Disciplinary dismissal and groundlessness of the contested fact considering case law following the amendment of Art. 18 of the Workers’ Statute by the “Fornero Law”, and the entry into force of the “Jobs Act.” According to the latest developments in case law, groundlessness of the contested fact includes cases in which the fact has not materially occurred, and those in which the fact, which materially occurred, has no disciplinary relevance for the objective or subjective profile of the attributability of the employee conduct
Art. 1, paragraph 42, of Law 92/2012 amended Art. 18 of the Workers’ Statute classifying penalties resulting from the unlawful dismissal rulings, to make workplace reinstatement a last resort.
Other than null dismissal, protection is provided for cases of qualified unjustifiability specified in the fourth and seventh paragraphs of Art. 18 of the Workers’ Statute .
Before the entry into force of the Fornero Law reform under Art. 18 of the Workers’ Statute, in the absence of just cause or subjective justified reason, workplace reinstatement, with variable compensation, was the only protection for the employee. To establish the dismissal’s legitimacy, the Court was called to assess proportionality between the disciplinary offence committed by the employee and the penalty.
Before the Fornero reform, a dismissal could be considered legitimate provided that the employment termination was a proportionate consequence of the worker’s breach.
With the reform of Art. 18 of the Workers’ Statute, the concept of groundlessness of the fact was introduced for disciplinary dismissals, which refers to the concept of ” groundlessness of the contested fact“, and dismissal for objective justified reason, which refers to “manifest groundlessness of the fact underlying the dismissal.”
Paragraph 4 includes the groundlessness of the contested fact and the fact falling within conduct punishable with a conservative penalty under collective agreements or the disciplinary code.
Paragraph 7 considers the manifest groundlessness of the fact underlying the dismissal for objective justified reason.
Continue reading the full version published in Modulo24 Contenzioso Lavoro (Form24 Labour Litigation) of Il Sole 24 ore.
With its ruling no. 3724/2022, filed on 2 February, the Court of Cassation held that an employer who “warns” staff that they may lose their job to force them to accept financial conditions that do not match the services they provide was extortion.
Facts of the case
Two employees brought an action against their employer, operating in the hotel sector, claiming the crime of extortion, as they had been forced to accept unfavourable remuneration, on pain of dismissal.
The Courts (first the Sulmona Court and then L’Aquila Court of Appeal) rejected the appeal brought by the two employees, ruling out the possibility of the crime of extortion due to the absence of any threat element.
The second instance ruling highlighted that the employees were required to work beyond their regular working hours, almost continuously (even for twenty hours a day), carrying out tasks other than those contractually agreed. The employer also harassed them. The judges stated that the two employees could discontinue the employment relationship or respect the (unfair) working conditions. Further, they said they were not vulnerable given the hotel sector’s financial situation and because they came from a wealthy family.
The employees appealed to the Court of Cassation against the Court’s decision.
The Court of Cassation’s ruling
In upholding the two employees’ appeal, the Court of Cassation stated the appealed ruling did not consider that “threat” implies that the choice of conduct is left to the victim. This assumption wasbased on theknowledge that if they behaved differently from what was demanded by the active party (i.e., the employer), the consequence would be a predicted injustice.
Therefore, the choice of the conduct to be adopted is left to the passive party (i.e. the employees) cannot exclude the threat or extortion existence.
This overcame the Court of Appeal arguments centred on the belief that the employer had not contemplated dismissal but stated that anyone who did not like the working conditions was “free to leave.” According to the Court of Cassation, this statement gives the employee the alternative of accepting the working conditions imposed by the employer or losing their job, and it is irrelevant that this could be a “voluntary” decision. Such conduct is criminal because the working conditions indicated as an alternative to losing one’s job were unfair and unlawful.
The Court of Cassation affirmed the legal principle that an employer taking advantage of the favourable situation in the labour market due to supply over demand forced workers to accept, using a masked threat of dismissal, a worse remuneration which was not commensurate with the services provided, was extortion.
