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Snacks: Digestible Weekly Labour News – Issue 1146 July 2023

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"The power to instruct and control can be managed through digital systems totally automated."

YouTube video valid evidence for disciplinary dismissal
Violent behaviour of an employee filmed and posted on YouTube is just cause for dismissal. A video posted on YouTube is sufficient evidence of an employee’s unlawful conduct and justifies their dismissal by their employer. In this specific case, a public bus driver had an altercation with a car driver. At one point the bus driver veered towards the edge of the road where the driver of the car was parked, causing him to fall to the ground. The car driver got back up and assaulted the bus driver. This scene was filmed by an onlooker who posted the video on YouTube. The Supreme Court held that the footage was evidence of the driver’s violent behaviour and confirmed the validity of the dismissal for just cause.
Supreme Court 28/06/2023 no. 18518

Unrestricted monitoring of company e-mail breaches EU Data Protection Regulation
Unrestricted monitoring of an executive’s company e-mail constitutes an unjustified breach of the basic rights of dignity and respect protected not only by the rules of the Workers’ Charter, but also by the rules on the processing of personal data. Retrospective e-mail monitoring may be carried out if there is reasonable suspicion that the executive has committed unlawful acts with respect to the company’s assets. However, the employer must still ensure that the retrospective monitoring complies with the personal data processing rules set out in Regulation (EU) 2016/679 and the Privacy Code. The legitimacy of e-mail monitoring presupposes, among other things, that the employer has provided the manager with prior information on the processing (tools used, purposes, retention period, rights of the data subject, etc.) and has, moreover, carried out the processing in compliance with the principles of minimisation and proportionality. Unrestricted monitoring of an employee’s mail, even if supported by a reasonable suspicion of wrongdoing, is in breach of these provisions and the evidence collected cannot be used to justify an executive’s dismissal.
Supreme Court 26/06/2023 no. 18168

Election and appointment of RoES in multi-location companies
In multi-location companies, with several production units throughout Italy, the representatives of employee safety (“RoES”) must be appointed or elected in each production unit that constitutes a plant, production unit or a premises for the provision of services, and has financial and technical autonomy. Legislative Decree no. 81/2008 (the Safety Consolidation Act) expressly provides that a minimum number of RoES must be appointed or elected in each company or production unit based on the number of employees.  Collective agreements regulate the number of RoES, the procedures for appointing or electing them, and the employer’s obligation to pay them and provide them with the equipment required to carry out their duties.
Ministry of Labour, Response to request 22/06/2023 no. 4

Not disclosing information on automated decision-making system is anti-union conduct
A company that uses fully automated monitoring and decision-making systems and fails to provide requested information to trade unions about the IT system in place is liable for anti-union conduct under Article 28 of the Workers’ Charter. Companies that use such systems, where human intervention is excluded due to the process being entirely automated,  are obliged to share the information provided for by Article 1-bis of Legislative Decree no. 152/1997, as introduced by the Transparency Decree (Article 4 of Legislative Decree no. 104/2022) and subsequently amended by the Employment Decree (Article 26 of Legislative Decree no. 48/2023), with the internal trade union representation (RSA/RSU) or trade union associations that request it. Refusal to comply compromises the exercise of trade union activity by employees’ representatives, to all intents and purposes constituting anti-union conduct. However, data covered by industrial or commercial secrecy, including the source codes and mathematical formulas used to create the platform, are excluded.
Court of Palermo, Judge Marino, 20/06/2023

Demoted executive and the protection regime against unlawful dismissal
“Pseudo-executives” are employees that only fall within the executive classification category on a formal basis. They do not perform duties that fall within the role of an executive (decision-making autonomy, giving direction to management etc.). “Pseudo-executives” do not fall under the unfettered dismissal regime that characterises the executive employment relationship and in the event of unlawful dismissal, the protections provided by Article 18 of the Workers’ Charter apply to them. The same principle does not apply, however, to an executive who initially carried out duties as an executive and was later demoted to “pseudo-executive”. In such a case, the full employment protection regime (which includes reinstatement) is excluded and the demoted executive, faced with an unlawful dismissal, is only entitled to the compensation provided for by the CCNL applied to the employment relationship.
Supreme Court 08/06/2023 no. 16208

Resignation during domestic worker’s maternity leave and entitlement to NASPI unemployment benefit
NASPI unemployment benefit is due to domestic workers who resign during maternity leave. The national system does not expressly grant the right to unemployment benefit in the case of resignation by a domestic worker during maternity leave. However, access to the NASPI unemployment benefit must be granted to avoid discrimination against mothers employed in different sectors. Moreover, the right to the NASPI unemployment benefit arises directly from the CCNL for Domestic Workers which prohibits dismissal until the child is three months old. The Consolidation Act on Maternity (Legislative Decree no. 151/2001) also contains this provision and links the prohibition on dismissal during the protected period with the right to unemployment benefit in the event of resignation during the same period. Therefore, it follows that domestic workers are also entitled to the NASPI unemployment benefit if they resign during the compulsory maternity period.
Court of Lodi, Judge Manfredi, 30/05/2023

National rule tying state aid to sectoral CCNL incompatible with EU law
Rules of Italian law that require a foreign operator to apply the pay conditions set out in the national collective bargaining agreement (“CCNL”) concluded by the most representative employers’ and trade union associations, in order to benefit from compensation for lockdown during the pandemic, are incompatible with EU law. State aid also applies if the foreign operator does not apply the CCNL considered to be the “leader” in the sector, as the rule requiring the application of the minimum wage of the sector’s CCNL constitutes a discriminatory restriction of the freedom to provide services. On the basis of this principle, the decision of the European Commission that had rejected the appeal of a foreign air carrier against the Italian regulations limiting the recognition of state aid during the pandemic to companies that applied the CCNL comparatively more representative of the air sector was annulled.
European Union Court 24/05/2023 (Case T-268/21)

Recipient’s failure to collect registered letter from Labour Inspectorate insufficient to impose criminal sanction
Service by the Labour Inspectorate of a registered letter through the recipient’s failure to collect is not sufficient for the imposition of the sanction for failure to reply. The letter concerned sought information about an employer’s compliance with personnel management obligations (Article 4, Law no. 628/1961). The sanction presupposes that the employer has actually become aware of the content of the registered letter, and failure to collect does not provide proof of actual sight of the document. Actual knowledge of the request for information must be considered necessary because it is the direct source of the obligation sanctioned by criminal law.
Supreme Court, criminal section, 12/04/2023 no. 15237