Category
Case Law
Oct
01
2018
PUBLISHED BY Arlati Ghislandi
TAG: , reimburse, TFR
Presumption of the retributive nature of repeated pay...
The retributive nature of a refund or indemnity paid to the employee must be presumed to be of a retributive nature, despite the fact that the circumstances justifying its payment no longer exist, unless the employer proves the occurrence of an error or the legal groundlessnes...
Sep
27
2018
PUBLISHED BY Arlati Ghislandi
The agreed change in the notice period is legitimate ...
With sentence no. 19080 of 18 July 2018, the Court of Cassation confirmed its consolidated orientation according to which the parties can establish by mutual agreement a different duration of the notice period with respect to the legal duration or the period set forth in the r...
Sep
26
2018
PUBLISHED BY Arlati Ghislandi
The criterion for determining severance indemnity was...
With press release of 26 September 2018, the Press Office of the Constitutional Court announced that article 3, paragraph 1 of Leg. Decree no. 23 of 4 March 2015, has been declared unlawful in the part where it determines ‘in a rigid manner the indemnity payable to worke...
Sep
21
2018
PUBLISHED BY Arlati Ghislandi
Night work – Recent orientation regarding a pregnan...

A recent sentence of the European Court of Justice decreed the right of a pregnant worker, workers who have recently given birth or workers who are breastfeeding to abstain for health and safety reasons from shift work carried out, even partially at night.

Sep
20
2018
PUBLISHED BY Arlati Ghislandi
The mere reference to a staff reduction procedure doe...

It is unlawful to fire a manager whose reasons were merely traced back by the employer to the opening of a staff reduction procedure.

Sep
19
2018
PUBLISHED BY Arlati Ghislandi
TAG: , sickness
Dismissal for exceeding the ‘protected’ period
The act of dismissal for exceeding the protected period (i.e. period of time during which a sick worker cannot be dismissed) does not necessarily have to contain a complete and detailed description of each period of absence of the worker due to illness, but must still contain ...
Sep
18
2018
PUBLISHED BY Arlati Ghislandi
TAG:
Disciplinary dismissal ordered after the term establi...

The disciplinary dismissal ordered after the term established by the contractual rules is illegitimate due to the inexistence of the disputed fact, and involves application of the regime of real protection (reintegration of worker in the workplace and payment of compensation).

Sep
17
2018
PUBLISHED BY Arlati Ghislandi
TAG: , HIRING
Documents requested at the time of hiring – Hypothe...

A employer’s decision not to hire a worker in the light of his refusal to produce a certificate of pending charges, which is not expressly provided for in the contract, has no legal basis.

Sep
14
2018
PUBLISHED BY Arlati Ghislandi
TAG: , MATERNITY
Right of a working father to benefit from daily rest ...

A recent ruling by the Court of Cassation recognises the right of an employed father to benefit from daily rest periods at the same time that a self-employed mother receives maternity pay due to her for the three months following the birth of a child.

Sep
14
2018
PUBLISHED BY Arlati Ghislandi
TAG:
Specificity of the requirements deduced in a individu...

Employers must give detailed and precise reasons for termination of the individual employment contract. Furthermore, the worker hired on a fixed-term basis must be employed exclusively for the specific reason indicated and closely related to it.

Sep
13
2018
PUBLISHED BY Arlati Ghislandi
TAG: , PAY PACKET
The signing of a pay slip does not prove actual payme...

The signing of a pay slip by the worker at the time of its receipt does not imply, unequivocally, the effective payment of the salary to the extent indicated in the statement delivered. It is therefore admissible to ascertain that the signing is not considered a receipt.

Sep
12
2018
PUBLISHED BY Arlati Ghislandi
TAG:
Limits on the performance of investigative activities...
A recent ruling of the Court of Cassation reaffirmed the firm principle of law according to which the control activity carried out by the employer through particular sworn guards or an investigative agency can in no case concern either the fulfilment or non-fulfilment of a wor...
Sep
04
2018
PUBLISHED BY Arlati Ghislandi
TAG:
Absolute presumption of residence in Italy in case of...

