With its order no. 27934 of 13 October 2021, The Court of Cassation ruled that the employer’s waiver of the resigning employee’s notice period removes any obligation to pay them the relevant payment in lieu of notice. This is because the resigning party has no legal interest in continuing the employment relationship.
In this case, a resigning executive obtained a court order for payment of the allowance in lieu of notice, a decision that was upheld on appeal, based on the company’s waiver of the resignation notice period did not relieve it from the obligation to payment in lieu of notice.
Objecting to the court’s ruling, the losing Company appealed to the Cassation Court.
The Court of Cassation, explained the financial function of the notice which consists in mitigating the prejudicial consequences of the contract termination for the party suffering the termination.
The Court of Cassation stated that the notice has the following functions:
The Court of Cassation analysed the issue of the notice waiver by the party affected by the termination and the legal consequences of such waiver, which vary depending on whether it is given real or mandatory effect.
Referring to previous case law, the Court of Cassation, confirmed the mandatory effect of the notice, from which the withdrawing party is free to choose between continuing the relationship during the notice period and the payment in lieu of notice.
Based on that reconstruction, according to the Court of Cassation, the non-withdrawing party has a freely waivable claim. The non-withdrawing party owes nothing to the other party due to its waiver on this basis. The latter has no legally qualified interest in continuing the employment relationship until the end of the notice period.
On these grounds, the Court of Cassation upheld the Company’s appeal, revoking the payment order issued in favour of the resigning executive.
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It should be noted that the Court of Cassation’s decision is applicable only with reference to the legal rules on notice and not when the collective bargaining agreement (i.e., Commercial NCLA) requires the employer to pay the resigning employee the payment in lieu of notice, even if there is a notice waiver.
Other related insights:
With its order no. 26709 of 1 October 2021, the Court of Cassation expressed its opinion on the legitimacy of dismissals of workers who are caught carrying out activities incompatible with their medical condition, while being absent for illness.
The Supreme Court ruled on the legitimacy of the dismissal for just cause of an employee (who suffers from acute lumbar and sciatic pain) for keeping a lifestyle incompatible with the disease that afflicted him (the worker was caught lifting and handling bags of soil) while being absent for illness. In addition, this lifestyle was likely to affect his recovery and return to work.
The court reached that conclusion based on the findings of the appointed medical examiner who deduced that the symptoms suffered by the employee would have allowed him to carry out the tasks assigned within the limitations imposed by the company physician. Also the court-appointed expert found that the patient’s activities during his absence due to illness, if they are proved, would have prolonged the period of clinical recovery.
The proportionality assessment of the expulsion sanction was confirmed, as performance of other activities by the employee absent due to illness conflicted with the general duties of fairness and good faith and specific contractual obligations of diligence and loyalty.
The worker appealed to the Court of Cassation, citing the infringement and misapplication of Art. 18, paragraph 4, Law no. 300/1970, as his first ground of appeal, arguing that the conduct carried out during the period of illness constituted mere tasks of daily living (pointing out the modesty of the effort made, which consisted in carrying “two simple bags”). He claimed that the medical condition from which he was suffering should be considered to be proven in the light of the recorded medical certificates.
Continue reading the full version published in Norme & Tributi Plus Diritto of Il Sole 24 Ore.
The Court of Venezia, in its ruling no. 494/2021, stated that a company that suffered a cyber-attack and was forced to pay a ransom to recover stolen data can fire an employee who has repeatedly surfed on unsafe sites for private purposes and put internal security at risk.
Facts of the case
The worker employed by a company operating as a shipping agency was dismissed for just cause, following a legitimate disciplinary procedure, for having improperly used a company personal computer.
The charges brought by the company against the employee were twofold:
The employee challenged the company’s termination because it was retaliatory and discriminatory, with the sole aim of ousting him as a union representative (RSA) and therefore considered an “inconvenient employee.” The employee claimed that the misconduct was not attributable to him since the computer assigned to him did not have a password and any person could have accessed it.
The employer took legal action, rejecting the employee’s claims and emphasising the entirely causal nature of the discovery of the data since it emerged as a result of the necessary checks carried out following a hacking of its computer systems and the spread of the ransomware virus.
The Court’s decision
The Court of Venice – confirming the decision of the Judge in the summary stage of the proceedings – declared that there was just cause for termination and, consequently, the dismissal was lawful.
