlement agreement, i.e., the res litigiosa.
Under Article 1965 of the Italian Civil Code, a settlement is defined as a contract by which the parties, by making mutual concessions, put an end to a dispute that has already begun or prevent a dispute that may arise between them.
A reading of this provision shows, therefore, that the typical basis of the settlement is to resolve or avoid a dispute, with mutual concessions by the disputing parties.
Consequently, the Milan Court, on the basis of these principles also confirmed by the case law of the Italian Court of Cassation (amongst many see: Italian Court of Cassation No 8917/2016), found that, since the so-called res litigiosa did not in any way emerge from the agreements signed by the applicants, such agreements ‘cannot be classified as settlement agreements, but simply as documents regulating the conclusion of the relationship, without any preclusion on the bringing of legal proceedings’.
Altri insights correlati:
Settlement report: challengeable if signed with a union other than the employee’s union
Minutes of the conciliation meeting: voided if the worker has been deceived
The Italian Budget Law 2023 (Italian Law No 197/2022) was published in the Official Journal (Gazzetta Ufficiale) on 29 December 2022 and comes into force on 1 January 2023 and introduces the following important initiatives in the employment law field.
Agile working: as of 1 January 2023, the categories of workers with the right to agile working will be reduced. Until 31 March 2023, only so-called ‘vulnerable’ persons will have this right, workers with children under 14 being excluded.
Parental leave: an extra month of optional, 80% paid parental leave is introduced. The leave may be taken by either parent, alternatively, until the child is six years old.
Recruitment incentives for permanent contracts: for the whole of 2023, there will be incentives for the recruitment of permanent hires with a contribution threshold of up to EUR 8,000 for those who already have a fixed-term contract and in particular for women under 36 and for citizenship income recipients.
Productivity bonuses: as of 2023, the taxation of productivity bonuses will decrease from 10 per cent to 5 per cent. The preferential taxation applies to variable bonuses not exceeding EUR 3,000.
Temporary income: the possibility of using temporary employment services is extended by increasing the maximum limit of remuneration that can be paid by each employer from EUR 5,000 to EUR 10,000 per year. These temporary services may also be used for agricultural activities, as well as by employers with up to ten employees on permanent contracts, instead of five.
Vouchers: employment vouchers for temporary services are back, with a limit rising from EUR 5,000 to 10,000, for temporary services used in certain sectors, including agricultural activities, the hotel industry, personal care activities, and domestic work.
Pensions: there is a lot of news on the pensions front. The renewal for 2023 of the Early Pension (Anticipo Pensionistico – ‘APE Sociale’) and the extension of the Woman’s option 2023 (Opzione donna 2023) are confirmed, the latter with some limitations on the prerequisites with respect to the original measure (only for caregivers, women with disabilities and employees of companies in crisis). Introduction of the new ‘Quota 103’ whereby the pension prerequisite is reached at the age of 62 and after 41 years of contributions, but only applies to 2023. Finally, a new pension revaluation system for the years 2023 – 2024 is also in the offing.
Self-employment: the flat-rate regime, which provides for taxation at a rate of 15 per cent, will apply to revenues up to EUR 85,000, instead of the current EUR 65,000.
Other related insights:
Covid-19 and right to the use of parental leave: INPS provides the first indications
In the event of repeated absences – which have not exceeded the limit of the protected period – the onus is on the employer to prove the additional reasons justifying the dismissal.
Dismissal based on an employee’s repeated absences from the workplace on days close to rest days and/or public holidays constitutes an unfair and arbitrary reaction by the employer to the legitimate exercise of the employee’s right to be absent due to illness and, therefore, must be considered discriminatory and retaliatory if the protected period established by the collective agreement has not been exceeded.
This was the conclusion reached by the Court of Naples in its judgment of 14 September 2022 on the basis that the employer may not terminate the relationship before the tolerable absence limit (the so-called ‘protected period’) has been exceeded.
The case before the Court related to the dismissal for just cause of an employee who was repeatedly absent for short periods usually close to rest days, public holidays or holidays. In the company’s opinion, the absences had made his work performance objectively unusable and discontinuous and caused serious and onerous disruption to business organisation.
The Court held that the dismissal was unlawful, referring, first of all, to the legal provision governing the sickness, i.e., Article 2110 of the Italian Civil Code. That legislative provision, in essence, establishes a balance between the employee’s interest in keeping his/her job for a determined period of time and the employer’s interest in not having to bear for an indefinite period of time ‘the repercussions that such absences have on business organisation’. In fact, exceeding the protected period, usually defined by collective agreement, would have the effect of jeopardising the employer’s right to receive consistent and regular services from the worker and, therefore, to satisfy fully the organisational purposes of the business.
The full version can be accessed at Norme e Tributi Plus Lavoro of Il Sole 24 Ore.