According to well-founded case law, the transfer of the fiscal residence abroad is not relevant when the person concerned has not been removed from the registry of an Italian municipality, after registering in the A.I.R.E.

 

Aug
10
2018
PUBLISHED BY Arlati Ghislandi
TAG: , DISMISSAL
Collective Dismissal – Clarifications on the criter...
With sentence no. 20464 of 2 August 2018, the Court of Cassation offered an interpretation of article 5 of Law no. 223 of 23 July 1991 with regard to collective dismissal. This interpretation highlights how the criteria for dependent family members should be evaluated in order...
Aug
09
2018
PUBLISHED BY Arlati Ghislandi
TAG:
Unlawful registration with INARCASSA for marketing ad...
The Court of Cassation rejected the appeal filed by INARCASSA regarding a sentence pronounced by the Turin Court of Appeals, according to which the registration of a worker who, although in possession of a degree in nuclear engineering, carried out an advisory activity in the ...
Jul
27
2018
PUBLISHED BY Arlati Ghislandi
TAG:
Unenforceability of the protections foreseen for whis...

The protection laws foreseen for whistle-blowers cannot be applied when the person reporting an illicit act has ‘provoked’ the same, for this reason, they in turn become liable for unlawful conduct.

Jul
27
2018
PUBLISHED BY Arlati Ghislandi
TAG: ,
Extension of the advance notice period only with spec...
The parties of an individual employment agreement have the right to establish an advance notice period that differs to the one foreseen in the collective labour agreement, on condition that said possibility is admitted by the regulations of the collective agreement and a speci...
Jul
27
2018
PUBLISHED BY Arlati Ghislandi
Dismissal selection criteria in the case of the ‘re...
When the expected work requirements of a tender are significantly reduced, making it necessary to dismiss perfectly fungible workers, the employer’s decision on which employees to dismiss is carried out according to very precise criteria, violation of which can determine...
Jul
25
2018
PUBLISHED BY Arlati Ghislandi
TAG: , PENSION
Applicability of the principle of ‘sterilisation’...
The Constitutional Court declared that the principle of neutralisation of pension contributions (detrimental), paid following the maturation of the minimum contribution requirements in order to access pensions and, paradoxically, has the effect of reducing the amount of pensio...
Jul
20
2018
PUBLISHED BY Arlati Ghislandi
TAG: , ,
Awarding of maternity pay to a pregnant employee who ...
The Constitutional Court established that the pregnant employee had a right to claim maternity pay, even in the case the absence from work exceeded the 60-day period from the start of the absence from the workplace and the beginning of the maternity leave period, ascribable to...
Jul
12
2018
PUBLISHED BY Arlati Ghislandi
TAG: , ,
Dismissal for ‘poor performance’

A recent ruling of the Supreme Court upheld the legitimacy of the dismissal of an employee, following the adoption of three disciplinary provisions, which were adopted due to the repeated negligence and intentional slow execution of the work by the appointed employee.

Jul
09
2018
PUBLISHED BY Arlati Ghislandi
TAG: , MANAGER, LAYOFF
Dismissal of a manager is disciplinary when based on ...

The dismissal of a manger is considered ‘disciplinary’ when the unlawful conduct of an employee, in the broad sense of the word, is such, even only in part, to jeopardise the relationship of trust with the employer.

Jul
04
2018
PUBLISHED BY Arlati Ghislandi
TAG: , LAYOFF
Nullity of dismissal due to early dismissal before th...

In order to settle the dispute, the Supreme Court Appeals Section established the law principle, according to which the dismissal before the sick leave entitlement period expired was void.

Jul
03
2018
PUBLISHED BY Arlati Ghislandi
TAG: ,
When the employee exercises the Freedom of Communicat...
When an employee exercises the freedom of communication right during a disciplinary procedure, it falls outside of the obligation to represent the disputed facts from an objective perspective. As said evidence does not depend on the requirement of truth and relevance, it is ac...
Apr
13
2018
PUBLISHED BY Arlati Ghislandi
TAG: , DISMISSAL
Unlawful dismissal of worker for not preventing a cri...

