January 21, 2025
Personnel Administration
Recovery of Allowances in Uniemens: When the Employer Loses the Right to Compensation
Cass., Labor Section

INPS challenged certain compensations made by a company in Uniemens following wage supplements provided during the Covid-19 emergency. The entity argued that the company had improperly submitted Uniemens reports for May and June 2020, preventing the legitimacy of the adjustment, even though it was carried out within the six-month period stipulated by law.

However, the Court of Cassation clarified that an error in Uniemens reports—or even their omission—does not invalidate the right to recover wage supplements. The adjustment must, however, be made within the prescribed six-month period. The Court highlighted that compensation occurs automatically through the payment of the contribution difference and that any errors in calculating the amount due affect only the contribution debt without compromising the validity of the adjustment. Thus, the adjustment process does not preclude the employer’s right to recover wage supplements, even if errors exist in Uniemens declarations.

January 20, 2025
Dismissal for Economic Reasons
Economic Dismissal: The Employer Is Not Required to Modify the Company Structure to Comply with the Duty of Redeployment (Repêchage)
Cass., Labor Section

An employee was dismissed for justified objective reasons due to the elimination of his job position. The employee challenged the dismissal, arguing that the company had failed to fulfill its obligation of redeployment (repêchage). When the case reached the Court of Cassation, the judges ruled in favor of the company.

The Court reaffirmed that the obligation of redeployment does not require the employer to create new positions or modify the company’s structure to retain the employee. The only obligation for the employer is to demonstrate that there are no vacant positions compatible with the dismissed employee’s professional skills. Once the elimination of the position is proven, the judge cannot force the employer to retain a position, even at a lower level, as this would interfere with the entrepreneur’s exclusive right to organize the business.

The Court thus rejected the employee’s appeal, confirming that the company had fulfilled its redeployment obligation.

November 29, 2024
Dismissal for Just Cause
Defamatory Statements Against the Employer Do Not Always Justify Dismissal
Cass., Labor Section

An employee was accused of making defamatory statements against the employer during a phone call that was later broadcast by a radio station. As a result, the employee was dismissed for just cause.

Both the Trial Court and the Court of Appeal ruled the dismissal unlawful, ordering the employee’s reinstatement and compensation for damages. The judges found that the employee denied being the author of the defamatory statements and that it was impossible to conclusively attribute the recorded voice to him. The evidence presented by the company was deemed insufficient to prove otherwise.

The Supreme Court upheld the employee’s claims, confirming the lower courts’ decision.

January 27, 2025
Working Hours, Leave, and Permits
Refusal to Perform Duties Is Lawful Only if the Employee Acts in Good Faith
Cass., Labor Section

The Supreme Court reiterated that an employee’s refusal to perform their duties is lawful only if it is made in good faith, considering the specific circumstances of the case.

The case involved a medical director who was disciplined with suspension from duty and salary for failing to report to work despite being on-call and having received a request to provide service. The doctor refused to work, arguing that the on-call physician should only be summoned for emergencies and not for routine ward rounds.

When the case reached the Court of Cassation, the judges ruled in favor of the hospital. The Court held that an on-call physician who is asked to report for duty may challenge the reasons for the request only after performing the required service, thereby avoiding disruption to patient care. The Supreme Court rejected the employee’s appeal.

January 17, 2025
Law No. 104/1992
Abuse of Leave Under Law No. 104/1992 for Assisting a Disabled Relative
Cass., Labor Section

An employee was dismissed for allegedly misusing leave intended for the care of a disabled family member. The Trial Court ruled in favor of the employee, but the Court of Appeal took the opposite view. The appellate judges deemed the time dedicated to care insufficient—only 42.50% of the leave granted—without considering time spent on related activities, such as purchasing medication and facilitating the disabled person’s social participation.

After reviewing the case, the Court of Cassation sided with the employee. The judges emphasized that abuse of leave occurs only when the employee fails to fulfill caregiving responsibilities in a meaningful way, reducing the assistance to a negligible level. A purely quantitative assessment of time is not enough; it is essential to consider the quality of the care provided and its benefit to the disabled person.

Thus, despite the care time amounting to just under half of the allotted leave, the additional activities performed were deemed essential for the disabled person’s well-being. The Court declared the dismissal unlawful.

January 21, 2025
Contracts for Services (Appalto)
Compensation for Unused Leave: The Cassation Court Reaffirms Its Mixed Nature and the Principal’s Responsibility
Cass., Labor Section

The Court of Cassation clarified that compensation for unused leave does not fall within the scope of payments for which the principal is jointly liable under Article 29 of Legislative Decree No. 276/2003.

The case involved an employee working under a service contract who sought judicial recognition of payment for unused leave and permits, claiming both the contractor and the principal were liable.

The Court of Appeal rejected the claim against the principal, stating that the requested payments were not of a wage nature and, therefore, were not covered by the principal’s joint liability.

The Cassation Court, however, specified that compensation for unused leave has a mixed nature—both compensatory and wage-related. It compensates for the employer’s failure to grant the employee the necessary rest while also serving as remuneration for work performed during a period that should have been paid but non-working.

Despite this classification, the Court held that such compensation does not fall under the wage elements covered by Article 29 of Legislative Decree No. 276/2003 but is instead included in the economic and regulatory treatments outlined in Article 118 of Legislative Decree No. 163/2006.

Based on these considerations, the Court ruled in favor of the employee.

January 7, 2025
Dismissal for Just Cause
Between Two Disciplinary Notices, the First One Delivered Is the Valid One
Cass., Labor Section

An employee received two disciplinary notices for unexcused absences. One was sent via registered mail, while the other was handed to the employee in person after the first had been mailed but before it was delivered. The notice sent by mail, which remained unsanctioned, cited a lower number of absent days than the one handed in person. The company proceeded with the employee’s dismissal based on the second notice.

The employee challenged the dismissal, arguing that only the first notice—sent by registered mail—was valid, citing the legal principle of the “subjective split of notification effects.” This principle states that for procedural documents, notification effects occur:
i) for the sender, at the time of dispatch;
ii) for the recipient, at the time of receipt.

The Court of Cassation ruled in favor of the company. The judges determined that the principle of subjective split applies only to procedural acts. A disciplinary notice, however, is a substantive, unilateral, and communicative act that takes effect when it is delivered to the employee or reaches their address.

Thus, when multiple disciplinary notices exist, the first one brought to the employee’s attention is the effective one, even if it was sent or delivered after another notice.