The Labour Court of Padua, by ruling dated 4 October 2019, established that dismissal for just cause of employees who falsely attest to their presence in the office is permitted – and, therefore, lawful -, even if said conduct is ascertained by the investigative agencies. The case on which the Court of First Instance was called upon to decide refers to an employee hired with development technician within the context of the process of opening new sales outlets. The employee benefited from a position with independent access located in Bologna, adjacent to one of the company’s sales outlets, but entirely independent of said company, separated by a wall. The employee was required to register his entry and exit times via a badge stamping system or, should he forget, by manually entering the times in a special printout provided by the company (a method considered supplementary and not alternative to the former). Having said this, an employee at the company’s security office went to carry out checks on the alarm system at the sales outlet in Bologna and, on that occasion, visited the office next to that of the employee, who, that day, was not on at the office. The employee at the Security Department warned the company, which initiated a series of checks of the employee’s attendance records, noting that the latter often recorded his attendance by entering his times manually in the printout. In this context, the company considered it appropriate to initiate a series of checks, via an investigative agency, on the activities carried out by the appellant. From the investigations, it emerged that, during working hours, albeit attesting otherwise on the attendance sheet, the employee often used to carry out personal matters instead of carrying out his activities for the company, this was also carried out for a long period of time, which was obviously duly paid. This conduct was subject to disciplinary proceedings which led to the employee being dismissed for just cause. Therefore, said employee, following the appeal of the dismissal, filed an appeal with the Court of Padua, which called upon the Honourable Court to ascertain and declare the nullity and/or voidability and/or ineffectiveness and/or illegitimacy of the dismissal ordered by the company given that it was without just cause and, in any case, related to conduct that is punishable by a conservative disciplinary measure. The company duly appeared in court, contesting all charges and also demanding that the appellant be ordered to pay the legal fees.

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The Court of Appeal, by ruling 26029 dated 15 October 2019, reconfirmed that the dismissal of a compulsorily employed employee must be considered voidable in the context of a collective staff reduction procedure if, at the time of the termination of the employment contract, the number of remaining compulsorily employed employees is less than the special reserve and clarified that the consequences of the aforementioned voidability of the dismissal must be attributed to those actionable in the case of unlawful dismissal due to ascertained breach of the selection criteria. The case on which the Supreme Court was called upon to decide refers to an employee hired under the mandatory placement regulations, dismissed in the context of a collective procedure. The regional courts, called in the first and second instance to decide on the employee’s request aimed at obtaining a declaration of unlawfulness of the dismissal with all legal consequences, had accepted the request, sentencing the company to reinstate said employee in the workplace and to pay compensation equal to 12 monthly salaries of the final overall de facto remuneration. The Rome Court of Appeal had specifically confirmed the first instance decision based on the assumption that it was undisputed that he was a mandatorily hired employee, on the circumstance to be considered amicable under internal ruling, given that the employee had not provided evidence to the contrary, that, at the time of the termination of the employment contract the number of mandatorily employed employees was less than the special reserve. The company filed an appeal against the ruling of the Court of Rome, supported by a single ground. The employer claimed that it had not selected the disabled individual to dismiss him, but having applied a clause of the union agreement that provided for the outsourcing of the department in which he worked and having, in any case, offered the employee a relocation within the same production site and to the same tasks that he previously carried out, employed by the department’s contracting company, an offer that he had rejected. The Court of Appeal, in rejecting the employer’s ground of appeal, echoing the text of Article 10, paragraph 4, of Law 68 of 1999, according to which the dismissal referred to in Article 4, paragraph 9 of Law number 223 dated 23 July 1991, namely, dismissal to reduce the workforce or to for justified objective reason, exercised against the mandatorily hired employee, is voidable if, at the time of termination of the employment contract, the number of remaining mandatorily hired employees is less than the special reserve provided for by Article 3 of this law, specified as follows.

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The Court of Cassation, in its judgement 21628/2019, stated that extending the lunch break beyond the time allowed and not having completed the work is more serious than absence from work.

The facts

A postman was fired for “having been remained on two occasions with others well beyond the anticipated lunch period, while leaving the mail assigned to him and the vehicle provided unattended. All without having completed his work for not having delivered two packages“.

The Court of Appeals with territorial jurisdiction upheld the decision of the first instance, stating, among other things, that “the conduct is carried out with clear awareness in the violation of the company rules inferable from the manner in which it is carried out“.

The worker appealed against the decision on two grounds in Cassation, to which the company appealed with counter-claim.

The decision of the Court of Cassation

The worker, among other things, argued that the charge against him was one of the cases for which the sectoral national collective bargaining agreement provided for a conservative penalty. Consequently, the court could not impose a more serious penalty than that indicated by the social parties.

