The Italian Court of Cassation, in judgment No 31150 of 21 October 2022, in line with its own precedents, clarified that the prior display of the disciplinary code is not necessary for the validity of the disciplinary dismissal of an employee for performing personal activities during working hours, leaving his workstation without permission and using company equipment for which he had not been trained in advance. This is because the conduct alleged breaches legal provisions and, in any event, the worker’s fundamental duties, recognisable as such without the need for specific provision.
Before examining the judgment under review in detail, it is useful to briefly analyse the regulatory provisions applicable to the case as well as the relevant jurisprudential landscape.
Display of the disciplinary code: regulations and case law
As is well known, Article 7 of the Workers’ Statute (Italian Law 300/1970) is the key provision setting out substantive and procedural guarantees to protect the worker in the context of the employer’s exercise of disciplinary power.
The provision places the onus on the employer to prepare a disciplinary code containing the different types of offences, the relevant penalties, and the procedures for challenging them, taking into account national collective bargaining agreements and contracts, if any exist and are applied.
As expressly stipulated in the above statutory provision, the disciplinary code must be displayed in a place accessible to all employees. If the business is divided into several production units, the code must be displayed at each location, facility and autonomous department. Similarly, the code must be displayed if the business operates at third parties’ premises, using them to accommodate materials or persons.
On this point, case law has made it clear that any place in the company where access is available freely and conveniently and for which no special permits or authorisations are required (e.g., personnel management premises or with access limited by badges, etc.) is suitable (Italian Court of Cassation, 3 October 2007, No 20733).
With reference to other equivalent means of disseminating disciplinary regulations, majority case law has held that this is not admissible nor valid, specifying that the employer’s duty to publicise cannot be fulfilled by means other than displaying the code through, for example, distributing the collective agreement and/or company regulations containing the disciplinary code to all employees (Italian Court of Cassation, 28 February 2005, No 5005).
The reasons underlying the above principle were set out clearly by the Joint Divisions of the Italian Court of Cassation in judgment No 1208/1988, according to which: ‘If it is true that the company disciplinary code is a unilateral document with a regulatory function,…and if the addressee of the code is the same indeterminate – also because it is constantly changing – group of workers, it follows that in so far as it has been made known or knowable to the group for which it is intended, it will be effective; without this ability to know about the disciplinary code it is ineffective as legally non-existent. It follows that the legislature’s option choosing displaying, as opposed to other possible dissemination methods of an individual nature (such as, for example, delivering the entire contractual text or an excerpt containing only the provisions on disciplinary matters to employees), is not arbitrary, nor merely advisory, but prescriptive and exclusive, since it finds its rationale in the nature and function to which the document refers.’
The prior and continuous display of the disciplinary code in a place accessible to all workers is, subject to what follows, a necessary condition for lawfully initiating disciplinary proceedings. Hence, it follows that displaying the code after the act complained of renders the sanction unlawful, regardless of whether the employee nevertheless had knowledge of the prohibited conduct (Italian Court of Cassation, 3 May 1997, No 3845; Italian Court of Cassation, 18 May 1989, No 2366; Court of Torre Annunziata, 27 July 2004).
The necessary guaranteed publicity for the disciplinary code by displaying it in a place accessible to all employees does not apply where the dismissal refers to situations which are in breach of fundamental duties related to the employment relationship (Italian Court of Cassation, 1 September 2015, No 17366; Italian Court of Cassation, 26 March 2014, No 7105; Italian Court of Cassation, 7 February 2011, No 2970), or to conduct contrary to the so-called ‘ethical minimum’, since in that case the conduct complained of is immediately apparent to the employee as unlawful (Italian Court of Cassation, 9 July 2021, No 19588).
After all, the Italian Court of Cassation, following a prevailing line of jurisprudence, has held since the mid-1990s that ‘the principle of the peremptory nature of the employee’s offences cannot be understood in the strict sense imposed in criminal law by Article 25, paragraph 2 of the Italian Constitution, a distinction having to be made between unlawful conduct pertaining to company organisation and modes of production, which refer to rules that are for the most part unknown to the general public and are, therefore, knowable only if expressly provided for, and those that are manifestly contrary to generally accepted values, and therefore also unlawful under criminal law, or manifestly contrary to the company’s interests, for which specific inclusion in the disciplinary code is not necessary, since they are in themselves capable of manifesting the “culpa lata”, corresponding to “non intelligere quod omnes intellegunt”’ (Italian Court of Cassation, 26 February 1994, No 1974).
The full version can be accessed at Modulo24 Contenzioso Lavoro of Il Sole 24 Ore.
In the event of repeated absences – which have not exceeded the limit of the protected period – the onus is on the employer to prove the additional reasons justifying the dismissal.
Dismissal based on an employee’s repeated absences from the workplace on days close to rest days and/or public holidays constitutes an unfair and arbitrary reaction by the employer to the legitimate exercise of the employee’s right to be absent due to illness and, therefore, must be considered discriminatory and retaliatory if the protected period established by the collective agreement has not been exceeded.
