In its ruling no. 183 filed on 22 July 2022, the Constitutional Court called on Parliament to amend Art. 9 of Italian Legislative Decree 23/2015 which covered the system of protection for cases of unlawful dismissal in companies with less than 15 employees.
The Rome Court of First Instance, acting as employment tribunal, by order of 26 February 2021, raised issues of constitutional legitimacy concerning Art. 9, paragraph 1, of Legislative Decree no. 23/2015 which covered the system of protection for cases of unlawful dismissal in companies with less than 15 employees. The provision was censured only in the part where it states “where the employer does not reach the size requirements set out in Article 18, paragraphs 8 and 9, of Law no. 300 of 1970, … the allowances and the amount under Article 3, paragraph 1, … is halved and cannot exceed the limit of six months’ salary.”
The Court ruling on an appeal brought by a worker dismissed for objective justified reason by an employer that did not reach the threshold of 15 employees, claimed that the existence of the justified reason had not been demonstrated. The Court found that the worker’s indemnity is to be identified “in the narrow range between the minimum of three and the maximum of six months’ pay.” This would be unsuitable “to meet the adequacy requirement and guarantee the recognition of a bespoke compensation.”
The Court argued that the provision was contrary to Articles 3, paragraph 1), 4, 35, paragraph 1) and 117, paragraph 1) of the Constitution, the latter in relation to Art. 24 of the European Social Charter. In its opinion, the distinction between protections based on the employer’s employment requirements is based “on an element that is external to the employment relationship.” Protecting the right to work, which would limit the employer’s power of termination, could be entrusted to a monetary mechanism, provided that the overall adequacy of the compensation, under the Article 24 of the European Social Charter.
The Court believed that “such a small compensation“, not exceeding six months’ salary and without “the alternative of re-hiring“, did not adequately balance any conflicting interests. Art. 24 of the European Social Charter requires fair compensation or appropriate redress in cases of dismissal without a valid reason. This effectively prohibits any predetermined maximum limit, which separates the compensation from the damage suffered and is not sufficiently dissuasive.
The Court of First Instance observed that the “compensatory function” and the “deterrent effectiveness of compensation protection” would be compromised (…) by an indemnity “falling within a range of between three- and six-months’ salary”, which would represent “an almost uniform form of protection” and would end up attributing sole importance to “the number of employees.” This would be a “negligible criterion in the current economic situation”, which would not allow any adjustment of the amount to the specific case and, particularly, the “breach seriousness”, to the more significant criterion of the company size, linked to the “financial data obtainable from financial statements.”
The Constitutional Court stated that the referral by the Court of Rome concerning the compensation under Art. 9 of Italian Legislative Decree 23/2015 was inadmissible for unlawful objective justified reason dismissals in companies with less than 15 employees.
However, it recognised that the framework outlined in Law no. 23/2015 profoundly changed from that analysed by its most recent rulings.
In the Constitutional Court’s opinion, reinstatement was limited within peremptory cases for employers, and the company size was not a distinguishing criterion between applying the more effective protection and granting a pecuniary compensation.
In the Constitutional Court’s opinion, when a system hinges on financial protection, the situation of small companies cannot justify a disproportionate sacrifice of the worker’s right to obtain adequate compensation for the prejudice suffered. The narrow gap between a minimum of three and a maximum of six months’ salary “defeats the need to adjust the amount to each case, to provide adequate compensation and effective deterrence, which considers the relevant criteria set out in the rulings of this Court and contributes to configure the dismissal as a last resort.”
The Constitutional Court pointed out that technological evolution and production process transformations meant that a small number of employees could be matched by significant capital investments and business volume. The criterion focusing only on the number of employees does not meet the requirement of not burdening with disproportionate costs production and organisational realities which are unable to sustain them. The Court stated that the uniform and closed limit of six months’ salary refers to various activities with the number of workers employed as a shared element, which has no significant value per se.
In conclusion, the Court acknowledged “the existence of the damage reported by the referring party (alias the Court of Rome).” It emphasised “the need for the legal system to provide appropriate remedies for unlawful dismissals by employers who have the number of employees as a shared element.”
However, this damage cannot be remedied by the Court, since it is “within the legislature’s overriding discretion to choose the most appropriate means to achieve a constitutionally necessary end, as part of “legislation of essential importance” (…), because of its connection with worker rights, a choice which projects its effects on the economic system.”
In concluding, the Court declared that it could not refrain “from pointing out that a further continuation of legislative inertia would not be tolerable and would induce the Court, if it were again called upon to do so, to provide directly, despite the difficulties described here (…).”
This is a clear invitation to the legislature to revise Art. 9 of Italian Legislative Decree 23/2015, failing which the Constitutional court will be forced to intervene.
Other related insights:
In ruling no. 19321, published on 15 June 2022, the Court of Cassation considered the dismissal for justified subjective reason for an employee who worked during leave for “serious family reasons” legitimate.
In the case covered by the Court of Cassation’s ruling no. 19321/2022, on 15 May 2017, a worker requested to take leave from 1 June 2017 to 30 September 2017. In response to the company’s invitation to specify the reasons for the request, he attached his wife’s medical certificate of pregnancy, which specified concerns related to miscarriage and prescribed 30 days of home care and rest.
The company, in a note dated 1 June 2017, granted the request, qualifying it as a leave of absence for “serious family reasons” under Art. 157 (formerly Art. 151) of the relevant national collective agreement and Art. 4, paragraph 2, of Law no. 53 of 2000.
During the period of leave, the company conducted some investigations, during which it emerged that the employee carried out cleaning for the company he and his wife owned.
On 1 August 2017, the company initiated disciplinary proceedings, which ended with the dismissal for just cause announced to the employee on 25 August 2017.
