Newsletter

Editorial

N 55 February 2012

Trifir & Partners Law Firm

The year has barely started and it is already hammering out other employment law innovations, now looming in the ofng. In the wake of the nancial rescue package of last year and the one on liberalization early this year, our Focus feature covers the main changes listed for labour market simplication in the Bye law 9 February 2012, particularly with regard to joint responsibility in tender operations, which has been expressly extended to the quota of accrued salary on employment termination indemnity (TFR) and to insurance premiums coming to maturity in the course of the execution of the tender contract. With respect to court practice, our readers will be interested by a recent decision of the Tribunal of Milan on transfer of undertakings on the ground of just cause within the ambit of temp working, which falls inside the now consolidated contours of the necessity to thoroughly assess all requisites, inclusive of dismissal. The FQA, this month deals with the pension reform and its impact on dismissal of workers being eligible for retirement. Our Civil Law section goes back on the nancial rescue package and, in particular, on the expectations that attribute and/or bolster the powers of the on the Market and Fair Competition Authority and yet again on tender contracts with a sentence on the proof o the contract. The Insurance section lines up a number of decisions on legitimacy and merit. The FAQ this month answer to the request on when somebody else trademark may be used on spare parts. Our Information Brief deals this time around with the responsibility as offender of legal entities pursuant to bye law #231/2001 and to the possibility of determine, in case of ascertainment of responsibility by the body involved, and upon passing of the sentence, of the quantum of the prot of the offence. We do not doubt you'll nd the reading enriching! Information brief 6 Contacts 7 Marina Tona and the editorial staff: Francesco Autelitano, Stefano Beretta, Antonio Cazzella, Teresa Cofano, Luca DArco, Diego Meucci, Claudio Ponari, Vittorio Provera, Tommaso Targa, Stefano Trir and Giovanna Vaglio Bianco

Employment Law Focus 2 Firm Cases 3 Civil Law, Commercial, Insurance

Employment Law
By Luca DArco

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THE BYE LAW ON SIMPLIFICATION AND CHANGES IN EMPLOYMENT LAW

Bye law on simplication #5, February 2012, published on the Ofcial Gazette of the same day has been recently approved. The Bye law contains a number of modications, among which, art. 29 of the Biagi reform, which lays down under 2 that "in case of contracting out of works or services the contractee or employer is under duty jointly with the contractor, and in the event, with each of the sub-contractors within the limits of two years from termination of the contract, to pay the workers the retributions, inclusive of the accrued salary on employment termination indemnity (TFR), and the social security contributions and the insurance premiums owed in relation to the period of execution of the tender contract, without prejudice for any obligation of civil sanction which still falls under the single responsibility of the non-performer". It is thus made clear that joint responsibility is extended to TFR and to the social security indemnities of the National Institute for Insurance on Industrial Hazards (INAIL) accrued during the period of execution of the contract, whilst joint responsibility is excluded for subject matters pertaining to civil cases, in contrast with the interpretation issued by the Ministry of Labour in an answer to objection #3/2010. Modication of art. 17 of the bye law #151/2001, 2 attributes to the sole responsibility of the Local Health authority the whole procedure of anticipated work of the working mother - inclusive of the adoption of the nal decision of interdiction that fell until now under the competence of the Presidential Decree - where there exist "serious complications of persistent forms of disease". Investigation and adoption of measures of interdiction remain under the competence of the presidential Decree in cases where health and safety requisites pit at risk the working female mother or the child or where there is impossibility to reassign to another work position.

FIRM CASES Ruling of the Month

TRANSFER OF UNDERTAKINGS The subject matter has pursuant to art. 2112, civil code also applies where transfer of undertakings includes workers but not machinery, as transfer of undertakings is legitimate, made up of an organized group of workers also where cession does not involve material assets. (Tribunal of Milan, 9 February 2012) Some workers took action in front of the employment tribunal against a company who had been their former employer, claiming that the transfer of the employment contact to other companies to which they had been transferred to ceded branches of the undertaking, was illegitimate.

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In particular, the petitioners, questioned the alleged reason of their placement in the branch subsequently transferred, claiming that such branch of business was extraneous to the tasks they had carried out. The ceding company counter-claimed, afrming the legitimacy of the cession and the independence and functionality of the division transferred. The Judge not only held that the tasks carried out by the workers were "appropriate and in the nature of their abilities", within the ambit of the corporate organization and the branch of the business to which they are subsequently transferred, but also pointed out how such posting had taken place well ahead (nearly four years) of the cession, so much so that by no means whatsoever the ceding company could have been suspected of any fraudulent intent. In addition, mentioning consolidated judge-made law in matters of transfer of undertakings known as labour intensive, the Judge noticed that even wherever machine tools were not ceded to the transferred branch - something which, in the case on hand, was held by the Judge to have indeed occurred - the cession of the branch of business at issue would have been carried out in any event according to due procedure, under art. 2112, civil code, insofar as its subject matter was an entity made up of employees organized and possessed with specic qualications in light of such considerations, the Judge rejected the claim of the petitioners. (Counsels: Claudio Ponari and Veronica Rigoni)

