September 16, 2024
Confidentiality and Privacy
Legitimate to use unauthorized audio recordings if necessary to protect a right
Cass., Labor Section

Several employees, in the context of a dispute related to their employment relationship, submitted an audio file as evidence during the proceedings. This file contained a recording of a conversation held several years after the events by another employee with some representatives of the employing company.

The managers involved, unaware of the recordings, filed a complaint with the Data Protection Authority, seeking the deletion of the files. The Authority rejected the request, noting that the data processing was carried out for the purpose of contesting allegations within the employment relationship. The managers appealed the decision in court, which ruled that the Authority’s decision was unlawful and that the employees‘ personal data processing was illicit.

However, the Supreme Court upheld the Data Protection Authority’s position, ruling that an employee can use conversations of their colleagues, recorded without their knowledge and consent, if this use is functional to the judicial protection of their rights.

September 12, 2024
Strike
Strike: legitimate sanction for lack of union communication
Cass., Labor Section

A group of employees abstained from work in protest to support their wage claims, although this abstention had not been preceded by union notification. As a result, the employer decided to discipline the involved employees.

The Supreme Court clarified that, although a formal proclamation or prior communication to the employer is not required for a strike, it is essential that the strike protects a collective interest and is agreed upon in advance to qualify the abstention as a legitimate exercise of the right to strike. The Court stressed that the lack of a collective decision allowing workers to freely participate in the strike excluded the possibility of considering the abstention a legitimate exercise of this right. Therefore, even though a formal strike proclamation is not mandatory, participation must be collectively agreed upon, regardless of who promotes the initiative, in the presence of a conflict protecting the collective interest of workers.

July 5, 2024
Working hours, holidays, and leaves
Psychophysical wear damage: sanctioned the failure to grant compensatory rest
Cass., Labor Section

A transport company failed to comply with the obligation to provide an employee with the minimum daily rest of 11 consecutive hours and the weekly rest of 45 hours.

The employee decided to sue the company for damages caused by the employer’s unlawful conduct.

The Supreme Court acknowledged that the employee had suffered psychophysical damage. The Court, siding with the employee, emphasized that when the employee is denied a day off, compensatory rest must be timely and adjacent to other rest periods, and not fragmented. Fragmented rest, as happened in this case, negates the purpose of rest, which is to allow the worker to recover their energy, especially in more demanding roles.

July 16, 2024
Employee monitoring
Electronic attendance monitoring: employer’s organizational power confirmed
Trento Court

A company providing plant maintenance services had introduced a new electronic system to monitor employees‘ entry and exit times. This system involved smartphones placed in specific areas of the worksite, where employees had to approach their badge upon entering and leaving work. However, one employee refused to follow this new procedure, challenging its compliance with the GDPR and continuing to record her shifts on the old paper forms. Consequently, the employer decided to dismiss her.

The Trento Court sided with the company.

Indeed, the employer can introduce electronic devices to monitor attendance. The employer’s power of organization and direction also extends to seeking and adopting solutions more functional to the company’s needs.

July 15, 2024
Fixed-term employment
The right of precedence in rehiring after the expiration of a fixed-term employment contract
Cass., Labor Section

An employee, after working for a year on a fixed-term contract with a cooperative, expressed the desire to be hired on a permanent basis, but the employer hired someone else. The cooperative argued that the employee had expressed this request late.

The Supreme Court sided with the employee, ruling that her right of precedence in permanent hiring had been violated.

If the fixed-term contract lasted more than six months, the right of precedence can be exercised by requesting permanent employment within twelve months of the termination of the contract.

September 4, 2024
Sickness and injury
The burden of proving the simulation of illness lies with the employer
Cass., Labor Section

An employee was dismissed for cause because, although absent from work due to a hand injury, it was found that he had been working in his bar, even using the injured limb.

The trial courts in both instances declared the dismissal unlawful due to the lack of evidence, resulting in the employee’s reinstatement and compensation.

The Supreme Court confirmed the lower courts‘ decisions, noting that the employer had failed to prove that the employee’s activities had indeed impaired or delayed his return to work.

September 5, 2024
Sickness and injury
Legitimate dismissal of an employee who plays soccer while on sick leave
Cass., Labor Section

An employee was dismissed for cause after participating in a soccer tournament while on sick leave.

The Supreme Court upheld the dismissal, clarifying that engaging in other activities while on sick leave may justify dismissal due to the violation of the general duties of honesty and good faith, as well as the specific contractual obligations of diligence and loyalty. This applies both when the other activity is sufficient to presume the non-existence of the illness used to justify the absence, indicating fraudulent simulation, and when the activity itself, in relation to the nature and characteristics of the reported illness and the duties performed in the employment relationship, is likely to impair or delay recovery and the employee’s return to work.