By Order no. 1476 of 15 January 2024, the Italian Court of Cassation has once again ruled on the seriousness of the facts alleged against an employee as the reason underlying the dismissal for just cause under Article 2119 of the Italian Civil Code.

At the end of the three instances of proceedings, the Italian Court of Cassation rejected the appeal brought by the employee, confirming the previous rulings.

The facts of the case

The case originates from an employer’s dismissal of an employee hired as a cook for having unlawfully and repeatedly stolen foodstuffs owned by the employer. In the context of the disciplinary proceedings, the worker had requested the postponement of the meeting scheduled for the hearing for health reasons. Specifically, the worker had produced medical certificates attesting that he was suffering from reactive stress anxiety.

The employee challenged the dismissal before the Court of Santa Maria Capua Vetere which rejected the application brought by the worker under Italian Law no. 92/2012 (so-called ‘Fornero Law’).

The Court of Appeal of Naples, at second instance, noted: (i) that there had been no breach of the right of defence as the medical certificate produced did not evidence a legitimate impediment to the hearing going ahead and, therefore, the request for postponement was merely to delay matters; (ii) that the investigative material acquired in the proceedings had confirmed the accusation made in the disciplinary proceedings, i.e. the repeated and unauthorised misappropriation of cooked food, as well as the worker’s failure to comply with the obligations of trust, loyalty and fairness; (iii) that dismissal was a proportional sanction due to the unlawfulness of the actions and the conduct carried out (which was also a criminal offence).

On these bases, the Court of Appeal judges rejected the worker’s claims.

The Italian Court of Cassation’s decision

The worker appealed to the Italian Court of Cassation on the basis of breach of the provisions of Article 7 of Italian Law no. 300/1970 for disciplinary procedures (so-called ‘Workers’ Charter’) and also alleged errors in the assessment of the evidence concerning the seriousness of the conduct and the lack of proportionality of the sanction.

The Court, in this appeal, reiterated that in cases of disciplinary dismissal, the worker has the right, if he or she so requests, to be heard by the employer, which may be postponed where there are proven and valid reasons that could jeopardise the effective and correct exercise of the same.

In the present case, in the opinion of the Italian Court of Cassation, the conduct complained of (theft of food), although not so serious as to cause significant financial damage and prejudice, constituted a justified reason for dismissal because of its disregard for social values and “conflicted with the standards and values of the legal system existing in the social context […]  although there may have been apparent tolerance on the part of the employer”.

The Italian Court of Cassation, following the assessments carried out on the seriousness of the conduct, then concluded that the modest financial value of the offence “should not refer to the minor nature of the financial damage suffered by the employer, since it is necessary to evaluate the employee’s conduct in terms of the indications it gives with respect to his future conduct, as well as its capacity to cast doubt on the integrity of future performance and to affect the essential element of trust, underlying the employment relationship” (Italian Court of Cassation no. 11806/1997; Italian Court of Cassation no. 19684/2014).

Who has the power to dismiss the employee in the case of an outsourcing contract? The issue, which at first glance may appear technical, has widespread application in Italy, where the use of outsourcing (or sub-contracting) is frequent. In particular, companies have to keep on top of both developments in the regulations as well as case law, to ensure that that they act lawfully, considering social policies have changed significantly over the years. “For an outsourcing contract to be considered genuine it will need to comply with the requirements on  personnel organisation and management, the coordination of resources and the assumption of business risk by the contractor”, explains Vittorio De Luca, partner of the law firm De Luca & Partners. “Although the relevant legislation has remained substantially unchanged for 20 years, the case-law, due to the particular sensitivity of the matter, has developed in a way that has, generally, lead to more negative consequences for the principal”. Finally, there is also new case-law regarding the sham outsourcing contract, which emerges when the principal imposes external management, governing the ‘outsourced’ workforce of the contractor by interfering directly in how the activities are carried out. In this case, the courts may consider the dismissal of the employee to be ineffective if it is not carried out by the principal in its capacity as de facto employer.

Continue reading the full version published in La Repubblica.

With judgment no. 2859 of 31 January 2024, the Italian Supreme Court dealt with the issue of disciplinary dismissal and its consequences in the event of a violation of the procedures established by law. In the case in question, the company, in applying the dismissal measure against the employee, had not respected the procedure envisaged by Article 53 of Royal Decree no. 148/1931, failing to convene the worker prior to dismissal to allow him to submit justifications in his defence. The Court of Appeal of Palermo, hearing the matter, had attributed the defect to the scope of paragraph 6 of Art. 18, ordering only the payment of compensation. The Supreme Court, on the other hand, established that the violation of this rule entails the invalidity of the disciplinary measure, with such invalidity deriving from the violation of a rule imposed to protect an interest worthy of protection, such as that of the worker’s defence. Therefore, in the Court’s opinion, the worker is entitled to the real protection envisaged by Article 18, paragraphs 1 and 2 of Italian Law no. 300 of 1970, namely the right to reinstatement in the job and to payment of remuneration in arrears and payment of social security contributions since the date of dismissal.

