The Court of Rome differs from the Capitoline Court of Appeal guidelines over the exclusion of the dismissal prohibition for managers during the Covid emergency.
Measures to combat Covid 19 – Decree Law no. 18/2020 and Decree Law no. 104/2020 – Dismissal prohibition for objective justified reason – Manager – Dismissal for position redundancy – Prohibition breach – Not applicable
The emergency legislation on prohibiting dismissal for objective justified reasons is exceptional and cannot be applied to similar cases not expressly mentioned by the regulation. This means that the dismissal prohibition cannot be applied to an individual manager’s dismissal.
Court of Rome 25 October 2022, no. 8722
A few months after the Rome Court of Appeal ruled in favour of the applicability of the dismissal prohibition to managers, the Capitoline Court, in its recent ruling no. 8722 published on 25 October 2022, came to an opposite conclusion.
FACTS OF THE CASE
In August 2020 – the period covered by the general dismissal prohibition for objective justified reasons under Decree Law 14/8/2020, no. 104 – an employer company dismissed a manager for objective financial reasons.
Considering that managers were included in the group of workers protected by the dismissal prohibition under the emergency regulations, and as part of the first phase of the Fornero Procedure, the Judge declared the dismissal null and void, ordered the manager immediate reinstatement, and the company to pay the remuneration due from the dismissal date until reinstatement.
The company appealed against this decision before the Court of First Instance.
LEGISLATION AND CASE-LAW
Art. 46 Decree Law 17 March 2020, no. 18 prohibited collective dismissal procedures and employers from “terminating the contract for objective justified reasons under Art. 3 of Law no. 604 of 15 July 1966” regardless of the number of employees.
The dismissal prohibition applicable to this case was extended and subjected to further conditions and exceptions, by Decree Law 14/8/2020, no. 104.
The provision stated that, to cope with the COVID-19 emergency, private employers who partly benefited from the wage subsidies or the exemption from the payment of social security contributions could not terminate employment contracts for objective justified reasons under Art. 3 of Law 15/7/1966, no. 604 of 15/7/1966, regardless of the number of employees. The ongoing procedures at the Local Labour Inspectorate referred to in Art. 7 of the same law, were suspended.
The prohibitions and suspensions listed above did not apply in the following cases:
a) redundancies due to the definitive cessation of the company business, resulting from the company liquidation without any business continuation;
b) collective bargaining agreement, stipulated by the trade unions that are comparatively more representative at the national level, as an incentive to terminate the relationship;
c) redundancies due to bankruptcy when there was no company provisional operation or business termination.
Since the introduction of the dismissal prohibition, two opposing approaches have alternated in legal theory and case law on the applicability of this emergency legislation to individual dismissals of managers.
Continue reading the full version published on Guida al lavoro of Il Sole 24 Ore.
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.
Other related insights:
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.
Continue reading the full version published on Modulo24 Contenzioso Lavoro (Form24 Labour Litigation of Il Sole 24 ore.
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.
Continue reading the full version published on Norme & Tributi Plus Diritto of Il Sole 24 Ore.
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.”
