NEWSLETTER T&P N°37 YEAR IV

JUNE 2010

NEWSLETTER
Trifirò & Partners Law Firm

Editorial
The Information Brief article of the previous issue of our newsletter
reported the information that work-related stress risk
assessments were to become obligatory as from August 1.
This issue is here examined in greater details and is the Focus of
our Employment Law section. The new provisions, as already
noted, were introduced by Legislative Decree #81/2008 and
are expected to have a substantial impact on work
relationships. Partner Anna Maria Corna provides an insightful
overview of this issue.
Our Focus feature also reports an important decision of the
Court of Justice of the European Union on fix-term contracts
and the necessity to replace workers. This long-awaited
decision is bound to have implications on cases pending.
Our section on “Firm Cases” opens up with the “Ruling of the
Month” which regards supply of manpower, one of the more
popular schemes used in business. The other cases regard
breach of loyalty as ground for dismissal and a case of anti-
union practice.
The section dedicated to Civil Law examines the new conciliatory
procedures. Partner Stefano Trifirò compares the procedure to be
implemented with those applied in other countries, in particular in
CONTENTS the United States, where alternative dispute resolutions has long
since become part of the legal system there.
✦ EDITORIAL
We are pleased to announce you the starting up of our newly
✦ EMPLOYMENT LAW overhauled website at www.trifiro.it. The site has been
thoroughly upgraded in both its contents and graphics. The T&P
✦ FOCUS 2 website now features new sections headed Firm, Practice Areas,
People, Publications and News. Designed with a view to combining
✦ FIRM CASES 4
the spirit of the Firm and innovative technology, www.trifiro.it reflects
✦ CIVIL LAW, COMMERCIAL, new global trends.
INSURANCE
We'll meet again in August!
✦ FOCUS 6

✦ NEWS 7 Stefano Beretta and the editorial staff: Stefano Trifirò, Marina
Tona, Francesco Autelitano, Luca D’Arco, Teresa Cofano,
✦ CONTACTS 8
Claudio Ponari, Tommaso Targa and Diego Meucci

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 NEWSLETTER T&P N°37 YEAR IV PAGE 2

Employment Law
Focus
By Anna Maria Corna

ASSESSING WORK-RELATED STRESS RISKS

In compliance with EU directives designed to that effect, Legislative Decree n° 9/4/2008 #81 -
which has abrogated and in part incorporated earlier provisions laid down, notably, under
Legislative Decree 626/94 and dealing with workplace safety and hygiene - contains a number
of substantial novelties that concern the evaluation of work-related stress risks.

Risk assessments to be conducted by companies pursuant to art. 17 of Legislative Decree 81/08 should
therefore also integrate as from the month of August that specific form of risk assessment. The provisions
set forth under art. 28 of the above mentioned Decree indeed do not facilitate implementation, insofar as
persons concerned are invited to peruse the European accord of October 8, 2004 and to go by the
indications which should have been issued by the Permanent Consultative Commission on Safety and
Health and are still being expected.

Guidelines have however been drawn up by the joint efforts of a number of government bodies.

Such guidelines help define work-related stress-inducing risks and suggest how to prevent such
circumstances to arise and where to take early action where such risk has occurred.

Assessment must be based on objective factors that are conducible to stress risks and only where
such factors may rate on a scale as medium or medium high risk-generating factors. In a second phase,
a form of assessment of the subjective nature of work-related stress risk is also envisaged.

On the basis of the findings pf international scientific surveys, the guidelines provide a list of the
principal stress-risk inducing indicators that must be identified. Some such make plain sense, like
overlong hazard injuries, sick leaves, turnover, disciplinary procedures, notifications to the appointed
occupational doctor, heavy workloads and high-speed tasks, work hours and shifts. Others regard
corporate organization and, in particular, corporate culture, avenues to career promotion, personal
relationships, combining career and home life, etc.. This second set of factors owes more to
discretionary percipience than to observance of a printed list of indicators. On the basis of the indicators
defined, the information subsequently collected by the employer are set against a scale from low to
medium to high.

✦The employer must also assess the survey of work-related stress risks as conducted by the
emplotees themselves. This implies the exclusion of surveys of individual cases though, also on the
basis of the size of the company, anonymous questionnaire should be circulated, focus groups
organized - where 6 to 12 persons supervised by an expert talk over the issues that give rise to
stressful situations - or semi-structured interviews conducted to gather the elements that induce
stress risk at the workplace.