Other Rulings
INTERIM RELIEF, TERMINATION FOR JUST CAUSE UNDER ART. 2119, CIVIL CODE (Ordinance of the Tribunal of Matera, 13 January 2012) In line with increasingly prevalent court practice, though not uniformly followed, the Employment Tribunal of Milan afrmed the principle whereby the substantial period of time lapsed between employment termination and the proposition for interim relief (ve months) excluded in itself the permanence of a situation connotative of the urgency of the decision made to ward off a serious and irreparable hazard. The Tribunal, in particular, pointed out that this applies to employment cases, where a signicantly smooth procedure is already in place to proceed to a swift examination of the objectively sensitive situation to protect the employee himself as the weaker party in the employment transaction for permanent contract. Signicantly, the Tribunal added that not every dismissal, not every posting, not every assignment of new tasks may justify interim relief. I such were the case, one would have to hold that for such issues subject to controversy the serious, imminent and irreparable prejudice interim, relief would automatically be triggered, owing to the matter under examination, and as the inevitable consequence admissible of the interim decision, in pursuance of art. 700 of the code of civil procedure as alternative form of judicial protection and having the characteristics of a fast-track procedure. (Counsel: Luca Peron)

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FAQ's

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Does the pension reform have an impact on the dismissal of employees eligible for preretirement? The reform of the pension system has somehow a direct and immediate impact on the possibility to terminate employment at will, as against the previous system for workers that met the requisites for retirement. More to the point, such scheme was initially subject to art. 4 2, Act #108 of 11 May 1990. Subsequent Act #247, 24 December 2007, set forth that at will dismissal had to be differed according to the sliding rate of maturity required for eligibility to seniority pension benefits, from the moment of the effective opening of the window of opportunity to access pension. Today, art. 24 4, bye law #201, 6/12/2011, (Monti decree) states that the provisions as at art. 18, Act #300, 20 May 1970, (the Statute of Workers) will remain in place until employees reach the age of 70. Owing the express applicability of art. 18, Act #300, 20 May 1970, until employees reach the age of 70, the employer may not use the right to employment termination on his own initiative (before the employee reaches the age of 70) regardless of the maturity of the requisites for seniority.

COURT OF CASSATION NEWSLINE

By Stefano Beretta and Antonio Cazzella
DISMISSAL LEGITIMATE WHERE EMAIL SCRUTINY UNCOVERS DISSEMINATION OF CONFIDENTIAL NEWS Sentence #2722, 23 February 2012, of the Court of Cassation held as legitimate the dismissal of an employee on the ground of collecting for surveillance without accord and foretelling his email post. The Court held that control of the email of the employee did not contrast with art. 4 of the Statute of Workers where the scope was to ascertain after the facts that a conduct in breach of the fundamental obligations of trust and condentiality had been violated. The Court stated that- upon the surfacing of factual elements that called for an investigation of things past - the defensive control did not concern solely the obligations owing from the nature of the employment contract, but that it was to examine a conduct that put at risk the very image of the company. SENDING TO THE EMPLOYER A LETTER LISTING UNFOUNDED ACCUSATIONS DOES NOT QUALIFY AS JUST CAUSE FOR DISMISSAL Sentence #2316, 17 February 2012, of the Court of Cassation found as disproportionate the dismissal of a female employee who had sent her employer a letter fraught with grave accusations, which thereafter proved unfounded the course of the hearing, the Court pointed out that the facts were not defamatory and that, in weighing the interests at stake, the freedom of speech of the employee prevailed over the exigencies to protect the chain of command existing in the company.
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EMPLOYEE MUST BE REMUNERATED FOR TIME NEEDED TO PU ON OUTFIT AND SAFETY FIXINGS Sentence #1817, 8 February 2012, of the Court of Cassation laid down that the company must remunerate the worker for the time used to pit on the working outt and the other safety xings, insofar as during that period of time the employer remains under the executive power of the employer. The latter could be subject to disciplinary sanctions for bob conformance with the above-mentioned decision.

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Civil, Commercial, Insurance Law
INFORMATION BRIEF
By Vittorio Provera

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COMPANY RESPONSIBILITY AND FREEZING OF PROFITS

A little more than ten years ago the notion of the responsibility of legal persons, such as a corporations or a bank, was put in place It occurred in the wake of a complex case that ended up in court and where it was found that the derivate scheme set in motion benefited from the complicity or of the connivance of a number of people that under art. 19 2 Legislative Decree 231/2001, the court had ordered the freezing of 62m of the bank, in addition to the legal interests tied to the date of approval of the 2006 financial statement, date on which the final withdrawal had been made. The decision was criticized to the extent that the frozen money was part of the assets of the bank, even if there had been no proper proof of the potential non-disclosure of the risks tied to the derivate schemes. In the case on hand, the Tribunal of Milan directed the confiscation of a quantum amounting to the sum of money which, according to ascertainment conducted by public prosecutor-appointed experts, calculations by the stock exchange watchdog (CONSOB) and by the Bank of Italy would have been been available through fraudulent misinformation. It also emerged that the bank had totally miscalculated in its 2006 financial statement (the year of the case prosecuted) the risks faced by credit apportioned and that such gross errors flowed from the high-risk derivative speculations. As it was proven that the risk, that had been concealed as normal forms of leasing, had severely distorted the 2006 financial statement, this allowed the bank to acquire such utility assets as the law required. Credit products were subsequently devalued as the bank had to write off a 62m outlay. The bank was however authorized to post profits higher than those she would have presumably registered, if the rectification had been conducted in congruent manner (on the basis of the knowledge available at the time of the approval of the financial statement).

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