The Court of Santa Maria Capua Vetere, by decree under art. 28, Law no. 300/1970, of 24 February 2022, stated that the dismissal of a trade union delegate, in the absence of prior authorisation from the trade union to which they belong, is ineffective and constitutes anti-union conduct.
The decision stems from an appeal filed by the trade union association to which the employee belongs (RSU delegate), which said the employer was guilty of anti-union conduct having imposed the dismissal for just cause, in violation of art. 14 of the Multi-industry Agreement of 18 April 1966.
The above rule, referred to by the Metalworking Industry’s National Collective Labour Agreement, for cases of disciplinary dismissal announced during the period of validity of the trade union office, provides that its operation is subject to the employer obtaining the authorisation of the trade union association to which the union representative belongs. The employer must notify the dismissal to the trade union delegate and the trade union association which rules on the expulsion measure within six days. The trade union organisation may refuse the authorisation, thus preventing the dismissal from taking place. If the trade union does not express its opinion within the following six days or does not decide to initiate the optional conciliation procedure under Article 14, the dismissal becomes effective.
The purpose of this procedure is to (i) verify that the dismissal is not instrumental and unjustified, and (ii) to avoid possible disturbances connected with the dismissal of a trade union representative.
Only after filing the appeal under Art. 28, Law no. 300/1970 by the trade union association, the company had activated the procedure, communicating the re-admission of the trade union delegate, to fulfil their purpose but exempting them from providing work.
The court noted that the absence of the request for authorisation by the employer entails the “inoperability” of the dismissal and counted as anti-union conduct. In the court’s view, the procedure’s start (following the appeal filing), with the simultaneous formal readmission of the worker to service did not result in the anti-union conduct ceasing to exist, as the company claimed, or the conclusion of the disputed matter.
What mattered to the Court for the purposes of the existence of the interest in bringing proceedings under Art. 28, Law no. 300/1970 was not only the existence of the anti-union conduct but its continued damaging effect. In this case, the damaging effects was that the employer effectively prevented the RSU delegate, who had been suspended from work, from accessing company premises and exercising their functions.
The court ordered the continuation of the employment relationship without exemption from work and for the time necessary to carry out the procedure under Article 14 of the Multi-industry agreement.
Based on previous case law, the decree held that the sanction of reinstatement under Article 18 of the Workers’ Statute does not apply in cases of nullity of dismissal. This is because the infringement of Article 14 is a breach of contract and not a breach of law. Dismissal is only invalid if the employer’s termination is based on the employee’s membership of a trade union or participation in trade union activities and is therefore discriminatory.
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In ruling no. 8628 of 16 March 2022, The Court of Cassation ruled that the validity of dismissal for exceeding the protected period “‘by summation” requires specification of the days of absence due to illness, to which unjustified absences cannot be counted.
An employee of the Udine Prefecture had challenged her dismissal for exceeding the protected period, arguing that the dismissal notice did not correctly specify the days counted and added together.
The Court of First Instance upheld the employee’s appeal, declared the dismissal unlawful and ordered the Ministry to reinstate her.
The Ministry then appealed against the ruling before the Court of Appeal of Trieste, which confirmed the first instance ruling, upholding the principle that if the employer specifies the employee’s days of absence in the termination notice, it cannot subsequently change or add them.
In this case, the period specified by the Ministry of Health for absence due to illness was 472 days (taking into account the “protected period by summation”) and was less than the protected period under collective bargaining and set for 484 days. This is because the period specified by the Ministry included 12 days of employee unjustified absence and, therefore, was not included in the protected period calculation.
In addition, the Court of Appeal found that the Ministry’s evidence that the days of unjustified absence were attributable to the employee’s illness was worthless. According to the Court of Appeal, what mattered was the “incontrovertibility” of the periods specified in the dismissal notice, based on the principle that the reasons for dismissal cannot be changed.
The unsuccessful Ministry thus appealed the Court of Appeal’s ruling in cassation.
The Court of Cassation confirmed the decisions of the courts. The Court of Cassation upheld the local court’s finding that the 12 days of unjustified absence were not taken into account for a protected period exceeding purposes, as they related to a different case.
The Court of Cassation observed that, contrary to the Ministry’s claim, the Court of Appeal did not intend to affirm that in cases where the protected period was exceeded the employer must specify the individual days of illness considered for the calculation of the protected period in the letter of dismissal. This precluded a subsequent specification by the employer.
