October 25, 2024
Individual Termination
It is legitimate to extend contract provisions on disciplinary sanctions to similar cases
Cass., Employment Section
A worker, a company union representative, entered the company premises during the pandemic emergency outside working hours and without personal protective equipment. In the presence of colleagues, he also created a potential gathering, prohibited at that time. The company decided to terminate his employment for these actions. The worker challenged the termination in court with mixed outcomes. The Court of Appeal, in particular, reduced the severity of the incident, emphasizing that access to company premises was part of a protest organized by the union the worker belonged to. The worker’s behavior could thus be classified under the collective bargaining agreement (CCNL) clause relating to actions harmful to company hygiene or safety. The Supreme Court upheld the worker’s case, reiterating that termination is not lawful if the contract imposes conservative sanctions (i.e., reprimand, fine, or suspension) for the conduct in question. Additionally, the Court clarified that, when the contract includes “illustrative” conservative sanctions (without a closed list of infractions), the judge may assess if the behavior can be equated with offenses subject to such sanctions. This does not imply applying a conservative sanction in cases not foreseen but rather recognizing that the contract allows room for analogous cases.
The Court thus deemed the termination unlawful.
November 4, 2024
Personnel Management
Tax Residence: New Rules for Individuals and Companies
Italian Revenue Agency
The Italian Revenue Agency updated the criteria for determining the tax residence of individuals and entities starting in 2024, introducing significant changes. For individuals, a “physical presence” criterion in Italy is introduced, applicable to those who spend most of the year in Italy, even if not continuously. This criterion also applies to remote workers, provided they spend a substantial number of days in the country.
For legal entities, tax residence can be determined based on three alternative criteria: legal seat, effective direction, or main operational management. This update aims to provide greater clarity, harmonize Italian rules with international conventions, reduce the risk of double taxation, and adapt to new working methods.
July 17, 2024
Employee Monitoring
Access to Employee Email Prohibited Without Proper Notice
Privacy Authority
A company kept the corporate email account of a sales representative active for three years after the end of employment. In the context of a lawsuit for industrial secrets misappropriation, the company authorized a forensic engineering firm to access these emails for evidence. However, the Privacy Authority deemed the company’s data processing unlawful. Email collection occurred in breach of privacy due to an incomplete notice from the employer. Specifically, the notice did not specify the duration and manner of email storage or the purpose and timing of any monitoring. Consequently, the processing violated GDPR principles of proportionality and data minimization.
October 25, 2024
Harassment – Sexual Harassment
Limits to Moral Damage Compensation for Workplace Harassment
Cass., Employment Section
This case involved a female employee subjected to sexual harassment and violence at work by two superiors. Both the trial and appellate courts upheld the employer’s liability, awarding the victim compensation for non-pecuniary damage, including increased compensation for subjective moral suffering given her age and religious background, which amplified her inner suffering. The moral damage was added to the compensation for physical harm. The employee appealed, questioning the basis for calculating compensation.
The Supreme Court rejected the appeal, affirming that moral damage is compensable as a separate item from biological damage, referring to the victim’s internal suffering. The lower court had considered elements symptomatic of suffering, such as age and personal conditions. The Supreme Court also reaffirmed that non-pecuniary damage, tied to personal integrity, cannot be precisely quantified as pecuniary damage. Thus, damage assessment is made equitably, with some necessary approximation, and can only be challenged if it appears unjustified, significantly deviates from common experience, or is disproportionate.
November 4, 2024
Independent and Subordinate Work
Lawyers Remain Self-Employed Even When Collaborating with Law Firms
Cass., Employment Section
A lawyer requested recognition of an employment relationship for her collaboration with an associated law firm, where she had worked professionally for over 13 years, claiming she was effectively an employee. Both the trial and appellate courts dismissed her claim, and the Supreme Court upheld their decision.
The Court reiterated that professional services, even within an association, do not establish an employment relationship, even where internal regulations and organizational structures require coordination for effective collective work. The Supreme Court noted that the lawyer, although exclusively working for the firm, acted autonomously and independently. The Court ruled that the exclusivity obligation, intended to avoid conflicts of interest and ensure insurance coverage, or deadlines and activity coordination, did not imply or reveal subordination.
October 15, 2024
Termination for Just Cause
Termination for Tardiness Legitimate When It Constitutes a Serious Breach
Cass., Employment Section
A security guard failed to see an SMS from the company notifying him of a shift change, arriving 40 minutes late. The company terminated him, considering the delay particularly serious as it left the company without security services for a significant time. The worker had also been previously reprimanded.
The Supreme Court upheld the company’s position, finding the behavior a serious breach of employee duties, given the potential damage it could have caused the company.
October 24, 2024
Termination for Just Cause
Misuse of Breaks During Work Hours is Sanctionable
Cass., Employment Section
This case involved a worker terminated for just cause for repeatedly “misusing” work breaks. The employee was reported for spending over half an hour at a bar with colleagues during work breaks, documented by a private investigation agency hired by the employer. The employee contested the termination. The appellate court upheld the termination, noting that the absences were not mere physiological needs but improper use of work time, and that the employee, being in a senior role, compromised the company’s image.
The Supreme Court confirmed the employer’s right to protect its reputation. The Court explained that “company assets” include both tangible assets and the company’s image. The Court clarified that while indiscriminate monitoring of employees by private investigators is prohibited, it is permissible to use such agencies when misconduct is suspected. The termination was thus upheld as legitimate.
