The Court of Cassation, in order No. 9268 of 3 April 2019, has affirmed that the dismissal for justified objective reasons of a pregnant employee during the notice period is lawful but unenforceable, as occurs in the case of termination during sick leave or absence for injuries.
The facts
In overturning the first instance ruling, the territorially competent Court of Appeal rejected a worker’s application to overturn her dismissal for justified objective reasons pursuant to art. 54 of Legislative Decree 151/2001. In detail, the Court of Appeal held that the dismissal had been formally notified on the date the letter of dismissal was received, regardless of the fact that related effects would arise at the end of the notice period.
In fact, the trial court, having inferred the actual start date of the pregnancy from the medical records submitted and from the expert witness report acquired in the first instance proceeding, found that the pregnancy started after the date of dismissal.
The worker challenged the decision before the Court of Cassation, objecting, among other things, that the onset of pregnancy during the notice period triggered the applicability of the safeguards set out in Legislative Decree 151/2001. This is so because the employment relationship continues during the notice period, with the associated rights and obligations, unless the worker accepts to terminate the relationship immediately or earlier.
The Court of Cassation confirmed the decision of the Court of Appeal, rejecting the worker’s application.
The ruling of the Court
The Court of Cassation reviewing the case highlighted that, according to established case law, a dismissal is a unilateral act that becomes effective from the moment the employer’s intentions are manifested and made known to the worker. This is so notwithstanding the fact that effects of the dismissal – typically, the termination of the employment relationship – may be deferred to a later date.
Consequently, the assessment of the conditions legitimating the right of termination must be conducted “with reference to the moment the unilateral act was formally notified and not with reference, in the case of dismissal with notice, to the successive end date of the notice period”.
According to the Court of Cassation, this was the principle on which the lower courts had based their decision. In fact, the lower courts had excluded the invalidity of the dismissal pursuant to art. 54 of Legislative Decree 151/2019 on the grounds that the dismissal had been communicated and formally notified to the worker when she was not pregnant.
For the Court of Cassation, the Court of Appeal had also rightly made reference to art. 54, paragraph 5, of Legislative Decree 151/2001, which considers null and void a notice of dismissal given “from the start of the pregnancy to the end of the maternity leave and until the child is one year old” and not when the related effects arise.
Therefore, a pregnancy arising during the notice period does not affect the validity of the dismissal notified to the worker at an earlier date. The Supreme Court did highlight that a pregnancy is an event that may satisfy the requirements, pursuant to art. 2110 of the civil code, to suspend the notice period.
However, in the case at hand, the worker’s claim was founded solely on the invalidity of the dismissal and not also on unenforceability ensuing from the suspension of the notice period, with the case thus rejected.
With judgment no. 3147 of 1 February 2019, the Court of Cassation remarked that the employers can supplement the grounds for dismissal in the course of proceedings if these are insufficient or generic.
The facts
The Court of Appeal having jurisdiction, upholding the judgment of the Court of first instance, had declared that the dismissal of a manager, namely “Plant Manager“, was legitimate.
More specifically, the Court of Appeal had ruled that:
The manager filed an opposition before to the Court of Cassation against the decision of the Court of Appeal.
The decision of the Court of Cassation
According to the Court of Cassation, the lower-degree courts have correctly interpreted Article 22, National Collective Labour Agreement for Industrial Managers of 1985, evaluating the content of its contractual clause and the relevance attributed by the parties to the lack or incompleteness of the grounds of dismissal, a relevance that can be appreciated by reading the entire provision.
More specifically, Article 22 sets out that “in the event of termination of permanent employment, the terminating party must serve a written notice thereof to the other party. In the event of termination on the part of the employer, this is obligated to specify at that time the reason thereof. If the manager believes that the reason given by the company is insufficient, or if this information is not provided at the time of the notice of dismissal, the manager can apply to the Arbitration Court referred to in Article 19 (…).”
According to the Court of Cassation, the judges of the lower courts have rightly explained that:
In detail, the Court of Cassation, confirming its previous approach, remarked that a manager’s dismissal should be considered illegitimate – and consequently the employer obligated to pay the supplementary allowance provided under the Collective Labour Agreement – if this is not based on any reasons or is based on flimsy excuses and therefore untruthful reasons.
In the case at hand, instead, the dismissal had occurred due to the elimination of the position of Plant Manager, in consequence of the reorganization of the company. Moreover, the above dismissal was unavoidable given that, as specified in the notice of dismissal, at the time of the facts at hand there were no vacant positions available for the manager.
The Court of Cassation also confirmed that, in the pre-trial phase, it had been proven that following dismissal no other director had been hired in his stead and that plant management had been taken over by the two figures hierarchically above the dismissed manager.