The Court of Cassation stated that the employer cannot ex post add to or change the days taken into account to exceed the protected period allowed by collective bargaining, if it specifies the absences taken into consideration.
According to the Court, for cases of dismissal for exceeding the protected period, “the employer does not have to specify the individual days of absence since more comprehensive information is sufficient. This is based on the amended Article 2 of Law no. 604/1966, which requires the simultaneous communication of the reasons, without prejudice to the burden of alleging and proving in court the facts constituting the power exercised. However, this applies to the protected “single period” (i.e. a single uninterrupted period of illness), where the days of absence are easily calculable even by the worker. In cases of protected period “by summation” (i.e.multiple and fragmented absences), a specification of the calculated absences is required to enable the worker to defend themselves.” In the Court of Cassation’s opinion, even when there was a dismissal for exceeding the protected period “by summation” the rule of unchangeability of the reasons underlying the termination applies. This rule constitutes a guarantee for the worker who, otherwise, would not have the opportunity to challenge the dismissal.
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In its ruling no. 3820 of 7 February 2022, the Court of Cassation established that the disciplinary notice shows the worker of the facts of which they have been charged to allow them to exercise their defence rights. It does not contain evidence, especially when it comes to facts beyond the employer’s direct knowledge which take place outside the company. In such cases, it is sufficient for the employer to specify the source of its knowledge.
A company initiated disciplinary proceedings against two employees of a motorway toll booth, who were accused of affixing paper to the automatic gate’s optical barrier to prevent the system from detecting vehicles in transit and personally profit from the tolls. The disciplinary proceedings, which centred on the conduct they carried out on 27 October 2016 and other circumstances set out in an annex to the letter of complaint, ended with their dismissal for just cause.
The dismissed employees challenged the dismissal before the local court, which rejected the appeal in the summary stage, but it was upheld in the opposition stage, declaring the dismissal unlawful and ordering the company to reinstate them.
The Court of Appeal of Naples, before which the unsuccessful company appealed, upheld the complaint lodged and, reforming the first instance ruling, rejected the employees’ original application to challenge the dismissal.
The local Court held that the dismissal was lawful because of (i) the degree of trust required by the position they held, which could not be continuously monitored, (ii) the fact that they had dealings with the users and represented the company; (iii) the responsibility associated with the handling of money. According to the local Court, the argument “that the amount stolen was small and the incident isolated” was irrelevant, “because the circumstance that the employees had carried out tricks and deception to take money to the employer’s detriment had a highly negative legal and social implication and irreparably damaged the bond of trust and made the expulsion penalty proportionate.”
The two workers appealed against the Court of Appeal ruling, to which the company replied with a counter-appeal.
The Court of Cassation clarified that, when exercising disciplinary power, the charge notice shows the contested fact to allow the worker’s defence. It does not contain any evidence, especially when it comes to facts beyond the employer’s direct knowledge which take place outside the company. It is sufficient that the employer specifies the source of its knowledge.
The Court of Cassation observed that, for dismissal for just cause, when the employee is charged with several disciplinary offences, it is not necessary for the existence of the “cause” that prevents the continuation of the relationship to be found exclusively in the totality of the offences. According to the Court of Cassation, the judge may – as part of the charges underlying the dismissal by the employer – identify even in any one of them the conduct that justifies the expulsion sanction if this is a severe breach required by art. 2119 of the Italian Civil Code.
The Court of Cassation pointed out that thepenalty proportionality or adequacy assessment for the offence committed is based on assessing the seriousness of the worker’s breach concerning the relationship and circumstances of the case. The breach “must be assessed in an accentuated sense compared to the “not insignificant” general rule under Art. 1455 of the Italian Civil Code, so that the imposition of the maximum disciplinary penalty is justified only if there is a significant breach of contractual obligations (Law no. 604 of 1966, Art. 3) or such as not to allow the continuation, even provisional, of the relationship.” In this case, the breach of trust is connected to the use by the employees, of artifices and deception to take money (regardless of its amount) from the employer.
Given the above, the Court of Cassation dismissed the employees’ appeal and ordered them to pay the costs of the proceedings.
With its ruling no. 1887 of 21 January 2022, the Court of Cassation stated that the employee might freely dispose of the right to challenge the employment relationship termination by waiving or settling.
