In its ruling no. 376 of last 23 November, The Court of Florence declared the unilateral terminations made by a digital platform of home food deliveries (the “Company“) from the relationships in place with individual workers (“riders“) ineffective, following a failure to adhere to the National Collective Labour Agreement (the “NCLA“) signed by Assodelivery, the trade association representing the Italian food delivery industry to which the Company belongs, and UGL rider – the trade union.
The matter arose in October 2020 after the stipulation of the NCLA with UGL through Assodelivery, the Company sent a communication to (about 8,000) riders asking them to sign a new work contract as an essential condition for continuing the relationship.
With an appeal filed on 25 February 2021, the trade unions FILCAM CGIL FIRENZE, NIDIL CGILFIRENZE and FILT CGIL Firenze brought an action against the Company opposing the decree under art. 28 of the Workers’ Statute issued on the previous 9 February by which the appeal brought by the same parties for the alleged anti-union conduct of the Company was rejected, which was based on:
The Court of Florence clarified that riders must be considered employees, and the management of the relationship with them must be subject to the relevant rules, including those on termination.
As for the notice sent by the Company, the Court found (i) there was no consultation with the trade unions that the Tertiary Distribution and Services would have been required by the Collective Labour Agreement applied to its employees and (ii) it was intended to simultaneously terminate the relationship with more than 8,000 riders, constituting a “significant change in the company organisation.”
According to the Court, since it was undisputed (because it was uncontested) that some riders equal to or greater than five had prematurely terminated their employment following the Company unilateral change, the procedures provided for by Law 223/1991 should have been used, including “prior written notice (in the absence of rsa or rsu – union representatives) to the trade associations belonging to the most representative confederations at a national level.”
According to the Court, the plaintiff associations fall within the scope of the recipients of the above communication as they are trade associations. Furthermore, each of them has multiple-factor organised and quasi self-employed workers who are members of a confederation such as CGIL, which is representative at a national level.
The Court of First Instance observed that elements such as how the agreement was signed, the lack of discussion between the union and riders, absence of disputes brought by UGL, contract content that excluded UGL from the European Economic and Social Committee and the failure to continue negotiations with other trade unions to stipulate further and different contracts, were “unequivocal and concordant elements in favour of the union’s (UGL rider) unrepresentative nature and the discriminatory nature of the privileges granted to it which were unjustified by the union’s bargaining strength.”
On these grounds, the Court, accepting the union representatives’ appeal, ordered the Company to immediately cease the anti-union conduct, condemning it to initiate the consultation and discussion procedures provided for by the Tertiary Distribution and Services Collective Labour Agreement and the information and consultation procedures under Law 223/1991. In addition, the Company was ordered to publish the full decree text at its own expense and once in some specific local newspapers and pay the costs of the proceedings (including the summary stage) to the plaintiff union.
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The order to immediately cease applying the Ugl rider NCLA remains, to date, limited to the local jurisdiction of the Court of Florence, which has ruled on the matter.
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With its order no. 30478 of 28 October 2021, the Court of Cassation ruled that the employer is not obliged to warn the employee who cannot work about the imminent achievement of the maximum relationship protected period, nor to suggest alternative means to the absence due to illness (holidays, leave of absence).
The case originates from an appeal against an employee’s dismissal for exceeding his protected period, which was based on the concept that the employer should have informed him of the imminent expiry of his protected period.
The Court hearing the case, declared the dismissal unlawful, while the Court of Appeal overturned the decision of the first instance. The unsuccessful employee appealed to the Court of Cassation.
The Court of Cassation confirmed the dismissal’s legitimacy, and noted that in the absence of any obligation under the collective bargaining agreement, the Company did not have to warn the employee of the imminent expiry of the protected period for illness to allow the employee to exercise the right to request a leave of absence.
According to the Court of Cassation, the dismissal in question is justified by the prolonged objective absence due to illness, exceeding the maximum duration set out in the sector NCLA and, therefore, the impossibility to work. Such dismissal was not disciplinary and prior notification of absence is not required. The employer did not have to provide the employee with a list of absences at the time of dismissal but only if requested after the dismissal.