With sentence no. 8407 of 5 April 2018, the Court of Cassation ruled that the dismissal of a worker for failing to prevent another worker from committing a crime against the employer was unlawful, as it did not violate the contractual obligations.

Mar
27
2018
PUBLISHED BY Arlati Ghislandi
The requirement of specificity in disciplinary disput...
A recent ruling by the Court of Cassation established the principle of law according to which the specificity of a disciplinary dispute should not be verified according to rigid schemes, but rather evaluated taking due account of the context in which the facts took place and w...
Dec
11
2017
PUBLISHED BY Arlati Ghislandi
Extraordinary leave and nocturnal assistance

Employees are entitled to enjoy the extraordinary leave for the assistance to family members set by art. 42, c. 5 of Legislative Decree no. 151/2001 even if the assistance is mainly rendered during night hours, while covered by other people during daytime.

Nov
20
2017
PUBLISHED BY Arlati Ghislandi
TAG: , ,
Who can proclaim trade union assemblies?

Corte di Cassazione recently stated that also a single member of RSUs (trade union representatives in the company) can proclaim trade union assemblies.

Oct
27
2017
PUBLISHED BY Arlati Ghislandi
Company data and files – internal policies can limi...

Corte di Cassazione, with a recent judgement, determined that termination of an employee who copies company files and documents, can be considered lawful, even if the contents of copied files are not transmitted to third parties.

Oct
02
2017
PUBLISHED BY Arlati Ghislandi
TAG: ,
Leaves pursuant to Law 104 also for part-timers

Corte di Cassazione has ruled that the employee who assists a disabled family member is entitled to the three days of monthly leave provided by Law no. 104/92 also if the employment relationship is transformed from full-time to part-time.

Sep
27
2017
PUBLISHED BY Arlati Ghislandi
TAG: , ,
Company car for business and personal use – unlawfu...

The Corte di Appello of Turin with its judgment, in line with what repeatedly established by case law - stated that - the assignment to workers of a company car, to be expressly used for business and for personal use at the same time, is to be considered as remuneration.

Aug
18
2017
PUBLISHED BY Arlati Ghislandi
Unsuitability to duties: reinstatement if the dismiss...

Corte di Cassazione, with judgement no. 20122 of August 17th, 2017, confirmed the unlawfulness of a dismissal caused by the unsuitability to the employee’s duties, declared by the competent physician, providing the employee’s reinstatement into the workplace.

Jul
17
2017
PUBLISHED BY Arlati Ghislandi
The exceeding of the protected period and the promptn...
The Court of Cassation, work division,  in its ruling of 27 June 2017, no. 15973, established that, as regards the dismissal due to the exceeding of the protected period, the timeliness requirement does not consist of a fixed chronological predetermined value, but must be...
Jul
14
2017
PUBLISHED BY Arlati Ghislandi
Accident during the journey between home and workplac...

The recent ruling of the Court of Cassation established that the evidence for a compensation in case of accident during the journey between home and the workplace is to be given exclusively by the worker.

Jul
06
2017
PUBLISHED BY Arlati Ghislandi
TAG: , , INAIL
Usage of mobile phones and cancer – confirmation of...
Jun
22
2017
PUBLISHED BY Arlati Ghislandi
TAG: , PRIVACY, LAYOFF
Termination of employment for those who spend an exce...

The employee who systematically uses the employer’s internet connection for personal purposes can be terminated on justified subjective grounds.

May
23
2017
PUBLISHED BY Arlati Ghislandi
Legitimate termination of employment in case of unsui...

Corte di Cassazione judged the disciplinary termination of employment, whose extended absence from work due to illness results unjustified for unsuitability of medical certification, to be lawful.

May
10
2017
PUBLISHED BY Arlati Ghislandi
TAG: , ,
Video surveillance: agreement with trade unions neces...

Installing a video surveillance system without a prior agreement with trade unions is a criminal offense, according to Corte di Cassazione, even if employees had provided their consent.