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 NEWSLETTER T&P N°37 YEAR IV PAGE 3

The findings of such procedures must lead to the
adoption of organizational measures designed to
prevent or improve situations at the workplace,
and, only in cases clearly ascertained, may lead to
specific interventions directed by the occupational
doctor of competence.
The employer bears full responsibility for the
implementation of the work-related stress risk
assessments, but also such persons as are
appointed to conduct such assessments,that is,
such experts as occupational doctors,
psychologists, sociologists, etc… and, above all
the employees and their representatives, not
least of which the health and safety officer.
The combination of all these elements is
indispensable to raise the awareness of
employees and to involve them in all the phases
of the procedure.
Guidelines for management apply differently,
however, to companies employing fewer than
10 workers, where risk evaluation need only
conform to art. 17 of the Legislative Decree
81/08 (which also includes stress risk) and
where self-certification issued by the employer
suffices, provided it is nonetheless supported
by records which do not, however, need not be
annexed to the risk assessment report.
>> Guidelines:
Work-related stress risk evaluation

THE EUROPEAN COURT OF JUSTICE RULES ON FIX TERM

CONTRACTS FOR REPLACEMENTS
By Valentina Ruzzenenti
The European Court of Justice ruled on 24 June 2010 on the merits regarding the interpretation of
clause 8 of the framework employment accord on fix-term contracts, signed on 18 March 1999 and
made effective by the directive of the Coucil dated 1999/70/EC. The Court lays down that fix-term
contracts entered into for the scope of replacement, the abrogation introduced by Legislative Decree
n° 368/2001 of the obligation to indicate the name of the employee replaced and the motive of the
replacement were lawful provided such replacements applied to only certain categories of workers
and was compensated by protection measures. The onus falls on the local judge to construe from
the discrepancy between the Italian legal system and the EU legislation such interpretation as shall
reasonably conform to the latter.

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 NEWSLETTER T&P N°37 YEAR IV PAGE 4

Firm Cases
RULING OF THE MONTH
OVERLONG ABSENCE OF CONTRACT WORKER - CONDUCT QUALIFYING AS
RESIGNATION - CLAIM FOR PAYROLL WORKER STATUS WITH EMPLOYER AS PRINCIPAL
IRRELEVANT
(Tribunal of Monza, 9 April 2010)

A contract worker brought action against his manpower supply agency claiming that the
contract of supply of services amounted to no less than a regular employment contract
for the company he had been contracted to. The user company counter-claimed that over
the last month and a half of the duration of the last contract as supplied manpower, the
employee had gone on leave without notice or justification of said leaves to either the user
company or the supply agency. The user company stressed that it had informed the
manpower agency of the absence of the employee and that the agency had opted to wait
for the expiry of the contract before taking disciplinary action.

The company, instead, contended that, in view of the overlong and unjustified absences
of the worker, both the relationships between the employer and the supply agency and
the contract between the user company and the supplied worker were to be deemed
terminated. The company, in any event, held the manpower supplier fully responsible and
requested to by held harmless from any claims whatsoever were the contract to be
declared in breach of law. Additionally, the user company contended that the contract of
manpower supply had been duly entered into.

The Tribunal of Monza verified the claims of the supply agency regarding the absence
from work for a month and a half of the contract worker, and the fact that said worker had
informed said agency he intended to return to his country of provenance without even
requesting holidays nor, much less, expressing any intention of returning to work.
In addition, the user company had known nothing of all the above.

The Tribunal made it clear that the worker showed no interest neither in his relation with
the supply agency nor with his contract employer. The Tribunal declared that the “erratic
inconsistencies” of the worker were clearly indicative of a wish to resign and that the
setting of such conduct against his wish to enter into a regular no term contract with his
employer “could not generate effects also (and specifically) because of such conduct”.
Lastly, the Court rejected the request of the worker “insofar as the ascertainment of the
illegitimacy of the supply contract made by the court and its subsequent modification into
a regular no term payroll contract with the user employer, as well as the admissibility of the
request for condemnation and the reactivation of such contract relationship and the
payment of damages are inconsistent with the termination of said relationship by way of
rescissionproducing different and separate effects at law from termination by expiry”.

