“Rights and Duties in the Employment Relationship” – Insight no. 314 of October 08, 2024

Contents

July 10, 2024
Compensation and Benefits
The “superminimo” ceases if the company-level supplementary agreement that provides for it is no longer in force
Court of Cassation, Labor Section

An employee filed a lawsuit claiming the right to the so-called “non-absorbable superminimo” provided by the company-level collective agreement applied to her employment relationship prior to the transfer of the business. Following the transfer, the new employer withdrew from all supplementary union agreements, resulting in the cessation of the payment of the aforementioned compensation component.

The Court of Cassation ruled in favor of the employer, noting that the “superminimo” provided by the company-level collective agreement may be modified, even detrimentally, by subsequent collective agreements since its regulatory source is external to the individual employment contract. This is unless the benefit was specifically recognized for particular professional skills, duties, or methods of performing the employee’s work.

In the absence of any of these reasons, the “superminimo” remains a component of collective origin, which can be modified, even detrimentally, by subsequent collective agreements or revoked if the collective agreement is no longer in effect.

September 16, 2024
Illness and Injury
Injury during smart working: INAIL is obligated to compensate
Tribunal of Milan

An employee working in agile mode (so-called “smart working”) requested permission to go to her daughter’s school. The request was granted, but during the trip, the employee fell and was injured. She reported the injury, but INAIL rejected her claim, justifying the refusal on the grounds that the injury did not result from a work-related risk but from a generic risk, common to everyday life situations and unrelated to her work performance. The employee appealed to the Tribunal, which ruled in her favor.

The Judge affirmed that the worker’s injury protection applies whenever the employee leaves the workplace and then returns, during breaks, rest periods, and permitted leaves.

September 30, 2024
Health and Safety at Work
Contracts: the supervisor must be present on site
Ministry of Labor

The supervisor must be physically present on-site in the case of subcontracting, excluding the possibility of selecting them from workers not directly involved in the work at the client’s premises.

This is the response provided by the Ministry of Labor, in reply to an inquiry from the Chamber of Commerce, which highlighted two crucial aspects:

  • The obligation for contractors and subcontractors to appoint a supervisor and communicate this to the client employer;
  • The choice of this figure must involve personnel who effectively carry out the assigned functions and obligations.

Alternative solutions can only be considered after a thorough assessment of the company’s structure.

August 1, 2024
Confidentiality and Privacy
The suspension of an employee who refuses the role of data processing officer is justified
Tribunal of Udine

An employee, a team leader for postal services, refused to sign the document designating her as responsible for personal data processing. Consequently, the employer suspended her from duty and pay, denying her access to company premises. The employee filed a lawsuit to be reinstated, but the Tribunal of Udine ruled in favor of the employer. The Judge observed that the employee’s refusal to accept the role made it impossible for her to continue performing her duties, as her position necessarily involved handling personal data. By refusing to sign the designation document, the employee did not express consent to handle data in compliance with legal requirements, nor to undertake the necessary training. The refusal compelled the employer to immediately halt her work, as it could no longer guarantee that the duties were performed in compliance with regulations. The Judge thus upheld the employer’s decision.

July 26, 2024
Dismissal for Just Cause
Falsified medical certificates: the burden of proof remains with the employer
Court of Cassation, Labor Section

An employee submitted falsified medical certificates to justify absences from work. The employer decided to dismiss him. However, during the court proceedings, it was established that the employee had not falsified the medical documents, nor was he aware of their inauthenticity. Consequently, the Tribunal annulled the dismissal. Both the Court of Appeal and the Court of Cassation upheld this decision. The Supreme Court confirmed that the employer’s failure to prove that the employee was aware of the falsity nullifies the grounds for dismissal. The responsibility for verifying the authenticity of medical certificates does not lie with the employee, who merely transmits them to the employer. The latter, upon discovering the falsity, must prove that the employee was also aware of it.

Indeed, the burden of proving the facts on which the dismissal is based always rests with the employer.

July 8, 2024
Individual Dismissal
A dismissal affected by formal defects may be renewed
Court of Cassation, Labor Section

An employee challenged two dismissals, alleging their illegitimacy. Specifically, the worker pointed out that the first dismissal had been communicated orally. In a subsequent letter, the employer reiterated the dismissal, this time in writing, backdating it to the date of the first communication. The Tribunal dismissed the worker’s claim, deeming the second dismissal legitimate. The Court of Appeal partially overturned the ruling, acknowledging the worker’s right to compensation for wages accrued during the period between the two dismissals, but confirmed the legitimacy of the dismissal. The Court of Cassation upheld the Court of Appeal’s decision, noting that if a first dismissal is defective due to a lack of form, it is permissible to renew it with a second dismissal, free from formal defects, based on the same reasons. The protection that the employee can invoke regarding the formal defect is limited to compensation equivalent to the wages earned during the period between the two dismissals.

June 5, 2024
Collective Dismissal
Collective dismissal: violation of the transparency obligation and the selection criteria
Court of Cassation, Labor Section

An employee challenged her dismissal, which was communicated following a collective dismissal procedure due to staff reduction. The Court of Appeal declared the dismissal unlawful, ordering the employer, in preventive arrangement, and the transferee company to jointly pay compensation equivalent to 27 months’ worth of the employee’s last full salary. According to the Court, the collective dismissal was flawed due to inconsistencies between the initial and final communications. The latter, while reporting a reduced number of redundancies compared to the initial declaration (a circumstance that is legitimate and could represent the result of a joint review), outlined a different allocation of resources across departments, without providing any explanation or an updated outline clarifying in which departments the previously redundant units had been reassigned.

The Court of Cassation confirmed the illegitimacy of the dismissal, holding that the identified discrepancy created opacity and a lack of transparency regarding the actual application of the selection criteria for the dismissed employees, thereby entitling them to reinstatement.

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