The Court of Cassation said the injured party’s subjective condition was not required to establish an offence. The latter takes place when the employer foresees the loss of the job, taking advantage of the natural condition of prevalence they have over the employee and the favourable market conditions.
With its order no. 2246 of 26 January 2022, the Court of Cassation ruled that a manager who sent an angry email to the company’s top management engaged in conduct likely to disrupt the relationship of trust that binds them to the employer, even if it did not formally breach their work obligations.
Facts of the case
A senior manager was dismissed for just cause after he sent an email to the company’s top management saying: “You have betrayed my trust and good faith, and I do not know how long I can go on putting up with your behaviour that I consider disgraceful.”
The dismissed manager sued the former employer (i) claiming that such remarks had been caused by an episode that had triggered a strong psychological reaction and (ii) asked her to pay indemnity instead of notice, additional indemnity, under the provisions of the National Collective Labour Agreement for Industry Managers, and damages for demotion and harassment.
The Court of First Instance partially upheld the appeal, finding that the dismissal was “justified” under the relevant national collective labour agreement, i.e. neither vexatious nor arbitrary, even if dismissal lacked just cause. The Court ruled the manager should receive only the indemnity instead of notice and rejected the other claims.
The Court of Appeal complied with the Court of first instance ruling, pointing out that “the words aimed at the employer in the contested email (…), while not constituting just cause for dismissal, provided the justification based on collective bargaining, which implies no additional compensation. This is in light of the top management role and subsequent higher trust relationship.”
The manager appealed to the Court of Cassation.
The Supreme Court of Cassation’s ruling
The Court hearing the case noted that, according to settled case-law, “for manager dismissal justification purposes,” an analytical verification of specific conditions is not required, but it is sufficient to make an overall assessment that excludes the termination arbitrariness since it was due to circumstances likely to disrupt the bond of trust that bound him to the employer. Any reason for termination, based on coherent grounds and legally appreciable reasons, thus becomes relevant. Based on the general principles of good faith and contractual fairness, the manager’s conduct was considered suitable to disturb the relationship of trust with the employer, even in the absence of a formal breach of employment obligations.
According to the Court of Cassation, the termination is justified by the need of the entrepreneur to fully rely on the manager for the execution of directives.
Given the above, the Court of Cassation dismissed the manager’s appeal and ordered him to pay the costs of the proceedings.
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The Court of Asti, with the order of 5 January 2022, ruled that the quarantine period (as per art. 26, paragraph 1, Decree Law 18/2020 applicable ratione temporis) or voluntary homestay is not valid for calculating the protection period, not only vis-a-vis subjects who have had close contact with confirmed cases, but also regarding subjects who end up positive for Covid-19. This is because it is impossible by law to perform the job regardless of the presence of symptoms or not linked to the pathology.
In the case in question, the worker, following contact with a colleague turned out to be positive to Covid-19, she was first put in quarantine and later, following a positive swab result, in voluntary homestay. The employer dismissed her for exceeding the protected period according to the sector national collective bargaining agreement.
The worker challenged the dismissal in court, claiming that:
In contrast with what the employee sustained, the employer sustained that the protection included in art. 26, paragraph 1, of Degree Law no. 18/2020 only refers to the quarantine periods with active monitoring or voluntary homestay with active monitoring ordered by the authority and not also the case in which the worker had caught the Covid-19 infection.
According to the Judge assigned to the case, during the protected period the days of absence due to quarantine or voluntary homestay provided by the law to fight the spread of the virus should have not have been calculated.
The Judge – in citing art. 26, paragraph 1, of Decree Law no. 18/2020 as amended by subsequent legislative interventions that extended the timeframe – underlined how such provision was introduced with the aim of protecting workers forced to be absent from work because subject to quarantine or voluntary homestay measures equating such absence to illness and excluding it from the calculation for the protected period.
In light of the above, according to the Court, in the case in hand, the days of absence required for quarantine and those ordered for homestay due to testing such worker for the virus should not have been calculated for the purpose of exceeding the protected period.