(Counsels: Marina Tona and Francesco Chiarelli)

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 NEWSLETTER T&P N°37 YEAR IV PAGE 5

OTHER RULINGS
BREACH OF TRUST AUTHORIZES DISMISSAL AT A MOMENT'S NOTICE

✦(Tribunal of Naples, 12 April 2010)

In the first of two cases, an employee had obtained from a third party who was also supplier to the
employer a loan at preference conditions (free of interest). The Tribunal stated that an employee who
requests and obtains a sum of money from a supplier upon which he is in a position to exercise
decisional pressure with regards to subsequent payments puts himself in breach of trust insofar as by
so doing he put himself in a position of conflict of interest and in such blatant contrast with the
fundamental principles of diligence, loyalty, proper conduct and bona fide as due an employee in the
discharge of his duties.
(Counsel: Luca Peron)

✦(Tribunal of Novara, 13 May 2010)

In the second case, a number of workers were dismissed without notice because they had taken
advantage of the night shift to penetrate into the warehouse of their employer and had removed
foodstuffs stored there. The workers claimed that said food was destined for their meals during work
hours and that, in any event, the value of the foodstuffs was minimal (a couple of euros). The Tribunal,
though following the procedure of emergency cases, rejected such claim and stuck to court practice
whereby absence (or minimal value) of damage to assets incurred by the employer is held as irrelevant
in arguing unfair dismissal in such cases.
(Counsel: Luca Peron)

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 NEWSLETTER T&P N°37 YEAR IV
Civil, Commercial and
Insurance Law
Focus
T H E N E W C O N C I L I AT O R Y
PROCEDURE
By Stefano Trifirò
The February 2010 issue of our newsletter
reported the information that conciliatory
procedures for civil and commercial disputes
would become obligatory, pursuant to
Legislative Decree 4 March 2010 #28 and
that such procedure was to take effect as
from 21 March 2011.
Alternative dispute resolutions (ADR) have
long since been adopted by other countries.
In the United States, for instance, ADR became
the subject of a debated between academics in
the 1950s. The procedure came into being in the
70s with a view to unburdening the legal system
and cut the backlog of pending cases.
Since then, the American system of resolving
disputes amicably has been running smoothly and
has generated positve results. In 2009, in the
Eastern District of New York, for example, 130
cases out of 174 were resolved and/or conciliated
and the remaining 44 cases are pending
resolution or will be sent back to the court for
judgment.
The cases that typically go through an ADR
procedure regard discrimination at the
workplace, compensation for medical
expenses, trademarks and patents, banking
transaction contracts and family issues.
Before the introduction of the new system,
conciliation in Italy was typically conducted by
TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO
PAGE 6
the judge in the course of the first hearing and
was more a formality than anything else.
The new system, instead, provides for the
introduction of experienced "auxiliaries and
collaborators" trained for that kind of procedure
and used to finding the line of least resistance to
facilitate conciliation.
An examination of Legislative Decree 28/2010
shows that the main features that should
contribute to the development and success of
dispute conciliation are that mediation practices
are not subject to formal dictates, that mediation
procedure may not last more than 4 months and
that the party that shall refuse to enter into a
conciliatory procedure for no valid reason shall
find itself in a more difficult position in front of a
court, and that conciliation procedure is executive
and has the power to enforce decision against the
debtor.
The success of the new conciliation procedure
will depend to no small extent on the stil-to-be-
issued directives designed to qualify the
professional training of mediators, the
impartiality of such mediators and in what
measure such procedure shall prove less
expensive that ordinary legal action.
In spite of it all, the fact remains that the parties
who shall refuse to go ahead with conciliation
procedure will gain additional time to stall and
withhold payment, in blatant disregard of the rule
of law while concurrently making the best of all
the flaws that a dreadfully slow justice system
allows!
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 NEWSLETTER T&P N°37 YEAR IV
PAGE 7

News
NEW WEBSITE: www.trifiro.it

The site has been thoroughly upgraded in both its contents and graphics. The T&P website now features new
sections headed Firm, Practice Areas, People, Publications and News.

Designed with a view to combining the spirit of the

Firm and innovative technology, www.trifiro.it
reflects new global trends. The siteis meant as a
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depth analyses in a multimedia and interactive
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The principal innovation of the News section with
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 TRIFIRÒ & PARTNERS LAW FIRM
Trifirò & Partners has its head office in Milan and branch
offices in Rome, Genoa, Turin and Trento. Founded in the
sixties by Mr. Salvatore Trifirò, it now numbers 80
professionals and staff-workers coordinated by the Partners.
Trifirò & Partners is the foremost firm in Employment Law and

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it also provides legal assistance in the main areas of Civil
Law and, in particular, in Company, Insurance, Commercial,
Finance, Industrial and Sport Law.

The Firm advises major Italian and foreign corporations, and

has a network of qualified affiliates firms throughout Italy,
Europe, United States, China and the United Arab Emirates.
It also ensures on-spot assistance through its lawyers
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the point of reference for professional training, conference participation, the editing of articles for major
newspapers, specialised magazines, publications and books.

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