June 27, 2024

Confidentiality and Privacy

Legitimacy of recording conversations between colleagues

Cass., Labor Section

The Court of Cassation has ruled that the hidden recording of conversations between colleagues can be legitimate if used to defend against reprisals feared following a whistleblower report. This decision originated from the appeal of a manager who had secretly recorded a conversation with her colleagues and then published it on a social network.

The case began with the manager’s report concerning alleged misconduct by a director. The report, sent via certified email to various recipients, did not follow the procedures outlined in the three-year anti-corruption prevention plan. Subsequently, the manager recorded a conversation with a university professor and posted it on Facebook, distorting its content.

The Court confirmed that hidden recording is not inherently illegal but must be necessary to defend a right in court. In this case, the Court determined that the manager had not demonstrated a valid defensive necessity for the recording and subsequent publication. These actions were seen as an attempt to discredit colleagues and the institution.

With this ruling, the Court of Cassation underscores the importance of the correct and proportionate use of hidden recordings in the workplace. Whistleblower protection is guaranteed only if appropriate procedures are followed, safeguarding both the rights of the reporters and the integrity of the work environment.

June 17, 2024

Working hours, vacations, leave

Travel time between clients and to the workplace counts as working hours

Cass., Labor Section

The Court of Cassation reaffirmed that preparatory time for work activities counts as working hours if performed under the direction and control of the employer.

The case involved workers performing various tasks at client sites, requiring them to collect the company vehicle at the start of each workday, travel to the different client locations, and finally return the vehicle to the workplace at the end of the day.

A company union agreement stipulated that working hours would start upon arrival at the first client and end after the last client visit, excluding travel time to and from the workplace.

The Court nullified this agreement, confirming that travel time to and from the workplace is fully included in working hours.

June 25, 2024

Self-employment and subordinate employment

Full compensation for repeated unlawful self-employment contracts

Cass., Labor Section

In cases of repeated unlawful self-employment contracts that actually mask a continuous subordinate employment relationship, the worker is entitled to full compensation for damages, not just a flat-rate indemnity. The latter applies only in the case of (irregular) repeated fixed-term subordinate employment contracts.

The Court of Cassation made this ruling, upholding the appeal of a journalist whose employment ended after being engaged as a self-employed worker for over 12 years in a Rai program. Initially, the Court of Appeal had ordered Rai to reinstate the journalist, providing a flat-rate indemnity of six months’ salary.

The Court of Cassation, accepting the journalist’s appeal, ruled that when a subordinate employment relationship disguised as self-employment is established, the indemnity regime does not apply, but rather the compensation regime.

April 22, 2024

Dismissal for economic reasons

The principle of immutability of the reason applies even in dismissal for economic reasons

Court of Appeal of Venice

Even in dismissal for justified objective reason (i.e., for economic or organizational reasons), the principle of immutability of the reason applies. In other words, the employer cannot subsequently justify the dismissal with facts other than those stated in the dismissal letter.

The case concerned a worker performing duties as (i) Head of the Prevention and Protection Service and (ii) Environmental Management Manager. The worker was dismissed due to the declared abolition of the first of these positions.

Following the appeal of the dismissal, the company explained that it had outsourced these duties, a circumstance not mentioned in the dismissal letter. The Court considered the new explanation as a modification of the justification indicated in the dismissal, thus prejudicing the worker’s right to defense.

November 30, 2023

Contracting

Difference between a contract for services and a contract for transport: joint liability

Tribunal of Bologna

A well-known logistics company was ordered to pay wage claims owed by a cooperative, a former contractor that had since gone bankrupt, under the statutory joint liability provision of contracts for services.
The company argued that the contract with the cooperative was for transport, not for services, thus excluding joint liability.

However, the judge ruled that the contract was for services, as the activities involved a complex and continuous organization, with a unitary fee over a prolonged period, thus constituting a genuine outsourcing of production phases. The cooperative did not commit to performing individual transports but provided a continuous and unitary service. The main contract was also accompanied by ancillary agreements, including a publicity contract for using the client’s brand on vans and uniforms and a contract for loading and unloading goods in the warehouse.

The ruling emphasized that the continuity and predetermination of the services prevail, making it a contract for services rather than occasional transport services.

June 27, 2024

Pension and contributions

The redemption of academic years cannot be “neutralized” by switching from the earnings-based to the mixed method

Constitutional Court

The Constitutional Court rejected the constitutionality challenge raised by the Rome Tribunal regarding Law No. 335 of August 8, 1995 (Dini Reform) and Law No. 190 of December 23, 2014 (2015 Stability Law).
The issue concerned the right to neutralize contributions paid for the redemption of academic years necessary to switch from the earnings-based to the mixed system.

The earnings-based system calculates pensions based on the last salaries received by the worker, while the mixed system combines elements of both the earnings-based and contribution-based systems, which instead is based on contributions actually paid during the entire working career. The Court ruled that the neutralization principle applies only within the earnings-based system and serves to exclude additional contributions from the pensionable base, which, linked to lower wages in the last working years, could reduce the pension amount.

In this specific case, neutralization was invoked not to eliminate negative effects of contributions in the earnings-based system but to exit this system and access the more favorable mixed system. According to the Court, it is not possible to choose the pension calculation system based on an assessment made at the time of retirement, as this would contradict the principle of legal certainty that must also govern the pension system. Additionally, the function of redeeming academic years is limited to increasing contributory seniority and does not allow for changing the chosen pension calculation system.