The Court of Cassation, with its ruling no. 22819/2021, considered legitimate the dismissal of a worker who refused to return to the company, at the employer’s request, because the preventive suitability medical examination referred to in Article 41, paragraph 2, letter e-ter), of Legislative Decree 9 April 2008, no. 81 (Consolidated Law on health and safety at work) was not carried out.
After 12 months of sick leave following a prolonged period of illness, a railway operator worker was asked to return to the company’s offices to undergo a medical examination which would have taken place within a few days.
The worker refused to comply with the employer’s request to visit the company and the employer, after having notified her unjustified absence from work, at the end of the disciplinary procedure, dismissed her for justified subjective reason.
The Court of Appeal of Rome rejected the complaint lodged by the worker against the judgement of the Court of Rome, which rejected the objection lodged by the worker against the order, under art. 1, paragraph 51, Law 92/2012, which rejected the application for a declaration of nullity or unlawfulness of the dismissal with notice.
The worker appealed to the Court of Cassation against the Court of Appeal’s decision.
Article 41, paragraph 2, letter e-ter of the Consolidated Law on health and safety at work requires that health monitoring includes “medical examinations before the resumption of work, following an absence for health reasons lasting more than 60 continuous days, to verify work suitability.”
The Court of Appeal found that the preventive medical examination in question constituted a check that the Law did not consider as a legal condition for resuming work.
Since the preventive medical examination referred to in Art. 41 of the Consolidated Law was not a condition for resuming work, according to the Court of Appeal, the refusal to continue work constituted an unjustified absence, to which dismissal with notice was legitimate.
The Court of Cassation held that the preventive medical examination referred to in Art. 41 of the Consolidated Law aims to verify the suitability for the tasks and restore to general work and not a specific task.
The Supreme Court, in previous similar cases of termination for just cause, stated “the rule should be read – according to an interpretation consistent with its literal wording and purpose – in the sense that the “resumption of work” against which the medical examination must be “prior”, is the practical assignment of the worker to the same tasks previously carried out, when they return to the company after an absence for health reasons lasting more than 60 days, since these are theonly tasks for which it is necessary to carry out a check of “suitability” i.e. ascertain whether the worker can carry them out without prejudice or risk to their psycho-physical integrity.” “The worker, if once again assigned to the same tasks assigned before the start of the absence period, may refrain from carrying out the same tasks, under Art. 1460 of the Civil Code, given that the medical examination provided for by the rule is part of the fundamental entrepreneurial obligation to prepare and implement the measures necessary to protect the worker’s safety and health” (Court of Cassation ruling no. 7566/2020). Consequently, “their omission may constitute a serious breach by the employer which, if appropriate, legitimises the exception of breach by the worker under art. 1460 of the Civil Code” ( Court of Cassation – Joint Chambers ruling 22 May 2018, no. 12568).
The Court of Cassation pointed out that the case in which the worker refuses to return to the company must be kept separate from this hypothesis.
The Court of Cassation noted that, once the reason justifying the absence ceases to exist (in this case the worker exceeded her required leave of absence), the worker cannot be allowed to refrain from going to work.
The Supreme Court emphasised that such a request is to be considered “a moment distinct from the assignment of duties, since it is intended to make the relationship operative again and the employer may arrange a different placement of their employee within the company organisation, as part of their powers, even if provisionally and pending the completion of the medical examination and the related suitability check“ (see Court of Cassation ruling no. 7566/2020).
Based on the above, the Court of Cassation held that the worker’s refusal to return to the company was unjustified and confirmed the legitimacy of the disciplinary dismissal with notice.
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In a ruling dated 8 July 2021, the Court of Trento, upheld a disciplinary dismissal (for just cause) imposed on a teacher who repeatedly refused to wear a protective mask while working at school.
In this case, the teacher, employed by the Autonomous Province of Trento, refused to comply with an order issued by the head of the educational activities department, who asked her to wear a protective mask to ensure the health and safety of children, colleagues and the school community. In support of her refusal, during the disciplinary proceedings, the employee claimed that she did not want to wear the mask because she was a “conscientious objector” and that additionally, she was unable to do so for health reasons. Dismissed for just cause, she appealed to the employment tribunal of Trento, requesting reinstatement.
The Tribunal found that the allegations made by the employee did not include any medical certification capable of justifying her refusal to wear the mask. Her conduct conflicted with the guidelines for the protection of health approved by the President of the Autonomous Province of Trento by order of 25 August 2020 and, at national level, with the Protocol for the protection of health and safety at work, and the Memorandum of Understanding signed by the Ministry of Education on 6 August 2020, prescribing the obligation “for anyone entering school environments” to “adopt hygienic precautions and use a mask.”
According to the Court of Trento, the above administrative measures were based on the legislator’s will (Article 16, paragraph 1, of Decree 18/2020), which sees masks as personal protective equipment. Based on previous Court of Cassation guidelines (25932/2013 and 18265/2013), the Trento court judge recalled that “the persistent refusal by the employee to use the personal protective equipment justifies the dismissal of the defaulting employee.”