The Court of Appeal held that the justified subjective reason for dismissal existed because the worker violated the express prohibition, under Art. 4, paragraph 2, Law no. 53 of 2000 and Art. 157 of the collective agreement, to work during the period of leave for serious family reasons.
The employee challenged the measure in an appeal to the Court of Cassation, claiming that the leave requested (i) was for “personal reasons” and not “serious family reasons.” Therefore, the above legal provisions and consequent prohibitions did not apply (ii) it had not entailed any financial benefits for the worker, since the work had been performed at his own and his wife’s company; (iii) it had not caused any damage to the company, which was under a system of “defensive solidarity” contracts and, had not needed to replace the employee.
Continue reading the full version published in Modulo24 Contenzioso Lavoro (Form24 Labour Litigation of Il Sole 24 ore.
With the recent ruling no. 181 published on 27 April 2022, issued as part of the Fornero Procedure opposition proceedings, the Court of Vicenza expressed its opinion on whether absences due to illness attributable to the employee’s disability can be included (or not) in the protected period.
The case originated from the dismissal of an invalid employee for having been absent due to illness for a period exceeding 365 days in the last three years, thus exceeding the protected period governed by the Agidae social-assistance collective labour agreement applicable to the employment relationship.
The employee, challenging the dismissal, objected to its discriminatory nature on grounds of disability, asking the Judge to declare it null and void.
In support of her argument, the employee invoked the Community legislation on direct and indirect discrimination (EU Directive 2000/78/EC) and rulings of the European Court of Justice on the subject, arguing that the employer was obliged to adopt “reasonable accommodations” to “guarantee persons with disabilities full equality with other employees.” This means the employer should have excluded from the protected period calculation the days of absence attributable to “endometriosis”, which was her declared disability, to avoid exceeding the protected period.
The Court, confirmed the order made during the summary proceedings and rejected the employee’s opposition based on several arguments.
While it is undeniable the European Court of Justice found indirect discrimination against the disabled in the way absences due to illness were calculated, since the disabled employee was subject to a greater risk of accumulating sick days, it is equally true that the conclusions reached by the European Court cannot be applied to every disabled person’s dismissal.
This is because it is up to the national court to establish whether the employer has ensured “reasonable accommodation” for equal treatment and verify the legitimacy of the purpose pursued by the national legislation.
During the proceedings, the Court found that the employer had adopted numerous “reasonable accommodations” in favour of the employee, including undergoing medical examinations which determined the employee’s fitness for the specific task.
The Court expressed the need to weigh the legally relevant interests of the parties, i.e., the disabled person’s interest in maintaining a job suited to her physical and mental condition and the employer’s interest in obtaining a useful service for the company, considering that Art. 23 of the Constitution prohibits welfare benefits, including those at the employer’s expense, unless provided for by law.
Continue reading the full version published in Norme & Tributi Plus Diritto of Il Sole 24 Ore.
In ruling no. 1240/2022 of 25 March, the Court of Foggia confirmed the prevailing principle that the burden of proof to demonstrate the contested oral dismissal is on the employee.
In this case, the employee claimed he was orally dismissed on 3 January 2020, stating that he was notified of an “immediate suspension of employment” with an invitation to resign. In the following days, the employee challenged the dismissal and communicated, by certified email, his immediate availability to resume work.
The company objected arguing the employee had arbitrarily left the workplace and was absent without leave. This absence was uncontested by the employee given that the company had waived its right to disciplinary action.
The Court of First Instance, following an in-depth preliminary investigation, rejected the employee’s claim because he had not proved the existence of the contested oral dismissal. Otherwise, according to the judge, it can be concluded that, even in the absence of the formalisation of the resignation, the relationship was terminated by the will of the employee who did not return to the workplace. The Court cited previous cases and stated that the employee who challenges the dismissal based on it not being in writing, must prove that the termination is attributable to the employer’s will since just stopping work is not enough.
Continue reading the full version published on Il Quotidiano del Lavoro of Il Sole 24 Ore.
Con ordinanza 4404/2022 del 10 febbraio, la Cassazione torna a esprimersi circa i profili di legittimità del licenziamento (per giusta causa) intimato al lavoratore sul presupposto del grave inadempimento legato al rifiuto di assoggettarsi al trasferimento ad altra sede. Con l’ordinanza in commento, la Suprema Corte ha stabilito che, anche in ipotesi di trasferimento che violi l’articolo 2103 del codice civile, il lavoratore non è legittimato a non prestare la propria prestazione lavorativa quando il rifiuto violi il principio di buona fede.
L’ordinanza in commento trae origine da una complessa vicenda giudiziale instauratasi a seguito del licenziamento per giusta causa intimato da una nota compagnia telefonica a un suo dipendente che, a seguito di trasferimento motivato dalla soppressione dell’unità organizzativa di appartenenza, si era rifiutato di recarsi presso la nuova sede di lavoro.
Nel primo grado di giudizio, il Tribunale di Potenza aveva accolto le domande proposte dal lavoratore volte a impugnare il provvedimento datoriale di trasferimento nonché il successivo licenziamento, intimatogli per il rifiuto di raggiungere la nuova sede di lavoro.
Con sentenza 566 del 2011 la Corte d’appello di Potenza, in riforma della pronuncia di primo grado, aveva invece ritenuto illegittimo il trasferimento e il conseguente licenziamento, con ordine al datore di lavoro di reintegrare il dipendente, sul presupposto che il datore di lavoro non si sarebbe comportato secondo buona fede e correttezza nella gestione delle conseguenze che erano derivate dalla soppressione della unità organizzativa di appartenenza, con conseguente legittimità del rifiuto del lavoratore di recarsi presso la nuova sede.
Continua a leggere la versione integrale pubblicata su Il Quotidiano del Lavoro de Il Sole 24 Ore.
