Decree Law of 21 October 2021, no. 146 on “Urgent measures on financial and tax matters, to protect labour and for undeferrable needs” ( “Tax Labour Decree“), converted with amendments by Law 17 December 2021, no. 215, with the provisions contained in Article 13, has made some changes to Legislative Decree no. 81/2008 ( “Consolidated Law on health and safety in the workplace”). One of the main changes concerns the supervisor. Article 18 of Legislative Decree no. 81/2008 specifies that the employer and managers “must identify the supervisor(s) to carry out the supervisory tasks referred to in Article 19”, and “collective contracts and agreements may establish the supervisor remuneration for carrying out the tasks referred to in the previous sentence.” And in Article 19 of Legislative Decree no. 81/2008, the supervisor duties include “supervising and monitoring compliance by individual workers with their legal obligations and company regulations (…) and the use of collective protective measures and personal protective equipment made available”. If there is conduct that does not comply with the provisions and instructions given by the employer and managers, the supervisor shall,“ change the non-compliant conduct by providing the necessary safety instructions. If there is a failure to implement the instructions given or continuous non-compliance, work must be stopped and direct superiors informed“. If there are work deficiencies in the means and equipment or other dangerous conditions detected during supervision, the supervisor must temporarily interrupt the work and promptly inform the employer and manager of the non-conformities, “if needed.”
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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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The Court of Cassation, with its ordinance no. 10404 of 1 June 2020, in line with a consolidated orientation, expressed the principle based on which Inial’s recognition of an occupational injury or disease does not automatically lead to the employer’s liability for the damages suffered by the employee.
Facts of the case
An employer of a transport company sued in order to obtain compensation for personal injury caused by a pathology (afantrite) he had, contracted – according to him – due to the employer’s breach of the safety obligation established by art. 2087 of the Civil Code.
The territorially competent Appeal Court, in confirming the first instance ruling rejecting the presented appeal, underlined that the worker had omitted to provide proof of the alleged breach while the defendant company had proven “to have complied in time with all of the legal requirements related to occupational safety”.
The worker appealed to the Court of Cassation relying on two motives that the company challenged with a counterclaim.
The Supreme Court of Cassation’s decision
In formulating its decision, the Court of Cassation first noted that (i) the entrepreneur’s liability for failure to adopt suitable measures to protect the physical integrity of the employee is based on specific laws, and if they are not available, on the general provisions as per art. 2087 of the Civil Code. These provisions constitute the final regulations of the accident prevention system that can be extended to situations and cases not yet expressly considered and assessed by the law at the time it was created.
However, according to the Cassation judges, this does not amount to liability every time an occupational disease is diagnosed in a worker. In the presence of such circumstances, the worker has the onus of proving the fact that constitutes the employer’s breach and the material causal nexus between the breach and injury.
In the case in hand, according to the Court of Cassation, the worker did not provide proof of the employer’s alleged breach and, actually, his employer company demonstrated to have complied with all of the legal obligations regarding safety.
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The Court of Cassation’s decision in question is in line with the recent circulars 13 and 22 issued by INAIL on 3 April 2020 and 20 May respectively related to equating Covid-19 contagion with cases of occupational injuries.
But there is more. The decision is also consistent with the regulations as per art. 29 bis by Law no. 40 of 5 June 2020 converting the Liquidity Decree, concerning employer obligations for protection against contagion from Covid-19.
The article states that, in order to protect against the risk of Covid-19 contagion, employers shall comply with the obligation as per art. 2087 of the Civil Code through (i) application of the provisions contained in the joint protocol which regulates measures to combat and contain the spread of Covid-19 in the workplace, signed on 24 April 2020 by the Government and social partners as subsequently amended and supplemented, and in other protocols and guidelines referred to in art. 1, paragraph 14, of Decree Law no. 33 of 16 May 2020, and also by (ii) adopting and maintaining in force the measures provided for therein.
If the aforementioned provisions do not apply, according to the above legislation, the relevant measures will be those contained in the sector protocols or agreements entered into by the trade unions and employers’ organisations that are comparatively more representative at national level.
Other related insights:
Vittorio De Luca, with Antonella Iacobellis and Alessandra Zilla, signed the firm’s contribution on health and safety at work and redundancy fund in derogation for multi-located companies.
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