Continue reading the full version published on Il Quotidiano del Lavoro of Il Sole 24 Ore.
The Court of Cassation, in ruling no. 20560 published on 19 July 2021 confirmed the facts subject of a plea bargain in a criminal case must be established (with the effect of res judicata) to any pending civil proceedings concerning the same findings. The Supreme Court’s ruling stems from the lawful dismissal for misconduct by the Ministry of Justice of a court clerk for having – together with other colleagues – falsely certified his presence at work.
The parties were first involved in a criminal trial that ended with a plea bargain. Later the employee appeared before the Employment Tribunal to the appeal against the employment termination. In the employment proceedings, the Court of Appeal of Milan, overturned the judgement of the Court of Lodi which had initially upheld the employee’s appeal, ruled on the legitimacy of the disciplinary dismissal imposed on the employee. It found (based on the plea bargain) that an unlawful system was operating at the judicial office in which certain employees covered for each other’s tardiness and absences by abusing the clock-in badge system.
The seriousness of the conduct was further increased by the fact that the appellant was the chief registrar. The employee challenged the judgement handed down by the local Court on several grounds, including the alleged infringement of Articles 115 and 2697 of the Code of Civil Procedure about availability and burden of proof, since the Court of Appeal based its belief on facts established in the criminal proceedings. In the employee’s view, the plea-bargaining judgement could not have been used as a basis for the employment judge’s finding because it came after the dismissal and was incapable of providing elements for assessing the actual existence of the act and its seriousness. The grounds of appeal were rejected by the Supreme Court, which confirmed the dismissal legitimacy.
Continue reading the full version published in Norme & Tributi Plus Diritto of Il Sole 24 Ore.
In a 2 July 2021 order, The Court of Milan ruled that, dismissals announced by the same company to six executives, in the same period and based on the same objective reasons, were part of the collective redundancies subject to the prohibition during the pandemic. The Court held that it was irrelevant that four of the six dismissals had been revoked, the employment relationship reinstated and subsequently terminated by mutual consent.
In February 2021, a company in liquidation dismissed an executive for objective justified reasons on the grounds of an alleged reduction in business activity and turnover and the termination of his position. The executive challenged the dismissal in Court, pointing out that, within about six weeks and based on the same objective grounds, the company had dismissed five other executives, implying that his dismissal was covered by the collective dismissals referred to in Articles 4, 5 and 24 of Law no. 223/1991, prohibited by the emergency Covid-19 legislation.
The company, which appeared in Court, pointed out that during that period, there had been two dismissals and not six, since four of the six executive employment relationships had ended consensually and against a financial incentive (the notice of dismissal had been followed by a revocation, reinstatement of the relationship and consensual termination).
The Court upheld the executive’s appeal, holding that the subsequent revocation of four of the six dismissals was irrelevant and could not prevent the case from being one of collective redundancy since the wording of Art. 24 of Italian Law no. 223/1991 leaves no room for any other interpretation.
Under the above law, an employer who employs more than 15 employees and intends to make at least five redundancies within 120 days because of a reduction or transformation of business or work, must comply with the procedures laid down by the same law. Therefore, for collective redundancy definition purposes, it is irrelevant if the number of employees dismissed is lower.
In this case, in the Court’s view, the numerical requirement under the law had been met upstream when the company had made six redundancies within about six weeks, openly expressing its intention to terminate the employment relationship.
Having ascertained the existence of collective dismissal, the Court found that the executive’s employment termination was null and void for breach of the rules on the collective dismissal prohibition laid down in Art. 46 of Decree Law no. 18/2020 and repeatedly extended “whose imperative nature and public order reasons cannot be doubted”. The Court ordered the company to reinstate the executive in his job and pay him compensation.
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On 16 June 2021, Confcommercio Imprese per l’Italia and Manageritalia signed an agreement to extend the NCLA of 21 July 2016 until 31 December 2021. With the same agreement, the Social Partners have amended some Agreement provisions. The main changes include the maximum duration of the protected period, which is confirmed as 240 days in a calendar year, clarifying that “calendar year” means 365 days backwards from the last illness. In addition, from July 1th , 2021, the employer shall pay to an organisation called CFMT (Centro di Formazione Management del Terziario – Tertiary Management Training Centre), , a contribution of €2500 – if there is an employment relationship termination, including following a settlement agreement or conciliation, except in the case of termination for just cause, disciplinary dismissal, voluntary resignation and consensual termination – for the activation of an outplacement service or for access to active policy programmes aimed at outplacement of executives. New concepts are introduced about the notice period commencement in case ofresignation or dismissal. The notice period for dismissal, from 1 July 2021 shall commence on the 1st or 16th day of each month, depending on whether the employer receives the resignation notice in the second fortnight of the previous month or the first fortnight of the current month, respectively. Effective from 1 July 2021, the notice period for dismissal shall run from the 1st or 16th day of each month, depending on whether the executive receives the dismissal notice in the second fortnight of the previous month or the first fortnight of the current month, respectively. The executive shall be entitled to receive their full remuneration for the portion of the month in which the dismissal notice was received.
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