In consideration of all of the above, the Court of Cassation confirmed the following principle of the law “If the ground of dismissal of a manager has not been given (or it is insufficient or generic) the employer may – in observance of the principle of cross-examination pursuant to Article 19 (3) of the aforementioned National Collective Labour Agreement for Industrial Managers – make it explicit (or supplement it) within the context of arbitration proceedings; in addition, where the manager elects – in observance with the principle of alternation of available guarantees in labour disputes – to directly apply to an ordinary court of law – the same rights should be recognized to the employer in the course of the legal proceedings.” Otherwise, according to the Court of Cassation, the position of the employer would be compromised as an effect of an autonomous and unquestionable determination of the counterparty.
With judgment no. 4670 of 18 February 2019, the Court of Cassation maintained that the controls requested by the employers of an investigation agency are legitimate if the investigation concerns the control of behaviour that could be criminally relevant or fraudulent actions capable of damaging the employer.
The facts
A company active in the food industry had found out through a private investigation agency that on 22, 23 and 24 December 2014 and on 22 and 23 January 2015 and 5 February 2015, one of its own employees, instead of assisting a family member in relation to whom the worker had requested use of the leave allowed under Article 33 of Law no. 104/1992, had instead been busy with other personal activities (in places of business and other places, in any case not the one in which the assistance activities should have taken place).
The company had therefore started a disciplinary procedure against the employee, at the end of which it had served a notice of termination from employment for cause.
The worker had applied to the labour court for a declaration of unlawfulness of the dismissal in question and application of all the legal consequences resulting therefrom.
Even though the Court had excluded from the disciplinary measure the days of 22, 23 and 24 December given that the company had decided to suspend all work activities during the Christmas Holidays, it rejected the claim of the worker, declaring the dismissal legitimate.
The worker then filed a complaint before the Court of Appeal having jurisdiction pursuant to Law no. 92 of 2012, claiming also that the investigation agency was not licensed to carry out the investigations.
The Court of Appeal had upheld the judgment of the court of first instance and, in particular, had declared the dismissal legitimate, on the basis that the investigations aimed at the ascertainment of an improper use of the leaves pursuant to Law no. 104/1992 did not concern the performance of work activities. This is so because the investigations had been carried out during non-working hours and during suspension of the primary obligation to perform.
The court therefore ruled that the findings of the investigations and the first-hand testimony of the investigators were admissible, and that the argument of the agency not holding a license issued by the Prefecture had come too late.
In conclusion, the Court found that the worker had misused the right under Article 33 of Law no. 104/1992, betraying the confidence placed in the employee and constituting such a reproachable behaviour that the measure adopted was justified, even in the absence of other previous disciplinary measures.
The worker therefore filed an appeal before the Court of Cassation against the judgment of the Court of Appeal.
The ruling of the Court
The Court of Cassation upheld the decision of the Court of Appeal having jurisdiction and:
According to the Court of Cassation, the activities of the investigation agencies – in order to be lawful – should not extend to the work activities in the strictest sense. Indeed, under Article 3 of the Workers’ Statute, this is the direct responsibility of the employer and its collaborators. Therefore, the actions in question are justified not only because of the occurred wrongdoing and of the need to assess its nature, but also in the event of a mere suspicion or hypothesis that wrongdoings are being committed (see Court of Cassation no. 3590 of 14 February 2011; Court of Cassation no. 848 of 20 January 2015).
According to the Court, neither the principle of good faith nor the prohibition of remote controls referred to in Article 4 of the Workers’ Statute prevent the above, given that the employer can autonomously decide how and when to carry out the controls, including secretive controls, and given that the worker is obliged to act diligently while the employment contract is in force (see Court of Cassation no. 16196, 10 July 2009). This is so because the conduct of the worker:
Conclusions
In brief, it follows from the judgment at hand that the employer can legitimately hire an investigation agency to verify if during the periods of leave from work, on grounds of assistance to a family member, the worker performs other activities and, in the event of evidence in this sense, it can legitimately proceed to the dismissal of the worker.
Other News:
https://www.delucapartners.it/en/news/2017/employers-can-hire-a-private-investigator-to-make-sure-that-the-leaves-envisaged-in-law-no-10492-are-not-improperly-used/
Ascertainment of breaches of discipline by private detectives
With its order 25561 of 12 October 2018, the Court of Cassation handed down its ruling on the time limits by which the dismissal of an individual announced verbally can be challenged. In fact, the concept according to which this type of dismissal is not subject to the 60-day time limit but the limitation period of 5 years, was reiterated.
The Facts
This case originates from an appeal filed to the Court of Cassation against a ruling of the Court of Appeal having jurisdiction, which had admitted the first instance ruling declaring that a dismissal announced verbally was not effective.
