Art. 6 of Italian Law no. 604/1966 states that:
That said, Article 83, paragraph 2 of the Cura Italia Decree, and Article 36, paragraph 1 of the Liquidity Decree, laid down, among the measures to combat the health emergency due to the spread of the COVID-19 virus, the “extraordinary” suspension of procedural terms from 9 March 2020 until the following 11 May.
In relation to appealing a dismissal, the Court of Milan, with measure dated 14 October 2020 no. 5145, stated that the suspension of the terms in question does not apply only to the term of 180 days relating to the judicial appeal of the dismissal but also to the forfeiture period of 60 days relating to its extrajudicial appeal.
In the Court’s opinion, a restrictive interpretation would contrast with the unitary nature of the two terms of appeal and with the “rationale of the urgent decree to limit the negative consequences of the pandemic also for the jurisdictional protection of rights”.
From another profile, the Courts of Rome and Palermo recently focused on the appeal of the dismissal, sent by certified email as an annex – scan of the original – and thus an image copy not containing the authentic signature of the interested party.
The Court of Rome, with its ruling dated 20 October 2020, no. 86577, declared that the dismissal may be appealed, indifferently, both (i) by attaching to the certified email an electronic document (known as “digital native document”) and (ii) by sending the scan of the paper document signed by the lawyer and by the interested party, even if not having any digital signature.
The Court of Palermo took a different stance, with its ruling dated 28 October 2020, no. 30615, declaring ineffective the appeal of the dismissal sent by the employee’s lawyer to the employer, by certified email, if it is not accompanied by the digital signature or by a certification of conformity of the documents.
It is hoped that the case law contrast that has now come to light on the issue will soon be resolved by a decision of the Supreme Court or by a regulatory change.
Establishing, in fact, whether or not the appeal as an image copy is effective is crucial in deciding if the document thus produced has the value of a document interrupting the limitation period indicated in Art. 6 of Italian Law no. 604/1966.
Other insights related:
The articles written by Vittorio De Luca and Antonella Iacobellis lingers over two aspects regarding to the out-of-court appeal.
Source: Guida al lavoro – Il Sole 24 ore.
Since the beginning of February 2020, the Italian public authorities have issued several emergency provisions to contain the risk of contagion and mitigate the economic and social effects of the pandemic ensuring financial support to families, businesses and workers. Furthermore, as consequence of the ongoing emergency the Italian Government continues to postpone the effectiveness of some emergency measures and introduces new ones since the epidemiological state of emergency, to date, expires on January 31st, 2021. All companies are going through a critical time since they must ensure an adequate level of safety in accordance with the new emergency regulations. In particular the complex situation requires companies to deal mainly with the following topics:
In order to grant relief to all employers, social shock absorbers have been introduced by Italian Government, which can be used during the emergency period to allow the employer to suspend the employees from working within the frame of the economic downturn caused by the Covid-19. In particular, starting from February 2020, the Italian Government has provided companies with the following social shock absorbers, known in Italy as:
Except from general principles of correctness and good faith, no particular restrictions apply to the employer on the choice criteria of the employees to be suspended under the social shock absorbed and those required to continue working. It should be noted that the executives are not granted with this social shock absorbed. Companies to identify the right shock absorber will refer to the general rules that consider the number of employees and product category to which they belong. From a general standpoint CIGO is granted to industrial companies, while FIS is granted commercial companies employed 5 and 50 employees. The other instrument – CIGD – supports companies do not have access to the other support instruments. As far as the duration is concerned the government has extended the duration of the social shock absorbers several times during the year. As of today, the duration is as follows:
No. 18 weeks are available since July 13th, 2020 to December 31st, 2020 for employees hired before November 9th, 2020. No payment is due by the employer to access to the first 9 weeks whereas a mandatory contribution is due for the additional 9 weeks for companies that did not suffer a substantial loss of turnover in 2020. The contribution is equal to a percentage (ranging between 9% and 18%) of the total remuneration that would be due to employees for the suspended/reduced working hours; the amount of the contribution depends on the reduction of the company’s turnover in the 2020 first half, if compared to the 2019 first half turnover;
additional no. 6 weeks to be enjoyed from November 16th, 2020 to January 31st, 2021 has been introduced for the companies that have entirely enjoyed the above 18 weeks. The employees hired before November 4th, 2020 may have access to the 6 weeks furlough. It should be noted that no payments are due for certain categories of companies (such as restaurants) and for companies that in the first half of 2020 have suffered a reduction in turnover of 20% or more compared to the same period of the previous year. In other cases, the law provides for an additional compulsory contribution ranging between 9% and 18%.