Apr
06
2017
PUBLISHED BY Arlati Ghislandi
Transfer of company implying transfer of assets of a ...

Corte di Cassazione – labor section, with decision no. 6770 of March 15th, 2017, has determined that a transfer of company may be configured regardless of the type of contract signed by involved parties.

 

Mar
24
2017
PUBLISHED BY Arlati Ghislandi
Non-suitability to duties: medical report and termina...
Corte di Cassazione has recently determined that the medical report issued by the company’s doctor is not, by itself, suitable to justify termination of employment due to the employee’s permanent inability to perform his or her duties, since the report is not itsel...
Mar
03
2017
PUBLISHED BY Arlati Ghislandi
TAG: , , DISMISSAL, CRISIS
Company restructuring and higher profitability

With a recent decision, Corte di Cassazione pronounced itself upon the lawfulness of termination of employment for a worker due to the reorganization of a company, though without any crisis situation.

Dec
21
2016
PUBLISHED BY Arlati Ghislandi
Refusal to work due to transfer without notice: unlaw...

Corte di Cassazione recently ruled that disciplinary termination of employment due to the employee’s refusal to work, following immediate transfer to another business unit, is unlawful.

 

Oct
26
2016
PUBLISHED BY Arlati Ghislandi
Bank holidays off work – The National Collective B...

The Supreme Cassation Court, upholding the decisions of the previous sets of proceedings, reiterated that the right to remuneration for bank holidays provided by law, cannot be excluded or limited by labour bargaining.

 

Sep
13
2016
PUBLISHED BY Arlati Ghislandi
Null and void trial period agreement: effects on dism...

The nullity of a trial period agreement doesn’t automatically determine the reinstatement and compensation of the employee.

Jul
27
2016
PUBLISHED BY Arlati Ghislandi
Legitimate dismissal whether the employee does not en...
The Supreme Court has stated that it is obligation of the employee, who is absent due to illness, to check that: - The doctor issues the medical certificate for sick leave; - the telematics procedure of transmission, of the relevant medical certificate to INPS was successful...
May
04
2016
PUBLISHED BY Arlati Ghislandi
Old “co.co.pro.” (project-based collaborators): r...

With a recent verdict, “Corte di Cassazione” (Italian Supreme Court) came to a decision upon the legitimacy of a co.co.pro. contract, in which the project was not clearly stated, as required by previous regulations.

Apr
27
2016
PUBLISHED BY Arlati Ghislandi
TAG: , TFR
Work performed abroad: allowances are included in TFR...
The Supreme Court, with a recent verdict regarding TFR (severance allowance), stated that compensations awarded by an Italian employer to an Employee who works abroad, must be considered as salary, not reimbursement of expenses, and therefore must to be considered for the...
Mar
08
2016
PUBLISHED BY Arlati Ghislandi
TAG: , , AGREEMENT
Sale of business and shift workers in the incoming co...
The Court of Cassation, Labour Section, with the judgment of February 9, 2016, n.2523 stated that if the agreement concerning the sale of the company does not specify the employees’ name to be hired in the incoming company, but is limited to establish generally the param...
Nov
13
2015
PUBLISHED BY Arlati Ghislandi
Unlawful dismissal for a defense right delayed

Through the sentence No. 23140, dated November 12th 2015, the Court of Appeal affirm that, in case of disciplinary objection, the term equal to 5 days isn’t entailing the forfeiture of defense right.

Nov
11
2015
PUBLISHED BY Arlati Ghislandi
Disciplinary sanction for improper use of Company ema...
Through the sentence No. 22353, dated November 2nd 2015, Supreme Court reaffirm that, when the disciplinary code or the NCBA provides the conservative sanction application for an improper use of Company email, in case of no respect of the specific regulation, the justified dis...
Apr
01
2014
PUBLISHED BY Arlati Ghislandi
Disciplinary dismissal: disproportionate penalties in...
With Ruling N. 6222 of 18 March 2014, the Court of Cassation ordered that the use, even daily, of a company’s email address for private purposes, as well as the installation on the computer of non-work-related programs, does not constitute a violation sufficient to autho...