Facts of the case
The facts of the case originate from the decision of the relevant local court, which was upheld on appeal, declaring inadmissible the employee’s request to verify the nullity of the term applied to the employment contracts assuming that a settlement had been reached between the parties.
The employee appealed to the Court of Cassation against the Court’s ruling, arguing that the settlement agreement signed was null and void because of the absence of the res litigiosa and the settlement concerned rights that were not available to the parties.
The Supreme Court of Cassation’s ruling
The Court of Cassation upheld the Court’s decision, stating that for the res litigiosa (a necessary element for the settlement validity) to exist, it is unnecessary that the parties’ arguments took the form of a claim and that the existence of a potential disagreement was sufficient, even if needed to be precisely defined as a dispute.
The Court of Cassation stated that the right to challenge an employment relationship termination and the worker’s interest in its continuation falls within the worker’s free choice.
According to the Court of Cassation, settlements on this issue are outside the scope of Art. 2113 of the Italian Civil Code, where only acts waiving the employee rights arising from mandatory legal or collective agreements provisions were considered invalid and challengeable.
On this basis, the Supreme Court dismissed the employee’s appeal. It deemed the inter partes conciliation valid assuming the Law recognised the worker’s right to definitively dispose of their job by negotiation and based on Art. 2118 of the Italian Civil Code.
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With its order no. 7400 of 7 March 2022, the Court of Cassation ruled that an individual dismissal for objective justified reason, for the same reasons as those underlying the collective dismissal previously initiated, is null and void because it involves fraudulent conduct.
An employee who was dismissed for justified objective reasons challenged the dismissal before the Court of Rome on the grounds that it was based on the same reasons that had previously led to a collective dismissal with the same company.
The Court declared that the dismissal was null and void because the company had not complied with the requirements of Law no. 223 of 1991, since it was based on the same reasons as the collective dismissal. The company had not involved the trade unions and had not carried out the necessary comparison between the position of the dismissed employee and that of the other employees subject to collective dismissal.
The company appealed against the ruling before the Court of Appeal of Rome, which upheld the first instance ruling, pointing out that the reasons underlying the two types of dismissal were overlapping. In addition, the Court of Appeal noted that (i) the collective dismissal had been concluded without redundancies because the recipients took part in a voluntary redundancy incentive offer and (ii) in the year that had elapsed between the termination of the collective procedure and the contested dismissal, no changes had occurred at the company.
According to the appeal court, the absence of new reasons that could have justified the individual dismissal, the non-inclusion of the employee in the collective procedure had precluded him from availing himself of the comparison of his position with those of the employees under the collective procedure.
The employer company appealed against the Court of Appeal’s ruling in cassation.
The Court of Cassation confirmed the Courts’ decisions and, using previous case law, observed that the employer could not revise their choices made in relation to the number, company location and professional profiles of the redundant workers, and the criteria for choosing the individual workers to be removed, through further and subsequent individual dismissals. The legitimacy of these dismissals was subject to the identification of factual situations different from the collective dismissal (see Court of Cassation, ruling 16 January 2020, no. 808).
The Cassation judges stated that “the dismissal for justified objective reason provided for the same reasons underlying a previous collective dismissal is a fraudulent conduct under Article 1344 of the Italian Civil Code.” The Court stated that the unlawful contract involves “the parties achieving the same result prohibited by Law, through contractual agreements. Although the means employed is lawful, the result intended to be achieved is unlawful by abusing the means and distorting its ordinary function,” as in this case.
The Court of Cassation rejected the company’s claim about the inadmissibility of the court to decide the merits of the entrepreneur’s technical, organisational and production choices. According to the Court of Cassation, the Court of Appeal found that the reasons underlying the collective dismissal overlapped with those underlying the individual dismissal and that the dismissal was unlawful.
This conclusion, according to the Court, is sufficient to declare the dismissal unlawful, because the procedural management of collective dismissal must effectively involve the union in the company’s organisational choices, binding the employer to meet them even after the procedure closure. The employer could not reconsider what was communicated to the union about the number, company location, professional profiles of the redundant workers and the criteria for selecting employees after the collective procedure had completed.
According to the Court of Cassation, the individual dismissal must be based on factual situations different from those underlying the collective dismissal.
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