With its order of 4 January 2024, the Court of Ravenna referred to the European Court of Justice the judgment of the Italian legislation on the calculation of absences from work caused by disabling diseases in the protected period (periodo di comporto).

The question posed to the European Court of Justice can be summarised as follows: can the 180-day protected period provided for by the Confcommercio National Collective Bargaining Agreement (Contratto Collettivo Nazionale di Lavoro, ‘CCNL’) (which applies without distinction to both disabled and non-disabled persons) be regarded as a reasonable accommodation that is sufficient for avoiding indirect discrimination against disabled workers?

The order is based on Directive 2000/78/EC, relating to equal treatment in employment and occupation of disabled workers, implemented in Italy by Italian Legislative Decree no. 216/2013.

On the basis of this Directive, a line of case-law has developed at Community level and, subsequently, at national level, which has held that the indiscriminate application of the same period of protection to disabled workers and non-disabled workers amounts to indirect discrimination. This is because it results in unequal treatment to the disadvantage of the disabled person who, due to the vulnerability inherent in the disability,  is placed at a particular disadvantage compared to other workers, given the risk of greater possibility of accumulating days of absence and thus more easily reaching the limits of the protected period.

According to this line of case-law, the dismissal of a disabled person who, because of that disability, exceeds the protected period, must be declared null and void, as it is discriminatory.

The referring judge, after citing the European Court of Justice case on which the national case law in the lower courts and the Court of Cassation is based, raised doubts on the need to prescribe a specific duration of the protected period for disabled people, considering that the Italian legislation on illness already provides significant protection to the disabled person. The judge also expressed doubts about the applicability of mechanisms such as the employer’s deduction of periods of absence due to disability from the protected period.

Among the reasons preventing the introduction of differentiated protection, the Court of Ravenna noted that it would be impossible for the employer to distinguish absences caused by common illness from those due to disabling diseases, given that privacy regulations do not oblige the disabled person to disclose his or her state of health.

For the reasons summarised above, the referring court therefore asked the European Court of Justice to rule on the following questions:

(1) Does Directive 2000/78/EC preclude national legislation which does not provide for different rules between workers who can be classified as disabled and workers who cannot?

(2) If the national legislation were to be regarded in the abstract as constituting indirect discrimination, is the legislation itself nevertheless objectively justified by a legitimate aim and are the means of achieving that aim appropriate and necessary?

(3) Can the provision of unpaid leave, at the worker’s request, amount to suitable and sufficient reasonable accommodation for avoiding discrimination?

(4) Can an accommodation consisting of the employer’s duty to grant a further period fully paid by it, without obtaining consideration for work, be regarded as reasonable?

(5) For the purposes of assessing the discriminatory conduct of the employer, can (for the purposes of establishing the lawfulness or otherwise of the dismissal) the fact that even a possible further period of stability in the relationship paid for by the employer would not have enabled the disabled person to return to work, given his or her continuing illness, be taken into account?

Other related insights:

“With the imminent conversion into law of the Italian Milleproroghe Decree, the extension of the deadline for entering into a fixed-term contract beyond 12 months, by agreement between the parties, is on its way. The extension granted by the decree will be from 30 April to 31 December 2024 and it will temporarily extend the period in which companies can extend fixed-term contracts up to a total of 24 months, if there are explicit technical, organisational or production needs”, Vittorio De Luca, lawyer and managing partner at De Luca & Partners, explains to Adnkronos/Labitalia.

“The purpose of the provision – explains Mr De Luca who is an expert in this field – is to give the stakeholders more time to adapt the collective bargaining agreements very few of which, for the time being, have introduced provisions on the reasons justifying fixed-term contracts, leaving many production sectors uncovered. In fact, as is well known, the latest amendment to the regulations governing fixed-term contracts was introduced by the Italian Employment Decree (Decree-Law no. 28/2023), which, by reformulating Article 19 of Italian Legislative Decree no. 81/2015, established an innovative regime in the event of continuation of the fixed-term contract beyond the term of 12 months”, he explains.

“The current version of the provision states that, after the first 12 months – for which no reason is required – the fixed-term relationship can continue (up to 24 months) only for the replacement of workers and in the cases provided for by collective bargaining. In the absence of provisions in collective bargaining agreements, on a temporary basis until 30 April 2024 (now extended to 31 December) technical, organisational or production reasons identified by the parties will also be sufficient”, concludes Mr. De Luca.

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