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With its order no. 28606/2021, the Court of Cassation returned to the issue of leave under Law no. 104/1992, stating that the requesting employee must guarantee continuous and global assistance to the disabled family member, although they may devote a limited time to their personal needs during the leave. If the causal link between the absence from work and the assistance to the disabled person is entirely lacking, this constitutes improper use of the leave (or abuse of right) or a serious breach of the duties of fairness and good faith towards the employer and the insurance company, resulting in the employee’s liability.
An employee was dismissed for just cause because, on the day of leave granted to assist his severely disabled mother, he was found working in his wife’s shop. To prove that he was assisting his mother, the employee stated that he had stayed at her home for about 50 minutes to prepare a meal for her. The Court of Appeal, reforming the decision of the Court of First Instance, declared the dismissal to be lawful, considering that it had been proved that the employee had carried out activities unrelated to the necessary family assistance on the day of leave. According to the Court, this behaviour had irreparably damaged the bond of trust. The worker appealed to the Court of Cassation.
The Court of Cassation, in considering the dismissal lawful, noted that under Law no. 104/1992, leave must always have a causal link between absence from work and assistance to the disabled person. According to the Court, the worker must guarantee continuous and global assistance to the disabled family member, however, during leave, can devote a limited time to his personal needs. The absence of a causal link leads to the conclusion that the leave is improper and the employee’s breach of his duty of fairness and good faith is serious, giving rise to his liability.
Leave under Law no. 104/1992 must be used following its function and in the presence of a causal link with the assistance activity for which it was granted. This leave cannot be used for different needs (whatever they may be) than those related to the function for which it is intended. This is because the benefit entails an organisational sacrifice for the employer that can only be justified in the presence of needs recognised by the worker and social conscience as deserving of protection.
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With its ruling no. 33809 of 12 November 2021, the Court of Cassation stated that an employee who deletes or transfers company data outside is engaging in disciplinary conduct and a civil and criminal offence. The employer may legitimately acquire and produce the private correspondence found after the Company’s personal computer is returned and present this evidence in Court to prove the employee’s unlawful conduct. The right to defence in Court prevails over the inviolability of correspondence.
In this case, a manager, after resigning, returned to the company the personal computer assigned, completely formatted and without any document, data or company information. The employer then turned to a computer expert to recover the data and information deleted by the former employee.
After retrieving the password to access the Skype platform, the expert found some conversations had by the former employee with parties outside the company organisation (including competing companies), revealing the perpetration of a series of disloyal and illegal conducts. The Company filed a claim for compensation for the damages allegedly suffered because of the manager’s conduct.
The Court of Appeal of Turin, overturning the first instance court’s decision, held that the Company’s claim was unfounded, ruling out the existence of any evidence of the employee’s allegedly unlawful conduct and consequently the right to compensation for the damages claimed. The Court of Appeal considered the conversations acquired by the Company on the manager’s Skype account unusable in Court, as they were obtained in violation of the secrecy of correspondence and without his consent.
In overturning the Court of Appeal’s decision, the Court of Cassation found that the employee conduct damaged the Company’s assets. This was relevant not only in civil law terms, with the consequent right of the employer to compensate for the damage suffered, but in criminal law, as it constituted an offence provided for in Article 635 bis of the Italian Criminal Code (i.e. damaging information, data and computer programs). According to the Court of Cassation, the employee conduct is relevant from a disciplinary point of view as it was contrary to the obligations of loyalty and diligence.
As for the legitimacy of documents containing personal data produced in legal proceedings, the Supreme Court, referring to previous decisions, affirmed that this “is allowed when necessary to exercise one’s own right of defence, even in the absence of the owner’s consent and any method used to acquire their knowledge. However, defending oneself in legal proceedings, using the others’ personal data, must be exercised regarding the duties of correctness, pertinence and non-excessiveness (…). Document production legitimacy must be based on the balance between the content of the data used, to which the degree of confidentiality must be applied, and the defence needs.”
