Conciliation agreements negotiated with the help of a union cannot be validly concluded at the company’s headquarters. This is because company headquarters do not fall within “protected locations” (sedi protette) which are neutral and guarantee, together with the assistance provided by the union representative, that the worker is free to make his or her own decisions.
The Italian Court of Cassation affirmed this principle in order no. 10065 of 15 April 2024. This is a more restrictive interpretation than that laid down in order no. 1975 of 18 January 2024. According to the Court the locations selected by the legislator are exhaustive and do not permit substitutes, both because they are directly linked to the body responsible for conciliation and because of the aim of guaranteeing the worker a neutral environment, without employer influence.
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By order no. 10734 of 22 April 2024, the Italian Court of Cassation ruled that, in the event of a failed conciliation attempt, as required under Article 7 of Italian Law no. 604/1966 in the case of dismissal for justified objective reasons of workers hired before March 2015, the employer is not required to send the employee notice of dismissal, as the indication of the intention to interrupt the relationship contained in the minutes drawn up before the Local Employment Inspectorate (Ispettorato Territoriale del Lavoro, ‘ITL’) is sufficient.
As a result of the conciliation attempt held before the ITL under Article 7 of Italian Law no. 604/1966, the minutes of failure to conciliate were drawn up, in which the employer’s intention to proceed with the dismissal of the employee for justified objective reasons was formally stated.
Subsequently, the worker challenged her dismissal, objecting, in the first place, that it was ineffective because it was not in writing.
As part of the so-called ‘summary phase’ of the Fornero Proceedings, as well as in the subsequent opposition phase, the Judge found that the dismissal had not been in writing, with a consequent order against the employer to reinstate the employee.
The employer appealed to the Italian Court of Appeal which overturned the judgment handed down in the context of the opposition phase.
The Italian Court of Appeal ruled, on the one hand, that there had been written notice of dismissal because the intention to terminate the employment relationship was contained in the minutes signed by both parties at the end of the procedure under Article 7 of Italian Law no. 604/1966. However, the Court also held, on the other hand, that as the principle of fairness and good faith had been breached with respect to the choice of the worker to be dismissed, the dismissal was unlawful and made an order against the employer under the provisions of Article 18, paragraph 7, of the Italian Workers’ Charter.
The employee appealed against the judgment before the Italian Court of Cassation and the company, as well as submitting a defence lodged, in turn, a cross-appeal.
The Italian Court of Cassation – in upholding the second instance judgment – noted, first of all, that the purpose of a written notice of dismissal lies in the need to make the employee aware of the action interrupting the relationship.
This function – the Court continued – is fulfilled if the intention to proceed with the termination is formally stated by the employer, in an institutional setting (such as the ITL where the conciliation attempt under Article 7 of Italian Law no. 604/1966 is held), in minutes that are also signed by the employee.
The legislative wording of Article 7, paragraph 6, third sentence of Italian Law no. 604/1966 (“If the conciliation attempt fails and, in any case, the deadline referred to in paragraph 3 has elapsed, the employer may give notice of the dismissal to the worker”) outlines a legal condition (precedent) and a term (dilatory). For this reason, once the first has been fulfilled or the second has expired, the employer “may give the employee notice of the dismissal”.
With regard to the meaning to be attributed to the legal condition precedent (i.e., the failure of the conciliation attempt), according to the Italian Court of Cassation “the literal reading” suggests that the legislator “has given importance to the objective failure of the conciliation attempt rather than to the chronological and formal date of the finalisation of the minutes drawn up in the local conciliation commission”.
Moreover, the Court continues, “the wording of the provision does not require that the notice of dismissal which may be given by employer ‘if the conciliation attempt fails’, must take place in a different context and subsequent to that of the aforementioned minutes”.
In this sense, the Court argues, “nothing to protect the interests of the worker could plausibly justify the assumption that the notice of dismissal to the worker must necessarily take place in a context distinct from the minutes drawn up at the meeting before the appropriate commission, provided of course that the notice of dismissal already stated in that forum complies with the additional provisions on dismissal, starting with that of the [notice being] in writing under Article 2, paragraph 1 of Italian Law no. 604/1966”.
According to the Italian Court of Cassation judges, it follows that, where the conciliation attempt under Article 7 of Italian Law no. 604/1966 fails and the employer confirms his or her intention to terminate the relationship, there is no need to subsequently send the employee a letter of dismissal.
On these grounds, the Italian Court of Cassation therefore rejected the appeal brought by the worker, confirming that she was only entitled to compensation and not reinstatement.
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An employee dismissed for drug trafficking has been reinstated and compensated. The drug related conviction occurred in the past and pre-dated the employment, when the company took over the staff from the outgoing company after taking over a contract held under a public administration tender. The Italian Court of Cassation, employment division, by order no. 8899 of 4 April 2024 held that the material fact existed but that this did not give rise to a legal ground: an old conviction has no disciplinary relevance where the employer does not prove “the relevance of the old facts on the relationship’s operation”. A criminal judgment that becomes final during the relationship, onthe other hand, may trigger the employer’s withdrawal for just cause if the relationship of mutual trust with the company fails.
Continue reading the full version published on (Italia Oggi, page 14).
In its recent Order no. 6782 of 14 March 2024, the Italian Court of Cassation affirmed the following principle of law: “in the case of a permanent employment relationship, the employer’s waiver of the notice period, in the face of the worker’s resignation, does not give rise to the latter’s right to obtain compensation in lieu of notice because of the mandatory nature of notice”.
An employee resigned and her employer agreed to exempt her from working during her notice period, without paying her the relevant compensation in lieu of notice.
The resigning worker applied to the court for payment of the compensation in lieu of notice.
The Court of Pisa upheld the worker’s application and, on appeal, the ruling was also confirmed by the Florence Court of Appeal.
Both lower courts based their reasoning on the assumption that the employer, despite having exempted the appellant from working during her notice period, was nevertheless obliged to pay the equivalent of the amount of the salary that would have been due to the applicant for the notice period.
The company appealed against the decision of the Court of Appeal to the Italian Court of Cassation.
The Italian Court of Cassation judges, reversing the first instance ruling, held that in the context of a permanent employment relationship, the employer’s waiver of the notice period in the face of the employee’s resignation “does not give rise to the latter’s right to obtain compensation in lieu of notice because of the mandatory nature of notice”.
The judges therefore emphasised that notice is mandatory and, therefore, if one of the parties exercises the right to withdraw with immediate effect, the relationship also terminates immediately, and the only obligation that arises is that of the withdrawing party to pay the compensation in lieu of notice.
According to the Italian Court of Cassation judges, however, the other party can waive the notice without paying anything to the other party, who cannot claim any right to the continuation of the employment relationship until the notice ends.
On this basis, the Italian Court of Cassation upheld the appeal brought by the company, ruling that the resigning worker was not entitled to compensation in lieu of notice.
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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?
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