This was the conclusion reached by the Court of Naples in its judgment of 14 September 2022 on the basis that the employer may not terminate the relationship before the tolerable absence limit (the so-called ‘protected period’) has been exceeded.
The case before the Court related to the dismissal for just cause of an employee who was repeatedly absent for short periods usually close to rest days, public holidays or holidays. In the company’s opinion, the absences had made his work performance objectively unusable and discontinuous and caused serious and onerous disruption to business organisation.
The Court held that the dismissal was unlawful, referring, first of all, to the legal provision governing the sickness, i.e., Article 2110 of the Italian Civil Code. That legislative provision, in essence, establishes a balance between the employee’s interest in keeping his/her job for a determined period of time and the employer’s interest in not having to bear for an indefinite period of time ‘the repercussions that such absences have on business organisation’. In fact, exceeding the protected period, usually defined by collective agreement, would have the effect of jeopardising the employer’s right to receive consistent and regular services from the worker and, therefore, to satisfy fully the organisational purposes of the business.
The full version can be accessed at Norme e Tributi Plus Lavoro of Il Sole 24 Ore.
The Court of Rome differs from the Capitoline Court of Appeal guidelines over the exclusion of the dismissal prohibition for managers during the Covid emergency.
Measures to combat Covid 19 – Decree Law no. 18/2020 and Decree Law no. 104/2020 – Dismissal prohibition for objective justified reason – Manager – Dismissal for position redundancy – Prohibition breach – Not applicable
The emergency legislation on prohibiting dismissal for objective justified reasons is exceptional and cannot be applied to similar cases not expressly mentioned by the regulation. This means that the dismissal prohibition cannot be applied to an individual manager’s dismissal.
Court of Rome 25 October 2022, no. 8722
A few months after the Rome Court of Appeal ruled in favour of the applicability of the dismissal prohibition to managers, the Capitoline Court, in its recent ruling no. 8722 published on 25 October 2022, came to an opposite conclusion.
FACTS OF THE CASE
In August 2020 – the period covered by the general dismissal prohibition for objective justified reasons under Decree Law 14/8/2020, no. 104 – an employer company dismissed a manager for objective financial reasons.
Considering that managers were included in the group of workers protected by the dismissal prohibition under the emergency regulations, and as part of the first phase of the Fornero Procedure, the Judge declared the dismissal null and void, ordered the manager immediate reinstatement, and the company to pay the remuneration due from the dismissal date until reinstatement.
The company appealed against this decision before the Court of First Instance.
LEGISLATION AND CASE-LAW
Art. 46 Decree Law 17 March 2020, no. 18 prohibited collective dismissal procedures and employers from “terminating the contract for objective justified reasons under Art. 3 of Law no. 604 of 15 July 1966” regardless of the number of employees.
The dismissal prohibition applicable to this case was extended and subjected to further conditions and exceptions, by Decree Law 14/8/2020, no. 104.
The provision stated that, to cope with the COVID-19 emergency, private employers who partly benefited from the wage subsidies or the exemption from the payment of social security contributions could not terminate employment contracts for objective justified reasons under Art. 3 of Law 15/7/1966, no. 604 of 15/7/1966, regardless of the number of employees. The ongoing procedures at the Local Labour Inspectorate referred to in Art. 7 of the same law, were suspended.
The prohibitions and suspensions listed above did not apply in the following cases:
a) redundancies due to the definitive cessation of the company business, resulting from the company liquidation without any business continuation;
b) collective bargaining agreement, stipulated by the trade unions that are comparatively more representative at the national level, as an incentive to terminate the relationship;
c) redundancies due to bankruptcy when there was no company provisional operation or business termination.
Since the introduction of the dismissal prohibition, two opposing approaches have alternated in legal theory and case law on the applicability of this emergency legislation to individual dismissals of managers.
Continue reading the full version published on Guida al lavoro of Il Sole 24 Ore.
In its order no. 25287 of 24 August 2022, the Court of Cassation ruled on monitoring carried out by the employer and confirmed the legal principles within which the employer may use a detective agency.
This case involved a worker dismissed because he was accused of leaving the workplace repeatedly during working hours, for activities unrelated to his job (the contract allowed a certain workplace and time flexibility). This came to light as part of a broader investigation concerning the violation of leave under Art. 33 of Law no. 104/92 by a colleague which involved the appellant who had been reprimanded several times.
While the investigation on the other employee was lawful, the surveillance carried out on the employee in question was outside the detective agency remit.
According to the Supreme Court, the external monitoring must be limited to the employee illicit acts that are not attributable exclusively to the breach of an employment contractual obligation. In other words, to operate legally, detective agencies must not monitor work performance. Under the law, work performance monitoring must be carried out directly by the employer and its employees using audio-visual equipment and other monitoring tools.
Please note that internal work performance monitoring must follow legal limits.