This reason was considered unfounded by the Court of Cassation in light of the principles it had recently expressed (see Cassation no. 12365 of 2019, Cassation conf. no. 14064, 14247, 14248, 14500 of 2019). In particular, only where the disputed and ascertained fact is expressly contemplated by a provision of a source of negotiation binding on the employer, which typifies the conduct of the worker as punishable by conservative sanction, the dismissal can be declared illegitimate and, therefore, also worthy of the reintegration protection provided for in amended Art. 18 paragraph 4.

According to the Court of Cassation, in the present case, contrary to what the worker claims, the Court of Appeals held that the conduct complained of was more serious because: “it was carried out with other employees and was noticed by the community to the point that there was also a complaint against the malfunctioning of the service by the inhabitants of the area concerned from which the investigations arose; during the time spent at lunch after the break granted, the employee could well have completed the research needed to deliver the packages which had remained unprocessed; P., who normally spent time at the restaurant, had left the company vehicle completely unattended during those times”.

These facts, in the opinion of the Court of Cassation, appreciated by the Territorial Court and unquestionable in terms of legitimacy, “are certainly suitable for excluding the continuation of the charges as ascertained by the court of merit to the more general provision of habitual negligence or habitual non-compliance with service obligations punishable by a conservative sanction by the collective bargaining.

In the opinion of the Court of Cassation, the assumption of the Court of Appeal according to which: “the unjustified absence from work of an employee is in fact less serious than the conduct of a person who, despite being regularly on duty, chooses to spend time with others beyond the permitted time, without having fully performed the tasks entrusted to him and inherent in his duties.

According to the Court of Cassation, in this case there is a serious breach of the contractual obligations incumbent on the employee, who shows a particularly strong intentional element.

In view of all the above, the Court of Cassation rejected the employee’s appeal, confirmed the legitimacy of the dismissal ordered against him and settled the costs according to the principle to be borne by the losing party.

The Court of Cassation, with judgement 18887 of 15 July 2019, declared illegitimate the dismissal of the worker who refused to work on a day during the week when there was a holiday celebrating a civil event.

Facts of the case

In this specific case, a company, faced with the refusal of one of its employees to work on 1 May, carried out disciplinary proceedings against them, which ended with an injunction to dismiss for just cause.

The worker thus appealed to the judicial authority for it, among other things, to declare the dismissal unlawful and to order the company, his former employer, to reinstate his job and to pay him compensation commensurate with his total remuneration from the moment of withdrawal to the day of actual return.

The Court of Appeals with territorial jurisdiction, overturning the judgement of first instance, converted the employer’s withdrawal into “dismissal for justified subjective reason”, sentencing the company to pay compensation in lieu of notice.

The courts based their decision, inter alia, specifying that: (a) under the provisions of the industry national collective bargaining agreement it was possible for employees to be required to work on public holidays, obviously within the limits established, the exceeding of which, in the present case, was not documented; (b) the classification of insubordination noted in the court of first instance relative to the conduct of the worker was correct but, since it was not carried out in a violent manner and there was no serious harm to the company, the dismissal should have been adopted for justified subjective reasons and with notice.

The employee appealed to the Court of Cassation against the decision of the Court of Appeals.

The decision of the Court of Cassation

The Court of Cassation, in upholding the employee’s appeal, observed that the courts had erred in ordering the obligation to work on 1 May on the basis of a mere interpretation of the industry national collective bargaining agreement, which contains a general reference to holiday work. This is because Law 260/1949 takes precedence.

According to the Court, this law is complete and self-sufficient in recognising the worker’s right to refrain from working on certain festivities celebrating religious and civil events, with the exclusion, therefore, of any analogical additions of mixing it with other disciplines.

Also according to the Court, only persons employed by public and private health institutions are obliged to provide services during events, such as 25 May and 1 May, provided that the needs for service permit rest time. Otherwise, the employer may not unilaterally waive the use of the rest period, even if it depends on production requirements.

Moreover, the worker’s right to abstain from work during midweek holidays celebrating civil events is a subjective right and is replete with a general nature.

This right cannot, therefore, be undermined by the employer, to be able to renounce to the rest period during the midweek holidays only by virtue of an individual agreement or an agreement stipulated with the trade unions to which the worker has given an explicit mandate.

On the basis of these principles, the Court of Cassation concluded that the dismissal of the worker, with all the legal consequences, was unlawful.