Based on a greatly simplified procedure applicable for Covid-19 related suspensions, to access the social shock absorbers employers must now trigger a unions’ consultation procedure with an invite addressed to the signatory union parties of the collective bargaining agreement applied by the company (and internal work councils) to meet for a consultation on the need to access the social shock treatments. Following the communication, within three days, the unions may ask for a consultation meeting.
Applications to access to CIGO and FIS wage supplement schemes shall be sent to INPS whereas applications for CIGD are presented at regional level, depending on the location of the employer. The indemnity paid to the employees amounts to 80% of the ordinary remuneration due to the employee, up to certain thresholds (the maximum indemnity is equal to approximately EUR 1,200 gross per month). As far as CIGO and FIS the employer may decide (usually within the frame of the consultation procedure) to grant the indemnity as an advance payment to the employees concerned. On the contrary the CIGD indemnity is paid directly by the INPS to the employee.
As alternative to the application of the social shock absorbers, the Italian government has provided companies (except for those belonging to the agricultural sector) with special social security contributions exemption, except for premiums and contributions due to National Institute for Insurance against Accidents at Work (in Italian parlance “INAIL”). According to Article 3 of the Law Decree n. 104/2020 (so-called “Decreto Agosto”) companies that have not applied for the 18 weeks of social stock wage but have already benefited from the Covid-19 social shock absorbers in May and June 2020 may apply for exemption from social security contributions due by them, for a maximum of 4 months, until December 31st, 2020. The exemption shall also be allowed for employers who requested wage supplement periods in accordance with Law Decree no. 18 of March 17th, 2020, even partially, in periods following July 12th, 2020.
The amount of social security contributions exemption may not exceed twice of the hours of wage supplementation already received by the companies in May and June 2020. Furthermore, a special social security contributions exemption is granted to employers that hire employees under an open-ended contract, in the event of an increase in net employment (for a maximum period of 6 months since the hiring). The maximum limit of exemption is equal approximately to EUR 8,000 on an annual basis. This exemption will also be allowed in case of transformation of the employment agreement from temporary to permanent.
Lastly, according to Article 12 of the Law Decree no. 137/2020 (so called “Decreto Ristori”) the non-agricultural employers who do not apply for the 6 weeks shock absorbers treatment provided by Decreto Ristori (i.e. additional 6 weeks described under the above paragraph) are granted with an exemption from the payment of social security contributions, for an additional maximum period of four weeks, usable within January 31st, 2021. The amount of social security contributions exemption may not exceed the hours of wage supplementation already received by the companies in June 2020.
Until December 2020, employers are entitled to extend or renew fixed-term contracts even in absence of the grounds prescribed by Article 19, paragraph 1, of Legislative Decree no. 81/2015. Extensions or renewals must be made no later than December 31st, 2020, but the expiry date of such contracts may be later than that date. The overall maximum duration of the fixed term contract remains 24 months as provided by Article 19 of the Legislative Decree no. 81/2015.
The current emergency due to the spread of Covid-19 led the Italian Government to ban dismissals pursuant to Article 3 of Law no. 604/1966 and collective dismissal pursuant to Law no. 223/1991, except for the following hypotheses:
definitive cessation of the business, with liquidation of the company. However, the closure of a production unit does not itself lead to the suspension of the ban on dismissal;
collective company agreement with the comparatively most representative trade unions on a national level, containing a layoff incentive for subscribing employees. The union counterparties of these agreements are those that are comparatively more representative at national level. The concept of collective contract was introduced by Article 51 of Legislative Decree no. 81/2015 stating that such contracts are “national, territorial or company contracts signed by unions comparatively more representative at national level. The employees who adhere will receive involuntary unemployment benefits (so called “NASPI”);
bankruptcy without any provisional exercise of the activity, with total cessation of the same;
the personnel affected by the dismissal, already employed in the contract, are hired following the takeover of a new contractor by virtue of the law, of the national collective labor agreement or clause of the contract.