The key provision is Art. 4 of the Workers’ Statute (Law 300/1970). Under this provision, information collected through monitoring can be used for employment relationship purposes, including disciplinary. However, certain criteria and “guarantee procedures” must be followed for them to be lawful.
Adequate information must be provided to the worker on the methods used to carry out monitoring. If audio-visual equipment or other monitoring tools are used, information must be provided on tools use and monitoring methods.
Under the last paragraph of Article 4, for the collected information to be usable for employment relationship purposes, personal data protection legislation, i.e., Regulation (EU) 2016/679 and Legislative Decree 101/2018, must be followed.
This allows the company, employer and data controller under the data protection legislation, to use the information collected and avoid incurring a heavy GDPR penalty for unlawful personal data processing.
Other related insights:
A disputed written dismissal notice cannot be proved by witnesses, according to the Court of Cassation ruling no. 26532/2022. The dismissal is null and void for a lack of the required legal format
In its order no. 26532 of 8 September 2022, the Court of Cassation stated that the power attributed to the Employment Tribunal to admit ex officio any means of proof, including those outside the limits established by the Italian Civil Code, cannot apply to the written format required ad substantiam for the dismissal letter. Witness evidence of a contract or unilateral deed that is legally required to be in writing under penalty of nullity is not permitted. There is only one exception under Art. 2724 no. 3 of the Italian Civil Code, which is when the document has been lost unintentionally. According to the trial Court, based on a public order rule, a witness is inadmissible including ex officio at any proceedings stage and level.
Before analysing the ruling and its place in relevant case law, we will mention the legal provisions applicable to the case examined.
As an exception to the general principle of format freedom, the legal system requires several formal, procedural and substantial employer obligations. Dismissal must be notified in writing and the notice must specify the grounds. This is required by Art. 2 of Law no. 604/1966, as amended in 1990, and by the Fornero Law. The legislation does not require customary formats, if the will is clear and unambiguous.
The dismissal is required to be in writing ad substantiam and, since it is a unilateral reception act, must be received by the employee to be effective (Art. 1334 of the Italian Civil Code). This is based on the presumed knowledge at the time of delivery to the recipient’s address, unless there is proof of a blameless impossibility of knowledge (Art. 1335 of the Italian Civil Code).
The dismissal notice may be hand delivered in the workplace and treated as such even if the employee refuses its reception. According to the Court of Cassation, “The recipient’s refusal of the dismissal notice in the workplace does not preclude the communication from being considered as delivered, since it is a unilateral reception act which is under the general principle that the recipient’s refusal cannot be to the detriment of the obligor and the presumption of knowledge rule under Art. 1335 of the Italian Civil Code” (Court of Cassation, ruling no. 21017/2012).
Under Art. 2725 of the Italian Civil Code, called “Deeds for which proof in writing or written format is required”, under the law or the parties’ will, a contract must be proved in writing, evidence by witnesses is admitted only in the case under no. 3 of Art. 2724 of the Italian Civil Code.
The same rule applies in cases where the written format is required under penalty of nullity.
Under Art. 2724 no. 3, of the Italian Civil Code, evidence by witnesses is admissible “when the contracting party unintentionally lost the document that provided proof.”
Art. 421 paragraph 2, first part, by which the Employment Tribunal “may order ex officio the admission of any means of proof, even outside the limits established by the Italian Civil Code.”
The Court of Appeal of Florence dismissed the complaint brought by the employer company against the Court of Florence’s ruling. The latter declared the ineffectiveness of an oral dismissal of an employee on 8 September 2017, ordered the worker’s reinstatement and the employer to pay compensation for damages amounting to her last full salary, less earnings from other sources, plus social security and welfare contributions, and any additional sums;
The local Court upheld the Court of First Instance’s ruling, which upheld the order at the summary proceedings, on the grounds that the company did not prove it had complied with the written format required ad substantiam, and that the evidence by witness acquired during the first instance proceedings was inadmissible.
The Court of second instance stated that the issue disputed was not that the employee, classified as a manager, was dismissed at a meeting held on company premises on 8 September 2017, in the presence of the CEO and two employees, but the written format of the employer’s termination and the notification method.
Applying the principles expressed in the Supreme Court’s ruling no. 11479/2015, a precedent was considered significant given the similarity of some of the facts (oral dismissal challenged by the employee, while the employer claimed the dismissal notice was hand delivered, which must be proven by witnesses). the Court of Appeal noted that if the dispute refers to the dismissal letter reception by the employee at the time of dismissal, that notification method cannot be the subject of oral evidence because the testimony would contain oral evidence of a document for which the written format is required ad substantiam. Furthermore, the oral evidence prohibition under Art. 2725 of the Italian Civil Code on documents which are legally required in written format under penalty of nullity, cannot be rebutted by exercising the Employment Tribunal’s investigative powers.
Continue reading the full version published on Modulo24 Contenzioso Lavoro (Form24 Labour Litigation of Il Sole 24 ore.