The Court of Cassation, by judgment no. 12174 dated 8 May 2019, ruled on art. 3, paragraph 2, of the Legislative Decree. 23/2015 stating, “the non-existence of the disputed material fact toward the worker, with respect to whom any assessment regarding the disproportion of the dismissal remains extraneous, includes not only the cases in which the fact has not occurred in terms of its materiality, but also all the hypotheses in which the fact, having occurred, bears no disciplinary significance“.

The facts

The Court of Genoa, hearing an action brought by a worker dismissed for having left her job, declared the disciplinary dismissal ordered unlawful and terminated the employment relationship from the date of dismissal itself, ordering the employer (in absentia) to pay compensation equal to four months’ salary, plus the costs of litigation.

The worker appealed the first instance decision in order to obtain recognition of the reintegration protection provided for by art. 3, paragraph 2, of the Legislative Decree 23/2015 on the ground that the contested material fact did not exist.

The District Court, in rejecting the exception formulated by the worker, observed that the conduct challenged had not been denied by the same in its historical reality, but rather it could not be considered, for the circumstances in which it occurred, to possess such gravity as to justify the removal measure.

Therefore, in the opinion of the Court of Appeal, the Court of First Instance correctly recognised the protection of damages pursuant to Article 3(1) of Legislative Decree No. 23/2015, quantified in 4 monthly instalments.

The employee appealed the Court of Appeal judgment before the Court of Cassation, invoking two grounds.

Applicable standards

The case in question falls within the scope of the Legislative Decree 23/2015, issued in implementation of Law 183/2014 which delegated, among other things, the Government to adopt one or more legislative decrees “in order to strengthen the opportunities for entry into the world of work of those seeking employment, as well as to reorganize existing employment contracts to render them more consistent with the current needs of the employment and production context and to render the inspection activity more efficient.”.

Among the principles and guidelines that the Government had to follow in completing this task, Law 183/2014 had also established “the provision for new hires under permanent contracts under increasing protection“, with respect to which the possibility of reintegration into employment had to be limited to null and discriminatory dismissals and specific cases of unjustified disciplinary dismissal.

In execution of these principles and criteria, the Legislative Decree 23/2015 was issued establishing the protection of workers, hired after 7 March 2015 (date of entry into force of the Decree) and for specific categories of workers who, although hired before that date, are recipients of the same, reintegration in residual cases. This occurred without changing the existing legal concepts of “just cause” and “justified” employer withdrawal.

Specifically, paragraph 1 of Italian Legislative Decree no. 23/2015 provides, “in cases where it is established that there is no dismissal for a justified objective reason or for a justified subjective or just cause, the judge shall declare the employment relationship terminated at the date of dismissal and shall order the employer to pay an indemnity (…)“.

Paragraph 2 of the same article provides, “only in the event of dismissal for justified subjective reason or just cause in which the absence of the material fact alleged against the worker is directly demonstrated in court, in respect of which there is no assessment of the disproportion of dismissal, the court cancels the dismissal and condemns the employer to the reintegration of the worker in the workplace and the payment of compensation (…)“.

The decision of the Court of Cassation

The Court of Cassation argues that the articulation of the protections provided for in Legislative Decree no. 23/2015 recalls the one already undertaken by Law 92/2012 (Fornero Law), also in its logic of considering the residual reintegration with respect to the indemnification protection.

Again in the opinion of the Court of Cassation, the expressions used by the Legislative Decree no. 23/2015 (“disputed material fact”) cannot but refer to the same concept of “disputed material fact” as developed by the case-law on lawfulness in relation to Article 18(4) of Law No 300/1970.

The fact that an event has occurred, but is disciplinarily completely irrelevant, cannot be punished using a different treatment from that provided for in cases where the event has not been committed. This is because the dismissal needs justification and is illegitimate if it is not supported by a “justified reason” or a “just cause”.

In support of this assumption, according to the Court of Cassation, there is the constitutionally oriented reading of the rule, having to affirm that “any judgment of responsibility, in whatever field of punitive law is expressed, requires for the material fact ascribed, from a subjective point of view, the referability of the same to the agent and, from an objective point of view, its referability in the actions legally appreciable as a source of responsibility”.

To reinforce this conclusion, one must consider that art. 3 of Legislative Decree no. 23/2015, similar to Article 18(4) of Law No 300/1970, refers to the dispute and, therefore, the “material fact complained of” is the fact that it is not only materially integrated but it also bear disciplinary significance.

The different lexical solution adopted by the legislator in 2015 is explained, according to the Supreme Court, by “the need to dispel interpretative doubts which at the time were well present in the jurisprudential and doctrinal debate regarding paragraph 4 of Article 18 of the new text“.

The Court thus overturned the ruling of the Court of Appeal, referring the case back to the court dealing with the substance of a case to ascertain whether the fact, although materially occurring, was of disciplinary importance.