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.

The Court of Cassation has recently confirmed that the ‘abusive’ use of leave to care for disabled family members, as referred to in Article 33, par. 3 of Italian Law no. 104 of 1992, not only justifies dismissal, but can also be ascertained by private investigators. In this case, the employee had challenged his dismissal for just cause communicated by the company which, following an investigation, had ascertained that the employee, during the days in which he had taken leave under Law 104/1992 to assist his mother, had carried out activities that were incompatible with assisting his parent (going shopping and engaging in recreational activities). His dismissal was confirmed by the trial judges, who held that termination of employment without notice was lawful since the ‘wilfully serious’ violations committed by the employee prevented the temporary continuation of employment as they damaged the fiduciary link between the parties to the relationship. The Court also recognised the lawfulness of the investigation carried out by the company to verify the existence of unlawful acts committed by the employee while taking leave. The employee appealed against this decision before the Court of Cassation, challenging the decision on the merits, mainly with regard to the lawfulness of the checks carried out by the company, for the latter had not informed the employee of these checks and how they were carried out so that they were detrimental to the dignity of the employee and were contrary to privacy legislation.

Continue reading the full version published in Norme & Tributi Plus Diritto of Il Sole 24 Ore.

With order 1888 dated 28 January 2020, the Court of Cassation has ruled on a case of dismissal for unlawful justified objective grounds with the consequent reinstatement in the job based on article 18 of Law No. 300/1970 (in the text prior to the amendment brought about with Law No. 92/2012). By expressing a general principle, first of all, the Court has stressed that «the actual protection of the job can in no way go so far as to exclude the possible impact of subsequent vicissitudes entailing the termination of the binding obligation». In the case at issue, with judgment 705/2017 and by reversing the ruling of first instance, the Court of Appeal of Catania declared the unlawful nature of the dismissal served by the employer on 18 July 2005 and ordered the reinstatement of the appellant in the job, regardless of the fact that the total discontinuance of the business had supervened pending the proceedings. The employer brought an appeal before the Court of Cassation against the appeal judgment complaining, amongst other reasons, the breach and the false application of article 18 of Law No. 300/1970 and of section 1463 of the Civil Code. In particular, according to the employer, in the appeal proceedings, the Court allegedly failed to examine crucial facts for the purposes of the reinstatement judgment, amongst which, the discontinuance of the business occurring after the dismissal and the filing of a proof of claim in the composition with creditors with the relevant assignment of assets to the creditors validated at a later stage.  Based on a principle already set forth, the Court of Cassation has deemed that «the reinstatement is an effect of the ruling handed down pursuant to article 18 of Law No. 300/70 unrelated to the exercise of the employer’s potestative rights who, thus, may at all times infer the total or partial inapplicability to the case under dispute» (Court of Cassation 28703/2011). Should the supervened total discontinuance of the business be ascertained in the specific case, it would de facto amount to a cause of actual supervened impossibility not ascribable to the employer such as for the binding obligation to no longer exist, together with the corresponding applicability of the real protection. In light of the principles cross-referenced above, the Court of Cassation has upheld the employer’s appeal by holding that, without prejudice to the unlawfulness of the dismissal, the Court of Appeal could not have in any case ordered the employee’s reinstatement since it had failed to take into consideration, in light of the evidential findings, the actual supervened discontinuance of the business.

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