In particular, the local Court had, among other things, found that the appellant’s complaint regarding the forfeiture of the worker’s right to challenge the dismissal lacked grounds, as it considered that Article 6 of Law 604/1966 was applicable, in light of the uncontested verbal nature of the dismissal in question.
The Court of Cassation reviewing the ruling rejected the appeal and ordered the appellant to pay the court fees.
Here we will discuss the second of the two reasons put forth by the Court of Cassation, i.e. the alleged violation and/or incorrect application of Article 6 of Law 604/1966, as subsequently amended, and therefore the supposedly unlawful rejection of the preliminary objection relating to time limits, due to the lack of legal action.
According to the appellant, the court in charge had overlooked the lack of legal action against the dismissal within the time limits set by the law and, in any case, the lack of a formally valid legal action prior to the establishment of a ruling declaring the unlawfulness of the dismissal.
The ruling of the Court of Cassation
The legislative data which the Court of Cassation initially applied was precisely the above-mentioned Article 6, par. 1, as amended by Article 32 of Law 183/2010, which reads: “the dismissal must be challenged within 60 days from receipt of its communication in writing or the communication of the reasons thereof, also in writing, under penalty of forfeiture, or where not simultaneous, by any written document, including an extra-judicial document which appropriately indicates the will of the worker (…)”. This legal action is considered to be ineffective if not followed by submission of an appeal to the Registry of the Court acting as Labour Court (Article 6, par. 2 of Law 604/1966), within 180 days.
In fact, with its order analysed herein, the Court of Cassation reiterated its own established principle (inter alia, Court of Cassation, Labour Section, Judgement no. 10547 of 20 May 2016; and Judgement 22825 of 9 November 2015), based on which the action aiming to render the verbal dismissal ineffective is not subject to the obligation to start an out-of-court action, due to the absence of a written document based on which the time limit for the appeal could be measured, pursuant to Article 6 above.
Therefore, in this case, as the verbal nature of the dismissal was not contested, the Court of Cassation ruled that the Court of Appeal correctly considered that the 60-day time limit under Article 6 of Law 604/1966 was not applicable, thereby making the dismissal subject only to the set limitation period.
Conclusions
Essentially, based on the ruling in question and the principle it was based upon, a worker who is dismissed verbally is not required to challenge the dismissal within 60 days (the time limit). A worker can therefore challenge it within the limitation period of five years from the time it is announced pursuant to Article 1442 of the Italian Civil Code.
With its recent judgement no. 21965 dated 10 September 2018, the Court of Cassation once again ruled on the well-known controversial issue of the boundaries between the right to criticize and insubordination, upholding the decision of the trial court. The judgement at hand found the dismissal imposed on an employee, who had uttered words deemed libellous by the employer, unlawful. More specifically, the employee – at the time of the events, a trade union representative – had been caught transmitting – via a Facebook chat – lines with a libellous, critical and offensive content regarding the director of his employing company, calling him slave-trader. The Court of Cassation, called to rule on the matter, established that in the case at hand the prerequisites for libel did not exist, because the worker had uttered those words on a private chat, the access to which was allowed only to the members of the trade union to which he belonged. On this point, the Court of Cassation clarified that the digital venue where this action had been committed must be considered a “private digital place of debate and sharing of opinions”: hence, a reserved and safe place which, as such, determines for those who are part of it a set of rights, including the right to privacy and freedom to exchange correspondence. In support of its stance, the Court of Cassation remarked that (i) Article 15 of the Workers’ Statute considers “freedom and the right to correspondence and any other form of communication” inviolable, as secrecy should be intended as the expression of the broadest freedom to communicate with predetermined subjects, and therefore as assumption that subjects other than the selected recipients do not illegitimately get to know the content of a communication and (ii) the protection of secrecy implies, in addition to the choice of the recipients and the sender’s intention to exclude other persons from knowing the message, also the use of a tool that embodies the quality of secrecy or confidentiality of the communication. Moreover, the Court, making reference to one of its previous rulings, reiterated that the right protected under Article 15 of the Italian Constitution “includes correspondence and the other forms of communication, including telephone, electronic, computer-aided communications between those present or those effected by other means provided by the ever-improving technologies.” Therefore, the need to protect the secrecy of communications also includes e-mail messages exchanged by mailing lists reserved to the members of a given group of people, newsgroups or private chat lines, whose access is conditional upon a password given to specific subjects. Lastly, the Court of Cassation specified that legitimizing dismissal for the reasons brought to its attention would be tantamount to legitimizing the control of the employer over the freedom to criticize, as well as, considering the circumstances, a violation of the trade union’s freedom, which in this way would be necessarily and inevitably demeaned. In consideration of all of the above, the Court of Cassation ordered reinstatement of the worker in his former job and payment of damage.