The sentence reads that “the ratio of the law is not to have the worker suffer the consequences for absences from work due to prevention and containment measures provided by law and undertaken with measure of the authorities to limit the spread of the Covid-19 virus, in all cases of possible or clear infection from the virus and regardless of the condition of the illness that – as already known – may exist with or without the infection (asymptomatic positive cases)” It later states “even in the case of infection with illness, what really separates Covid-19 from other illnesses is the impossibility, authoritatively imposed, for the worker to perform their job and for the employer to receive it in legally and administratively expected times, times that – once again – are regardless of the development of the illness but depend on the mere positiveness or negativeness of the virus”.
Based on these considerations the Court granted the worker’s appeal, cancelling the dismissal and (i) reinstatement in her job as well as (ii) payment of damages equal to the last overall remuneration from the day of dismissal until that of effective reinstatement, and in any case not greater than 12 months salary of overall remuneration, as well as interest and revaluation as per law as well as payment of welfare and social security contributions.
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With ruling no. 2629 of 10 November 2021, the Court of Milan considers that the dismissal prohibition introduced by the emergency legislation applies to executives.
Facts of the case
With an appeal under art. 414 of the Italian Code of Civil Procedure, an executive requested the Court of Milan to ascertain and declare the nullity of his dismissal for breach of the emergency regulations. Furthermore, he asked for reinstatement and compensation for damages equal to an indemnity proportional to the last total salary from the dismissal date to the reinstatement date and no less than five months’ salary, plus interest and revaluation from the date of settlement accrual and payment of social security contributions.
The executive’s former employer, which appeared before the Court, requested the rejection of the claims submitted by the manager.
The Court’s decision
In upholding the executive’s appeal, the Court pointed out that the dismissal letter showed that the executive had been dismissed for cost containment to manage the company more profitably, which was linked to the COVID-19 health emergency. The dismissal letter stated that “within twelve months, (…) he would have reached the age of 67, the age set by law for obtaining the pension, receiving the relevant emoluments and the indemnity instead of notice.”
According to the Court, it is clear from the letter of dismissal that this was not an ad nutum dismissal but an ineffective dismissal for financial reasons.
As far as we are concerned, the Court observed that the dismissal prohibition during the emergency period applies to executives. The interpretation according to which this prohibition would not apply to them cannot be reasonably confirmed by a constitutionally oriented understanding of Art. 14 of Decree Law no. 104/2021.
The reference to art. 3 of Law 604/1966 to identify the type of dismissal covered by the prohibition, namely dismissal for objective reasons, “is intended solely to identify the type of dismissal covered by the prohibition, namely dismissal for objective reasons, based on the reasons given in the termination notice.” The fact that the rules on dismissals apply only to managers, clerks and workers is irrelevant since the legislature intended to prohibit all “financial-based” dismissals. The reference made by art. 4 of Law 104/2020 is only to art. 3 and not to the entire Law 604/1966.
In addition, it is common ground that executives are subject to the rules governing collective redundancies. According to the Court, it was illogical to exclude executives from the dismissal prohibition scope, which includes their collective dismissal.
That conclusion appears to be supported by applying the protection’s sanctioning system for executives’ null and void dismissal because it was made in breach of a prohibition laid down by a mandatory rule.
According to the Court, the justified reason supporting an executive’s dismissal cannot be disregarded under Art. 5 of Law 604/1966. “The contractual justified reasons legitimising executive dismissals are contained in the less extensive objective justified reason for dismissal.”
Excluding executives from dismissal prohibition was inconsistent with a constitutionally-oriented interpretation of the rules concerning the principle of equality and reasonableness. The Court referred to the Court of Cassation, which stated different rules could be applied to executives “provided that they are situations capable of justifying an exceptional regime regarding other appreciable interests and the limits of reasonableness are not exceeded.”
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This ruling is part of the case law debate in which the Court of Rome, by order of 26 February 2021, firstly declared illegitimate the individual dismissal for financial reasons of an executive during the period when the dismissal prohibition was in force and then, by decision of 19 April, legitimised that type of dismissal.
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