ARTICLES

The motivation for dismissal for
exceeding the compliance period.

With ordinance no.
6336 of 2 March 2023, the Court of Cassation stated that in dismissal for exceeding the duty period,
the employer is not obliged to specify the individual days of absence, as
more overall indications may be considered sufficient.
However, also on the basis of the provisions of article 2 of law
no.
604/1966, which requires the contextual communication of the reasons, the motivation must be suitable to highlight the overcoming of the
behavior in relation to the applicable contractual discipline, acknowledging
the total number of absences occurred in a given period,
without prejudice to the burden, in any judicial office, to
fully attach and prove the facts constituting the power exercised.

Fragility and holidays at the Valencia Carnival: yes
to the right cause.

The Court of Appeal of Florence, with sentence no.
208/2023 of 03/20/2023, confirmed the legitimacy of the dismissal for just cause of the
employee who, during the period of suspension of
work performance due to being in a "fragile" condition, had gone to the
Valencia carnival and published photos on social media while attended the event.
The Court held that "[...] the situation photographed in the two images
complained of unequivocally represents a situation in
which - to use the terminology of the jurisprudence
cited above - either the serious pathology underlying the fragility was simulated, or the
worker's conduct was potentially capable of compromising her
condition of fragility, consequently delaying her return to service,
as can be seen from the fact that on the occasion of a holiday abroad, which took
place in a Spanish city where the traditional
carnival celebration which notoriously attracted thousands of
visitors, the worker was portrayed close to 4 friends, outdoors or in
a public place, without any of them wearing a mask".

The burden of proof in
retaliatory dismissal.

With ordinance no.
6838/2023 of 7 March 2023, the Court of Cassation highlights that the request for nullity for a
retaliatory dismissal can be accepted, and argued by supporting the existence of
an illicit motive underlying it.
It is necessary for the worker to demonstrate that the retaliatory intent
determined the employer's will to withdraw from the employment relationship,
exclusively.

By the lawyer. Marco Craia

A few days ago Prof. Luigi Fiorillo was interviewed by the journalist Giulia Di Stefano during the broadcast "Filo Diretto con i Territori" on #Rai Parliament.
Together with PD senator Antonio Misiani, he was asked about the reform of Citizenship Income and above all about the repercussions that the new MIA will have on active labor policies, employment and the fight against poverty.

WATCH THE INTERVIEW

Law no. 24 February 2023 was published in the Official Journal. 14, of “Conversion into law, with amendments, of the legislative decree of 29 December 2022, n. 198, containing urgent provisions regarding legislative deadlines. Extension of deadlines for the exercise of legislative delegations”, the so-called Milleproroghe Decree .

Below are the main news on employment terms:

• supply contract with the same worker exceeds twenty-four months has been extended to 30 June 2025 , without prejudice to the condition that the employment agency has communicated to the user the existence of the permanent employment relationship with the worker;
• the deadline for the adoption of one or more legislative decrees for the review and reorganization of the current provisions on disability pursuant to law no. of 22 December 2021 227;
• enhancement of the family have been extended to 24 months (replacing the twelve originally envisaged by the enabling law) ;
• the possibility for so-called fragile workers to carry out the service in smart working , also through the assignment of a different job included in the same category or area of ​​classification, as defined by the collective labor agreements in force, without any reduction in salary salary in enjoyment;
• parents employed has been extended to 30 June 2023 , provided that in the family unit there is no other parent benefiting from income support instruments in the event of suspension or termination of the work activity or that there is no non-working parent, to carry out the work in smart working even in the absence of individual agreements, without prejudice to compliance with the information obligations provided for in articles 18 to 23 of law no. 81/2017, and provided that this method is compatible with the characteristics of the service
• New Skills Fund has been extended to the end of 2023 ;
• Third Sector Bodies to adapt to the mandatory rules of the reform discipline of the Third Sector Code has been extended to 31 December 2023
• early retirement plans for workers seven years away from retirement age (so-called isopension) has been extended until 2026

by the lawyer. Wild Cheats.

According to paragraph 2 of the art. 7 of law 300/1970, the employer, in order to adopt a valid disciplinary measure against an employee, is required not only to contest the charge in writing, but also to listen to him orally in his defense where the accused worker make an express request. According to the following paragraph 3, during the oral hearing, the worker may be assisted by a representative of the trade union association to which he joins or mandates. The oral hearing, with or without the assistance of a trade union representative, constitutes a fundamental right of the worker, as it is an expression and direct derivation of his right to defence. Therefore, if the employee requests to be heard orally and the employer does not fulfill the relevant obligation, the sanction imposed may be cancelled. The mandatory nature of the obligation of oral hearing requires the employer to respect it even if the employee has already submitted his justifications in writing without requesting to be heard orally as well. In fact, the employer is precluded from any union regarding the necessity, or opportunity, of the requested defensive integration, considering that the relevant evaluation is left and delegated exclusively to the worker.

In particular, according to the most recent jurisprudential direction, the worker must be granted the possibility of full explication of the right of defense and, therefore, also the possibility, after having presented written justifications without formulating any request for an oral hearing, to develop "a change of heart ” regarding the greater defensive adequacy of the (also) oral representation of the exculpatory elements (Court of Cassation n. 19846/2020). Therefore, if the worker expressly requests it, the employer is required to hear him orally in his defense since the exculpations provided in writing consume his right of defense only when the written declaration shows the waiver of being heard or when the request appears ambiguous or lacking unambiguity (Court of Cassation no. 16421/2019). The right to an oral hearing even after written justifications does not conflict with paragraph 4 of the art. 7 cit., according to which "disciplinary measures more serious than a verbal reprimand cannot be applied before five days have passed from the written notification of the fact which gave rise to it", and this is because the expiry of the indicated term does not determine the forfeiture of the worker's right to request an oral hearing in his defense. Furthermore, if the employee promptly requests the postponement of the requested oral hearing due to a health reason (proven by appropriate medical certification), the employer must necessarily postpone the hearing until the worker's illness ceases. Ultimately, it must be considered that the prior oral hearing of the worker, where expressly requested by the latter, represents an essential procedural prerequisite, which cannot be omitted by the employer, if not invalidating the validity of both the entire disciplinary procedure initiated and of the measure that may follow.

by the lawyer. Raul Scaffidi-Argentina

Law 26 November 2021, n. 206 (in force from 24 December 2021), of "delegation to the Government for the efficiency of the civil process and for the revision of the regulation of alternative dispute resolution tools and urgent measures to rationalize procedures regarding the rights of persons and families as well as in matters of forced execution" (art. 1, paragraphs 32 and 37), has provided that, for proceedings initiated starting from the one hundred and eightieth day following its entry into force, art. will be applied. 543 cpc in its new formulation. It follows that, starting from 22 June 2022, once the seizure with third parties has been registered in the register, by the date of the appearance hearing indicated in the seizure deed, the creditor must:

notify the debtor and the Third Party of the notice of registration in the register, accompanied by the indication of the procedure register number; file the notified notice in the enforcement file.

[continue…read the PDF]