In the emergency phase a simplified mode of remote working has been introduced. Indeed until the end of the epidemiological state of emergency, the remote working may be activated even in the absence of individual agreements. As consequence once the emergency shall have expired it is necessary to switch from the emergency remote-working to the ordinary one regulated by Legislative Decree no. 81/2017. The Covid-19 emergency has awakened interest in remote or agile working, with the aim of limiting the spread of the virus and ensuring business continuity. In addition, with the overcoming of the emergency phase, it is to be hoped that remote working recovers the original spirit aimed at increasing competitiveness and a greater possibility of reconciliation of life and work. Lastly, even though it is possible to activate the remote working in the simplified variant for Covid-19 without the individual agreement with the employee, it must be considered very useful to provide in any case an individual agreement in order to discipline, for example: (i) the control power of the employer, (ii) certain profiles related to the use of IT tools that have obvious privacy implications, (iii) the so-called right to disconnect (the times of non-work, of unavailability).
Source: Invest in Tuscany
The Court of Cassation, with its ruling no. 16253 of 29 July 2020, expressed its opinion on the applicability of the “mitigated” reinstatement protection (with employment re-establishment and compensation up to a maximum of 12 months’ salary) in cases with no underlying cause for dismissal for objective justified reasons.
The case in question originates from a judicial appeal by an employee against dismissal based on justified objective grounds after the contract under which they were employed was terminated.
The Court of Appeal of Rome, hearing the employer’s complaint, upheld the worker’s request and confirmed the first instance decision declaring the dismissal illegitimate on the assumption that the defendant company had not demonstrated a relationship between the loss of the contract and the loss of the redundant worker’s usefulness.
The Board of Appeal ruled that the contract termination did not constitute an objective justified reason for dismissal in the absence of proof of the necessary causal link between the organisational and production reason underlying the employment termination, given that the employee was not exclusively or predominantly involved in that contract.
The losing company appealed to the Court of Cassation against the decision on the merits, complaining about the incorrect application of paragraphs 4 and 7 of article 18 of Italian Law 300/1970.
The Court of Cassation, in rejecting the appeal filed by the company, focused on analysing the discrimination between the application of the indemnity protection under art. 18, paragraph 5 (all-inclusive indemnity between a minimum of 12 and a maximum of 24 months’ salary) and the “mitigated” reinstatement protection provided for in art. 18, paragraph 4 in cases of dismissal for objective reasons, under Article 18, paragraph 7 of Italian Law 300/1970.
This last provision grants the judge the power to apply the “mitigated” reinstatement protection rules in cases where they find “a lack of an underlying cause for dismissal for objective justified reasons.”
According to the Supreme Court, the legislator’s intentions should be interpreted in the sense of attributing a residual nature to reinstatement protection which functions as an exception to the indemnity protection rule in cases of dismissal for objective justified reasons.
The Supreme Court recalled a recent ruling (Cassation decision no. 29101 of 11 November 2019), on individual dismissal for justified objective reason, “the lack of a causal link between the employer’s termination and the underlying reason can be classified within the evidence required to supplement the manifest lack of a cause that justifies the mitigated reinstatement protection under article 18, paragraph 7, Italian Law 300/1970 as amended by Law 92/2012.”
The Court of Cassation observed that “the absolute lack of connection between the contract termination and the work carried out by the worker, led the Court to exclude the existence of a causal link and the fact constituting a justified objective reason for dismissal.” The Court continued: this “ictu oculi” absence, would result in the “manifest lack of fact as it appears to be so evident to have correctly induced the second instance judge to opt for a mitigated reinstatement protection referred to in paragraph 4 of article 18 in its combined effect with the seventh paragraph.”
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The judgement raises many doubts about the long-standing uncertainty regarding the application of reinstatement protection in cases of dismissal for justified objective reasons deemed unlawful. The Court’s conclusion appears controversial in a certain sense, as it supports the residual nature of reinstatement protection opposed to indemnification. However, it links the concept of manifest absence of the cause underlying the dismissal (which allows the judge to apply mitigated reinstatement protection) to cases in which the judge considers there is a lack of a causal link.
Others Insights related:
Legislative Decree n. 104/2020 (so-called “Decreto Agosto”) has just been published in the Official Gazette n. 203 of August 14, 2020.
The most significant innovations concerning the employment profiles introduced by Legislative Decree n. 104/2020 are the following:
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The partners and associates of De Luca & Partners law firm remain available to provide any information necessary to deal with the emergency, as well as to develop the best strategies to minimize its impact on business productivity.