As for the personal data processing, the Court stated that “the right to defence in Court prevails over the right to inviolability of correspondence, allowing art. 24, letter f) Law 196/2003 to disregard the data subject consent for personal data processing, when it is necessary to protect a right in Court.” The Court continued, “This is conditional on data being processed exclusively for that purpose and the period strictly necessary for its pursuit.“
According to the Supreme Court, the right of defence would not be limited to the legal proceedings stage, as it could be extended to evidence gathering in the procedure, even before a dispute has been formally established.
Finally, the Court of Cassation, in explaining its decision, confirmed the legitimacy of the checks carried out by the employer under the rules contained in art. 4, Law no. 300/1970 (applicable ratione temporis), finding the checks “defensive” in nature. According to the Court, the checks took place after the employment termination and after the commission of the harmful act which consisted of deleting company data by the manager.
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The Court of Cassation, with its ruling no. 25731 of 22 September 2021, stated that, in the absence of prior information under Article 4, para. 3, of Law no. 300/1970, the employer cannot use the data found in a company chat room where an employee bad mouths their superiors and colleagues, for disciplinary purposes.
An employee was dismissed for just cause because a conversation was found where the employee while chatting with another colleague, had used heavily offensive words towards a hierarchical superior and some other colleagues. The conversation was found during a check carried out by the IT staff to verify if there was company data to be kept, before closing the chat.
The Court of First Instance, first, and then the Court of Appeal, held that the dismissal for just cause was unlawful.
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Article 4 of Law 300/1970 provides as follows:
1. “Audiovisual equipment and other tools which provide for the possibility of remote control of workers’ activities may be used exclusively for organisational and production requirements, for work safety and the protection of company assets, and may be installed subject to a collective agreement entered into by the unitary trade union representatives or company trade union representatives. (…)”
2. The provision referred to in paragraph 1 shall not apply to the tools used by the worker to perform work (…).
3. The information collected under paragraphs 1 and 2 may be used for all purposes related to the employment relationship provided that the worker is given adequate information on how to use the tools and checks carried out and under Legislative Decree no. 196 of 30 June 2003 .”
The latter paragraph specifies the need to inform employees of the tools use and monitoring methods, especially if the tools installed for the needs referred to in the first paragraph or assigned to perform the work referred to in paragraph 2 include any remote monitoring of the workers’ activity. This is so that the data collected is used for purposes related to the employment relationship, including any disciplinary measures.
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The Court of Appeal of Milan found that the company’s access to the chat room was unlawful, as it was carried out in breach of the above paragraph 3, since the employer had failed to provide the necessary timely and adequate information to employees on the monitoring methods.
The losing company appealed to the Court of Cassation.
The Court of Cassation, referring to the arguments put forward by the Court of Appeal of Milan, stated that the company’s access to the company chat room was unlawful because it was carried out in violation of Art. 4, para. 3, Law 300/1970. According to the Court, the company chat room is to be qualified as a work tool within the meaning of paragraph 2 of the above Article 4. Chat room monitoring could only have taken place by providing workers with “adequate information on how to use it.“
In this case, there were company regulations which provided for the possibility of carrying out checks on the chat during maintenance, updating or to obtain useful data for cost planning. However, no prior and adequate information had been provided to the employees on the monitoring due to the chat closure and its progressive abandonment, nor on the tool monitoring methods. On the contrary, the communication about the chat service interruption was sent when the checks had already been carried out.
In confirming what was stated by the local court, the Supreme Court held that the material collected could not be used by the employer. This is because the employee’s conversations constituted a form of “private confidential correspondence, which requires protection of the freedom and secrecy of communications under Art. 15 of the Constitution.”
The confidential content of the conversations was also apparent from the fact that the chat room could only be accessed using a personal password and the messages sent could only be read by the recipients, “with the result that access to the chat content is precluded to outsiders and their disclosure and use is not permitted.”
The Court “ruled out a disparaging intent” by the employee, holding that “the e-mails content and the expressions used constituted an outburst by the sender, intended to be read only by the recipient, without any unlawfulness and being a free expression of thought in a private conversation.”
Based on the above, in confirming the decision of the Court of Appeal of Milan, the Court of Cassation held that there was no just cause for dismissal, ordering the employer company to reinstate the employee in her place of work and pay her damages of seven months’ salary.
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