The Judge pointed out that the allegations against the employee had been acquired by the company under art. 4 of the Workers’ Statute. Under the above Article, the employer may legitimately acquire information from the company tools assigned to employees and use them for all purposes related to the employment relationship (including disciplinary purposes). This is on the condition that employees have been given adequate information on how to use such tools and control methods, under the Privacy Code. The company had adopted a Regulation on the use of the tools provided. Since its adoption, it had been posted on the notice board and published in a folder on the server accessible to all employees.
The Judge observed that even without considering the actual adoption of the regulation (which is the subject of censure by the employee), what mattered was the numerous and perpetual use for obvious (and not disputed) personal purposes of the computer, such that the disciplinary value of the facts existed.
Finally, the Judge rejected the employee’s complaint about the failure to place a personal password on the computer. According to the Judge, its improper use was undoubtedly attributable to the employee in question since he had: visited his account, booked trips in his name, used personal USB keys, visited social networks linked to him, etc.
In the Court’s opinion, the charges brought against the employee and legitimately acquired by the company became actual and were so severe as to justify his immediate dismissal.
The Supreme Court of Cassation, in its Order no. 21172/2021, established that a director’s waiver of remuneration may be expressed by their conclusive conduct that unequivocally reveals their intention to waive the relevant right. However, the waiving act must be inferred not from the mere failure to request compensation, whatever the reasons, but from external circumstances which give a precise negotiating meaning to the conduct.
Facts of the case
In challenging his dismissal, a manager, who was also managing director, claimed his right to receive remuneration for the position held during the relationship.
The Court of Appeal, rejected the manager’s request, because there were elements that led to the presumption that the assignment was free of charge, including (i) the non-payment of a fee for the assignment period, (ii) the absence of any request on his part during that period, and (iii) the statement made by a witness regarding the decision of the Board of Directors, in the presence of the person concerned, not to pay remuneration.
The manager thus appealed to the Court of Cassation, arguing that he had never waived his right to remuneration for the office of managing director.
The Supreme Court of Cassation’s ruling
The Court of Cassation held that the manager’s claim was well-founded. It reiterated the nature of the director’s relationship as an organic identification with the company. Secondly, it affirmed the director could waive the remuneration, even if not done expressly, as long as with a conclusive conduct “that unequivocally reveals his actual and definitive waiving will.”
As for the notion of “conclusive conduct“, the Court of Cassation referred to a general principle according to which ” for silence to have a negotiating value, it is necessary either that the common way of acting or good faith, in the relations established between the parties, impose the burden or duty to speak, or that the silence of one can be understood as adherence to the will of the other, according to a given historical and social moment and considering the quality of the parties and their business relations.”
According to the Court of Cassation, the trial Court erred in considering the inaction of the parties and the alleged decision of the Board of Directors not to specify anything about the director’s remuneration to be significant. This is because the manager’s omissive conduct cannot be seen as a manifestation of will.
The Court of Cassation thus annulled the ruling and referred the parties to a different section of the Court of Appeal.
Other related insights:
De Luca & Partners managing partner Vittorio De Luca, discusses the legislative measures that introduced the ban, initially generalised and later sectorial, of dismissals for economic reasons. The government has reached an agreement with the social partners on the dismissal prohibition, what is your take on it? “The agreement includes a “commitment” to use all existing social safety nets before resorting to redundancies, in particular the use of wage subsidies,” he stated. “The agreement in question, structured as it is, represents a pure form of recommendation and certainly not an obligation. Faced with a generalised ban from March 2020 and until March 2021, we are now faced with a diversified framework: with the Support Decree and the law converting the Support Decree bis, the ban on dismissals has been partly concluded and partly extended at certain conditions”. Looking at the European situation, the European Union has basically rejected the measure in effect from March 2020, underlining that Italy is the only Member State to have introduced a generalised ban on dismissals from the beginning of the Covid-19 crisis.
What do you think about this? “With the Recommendations published on June 2 the European Commission explained how the ban on dismissals was not particularly effective and turned out to be unnecessary considering the extensive use of systems aimed at maintaining jobs. The Commission rejected the measure pointing out that it is a measure that is to the advantage of permanent employees and detrimental for fixed-term, temporary or seasonal workers. He continued – it is necessary to emphasise that the freezing of entire manufacturing sectors risks being counterproductive because it hinders the necessary adjustment of the workforce to changing company needs”.
