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Newsletter T&P N°36 Eng
Newsletter T&P N°36 Eng
Newsletter T&P N°36 Eng
MAY 2010
NEWSLETTER
Trifir & Partners Law Firm
Editorial
Our newsletter is celebrating its 3rd anniversary and moving fast beyond.
This 36th issue is quite an achievement and is an encouragement to move on.
Our newsletter has relentlessly sought over the years to get ever better and to
enrich its contents with breaking information for its readers, both in the area of
employment law, civil law and insurance.
The firm itself is inspired by the same spirit and expands the range of its
services by creating new branches (the latest up and going office opened in
Trento), in a bid to stand ever closer to the exigencies of our clients and to
improve ever further the quality and fast-response approach to the professional
counsels delivered.
We would very much appreciate if our lawmakers displayed the same spirit.
The previous issue of our newsletter chronicled the tribulations of the new
employment regulations, plagued by amendments and counter-
amendements, as expounded in greater details on the blog JOBtalk. After
being approved by the lower House the text is now bieing examined by the
Senate and because, most probably, the text will be modified, it will have to
be re-examined by the Lower House for final approval and prior to being
promulgated by the president of the Republic and published in the Official
Gazatte. Our next issue will keep you informed on developments.
Going back to the current issue, the Focus feature is this time dedicated to
Labour Law, a reflection on the new rules applicable to CCTV
surveillance released by the Authority on privacy in a decision issued 8
April 2010.
The feature is followed by our Ruling of the Month, which examines a
CONTENTS case of dismissal for refusal to discharge one's remit. The Firm Cases
feature, meantime, reports on another dismissal case and on two rulings
regarding overtime.
EDITORIAL
The section on Civil Law examines a decision of the Court of Cassation
EMPLOYMENT LAW on unfair competition between companies and poaching employees.
Our Information Brief deals with the issue of stress risk, a concept
FOCUS 2 which as from August next will have to be duly assessed, in conformity and
compliance with the Omnibus Text on workplace safety (Legislative Decree
FIRM CASES 4 #81/2008).
Till next month, enjoy your reading.
CIVIL LAW, COMMERCIAL,
INSURANCE Stefano Beretta and the editorial staff: Stefano Trifir, Marina Tona,
Francesco Autelitano, Luca DArco, Teresa Cofano, Claudio Ponari,
FOCUS 6 Tommaso Targa and Diego Meucci
INFORMATION BRIEF 7
This is an abridged and edited version in English of Trifir & Partners
CONTACTS 9 newsletter. If you wish a full-length English translation, please contact
Stefano Trifir: stefano.trifiro@trifiro.it or newsletter@trifiro.it
TRIFIR & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT
NEWSLETTER T&P N36 YEAR IV
PAGE 2
Employment Law
Focus
By Stefano Trifir
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NEWSLETTER T&P N36 YEAR IV
PAGE 3
Such protection rules are to be observed both corporate communication and that show
within the premises and in other areas where employees may qualify as ex-tempore treatment
work performance is being carried out, such as for the scope of possible publication of articles or
construction sites and with regard to cameras papers and other forms of expressions of ideas.
installed on board vehicles destined for passenger
transport (art. 82, 85-87 Legislative Decree 30 To that extent, they are subject to the same laws
April 1992, #285). Under new code on passenger applicable to the press as provided in the Code
vehicles destined for rental with drivers and stop (art. 136ff), inclusive of the bounds set to the
stations (taxi cabs) who may not return to same respect of privacy to the right of information, and
cab rank position CCTV footage used to ascertain the observance of the code of deontology
possible violations may not be used for controls, applicable to the press and the right of workers to
even indirect, of the working activity of the protect their own image on legitimate grounds
workers (see point 4.4). and for their divulgation (art. 7, 4, letter a) of the
Code).
Failure to comply with the aforesaid carries
administrative sanctions under art. 162, 2-
ter of the Code. The use of CCTV surveillance
for the control of employees or to conduct
investigations on their opinions qualify as Link: www.garanteprivacy.it
offences under the terms of the Code. New decision with regard to CCTV
surveillance - April 8, 2010
Likewise, CCTV footage at the workplace to
illustrate activities and operations for the sole
scope of divulging them or for institutional or
TRIFIR & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT
NEWSLETTER T&P N36 YEAR IV
PAGE 4
Firm Cases
RULING OF THE MONTH
REFUSAL TO CARRY OUT NEW TASKS DISMISSAL FAIR WAY
(Tribunal of Busto Arsizio, 12 April 2010)
An employee was dismissed on fair cause because he had refused to discharge the task he
had bee assigned, claiming that he was not in duty bound to discharge said activity since the
company had not previously discharged its safety obligations and provided adequate training.
The worker complained that the employer had made innovations in the productive
organization of the enterprise by introducing new equipment without providing new training for
the personnel andthat he had, therefore, requested written instructions on the manners the
performance should be executed.
The employer, instead, contended that the worker had received the training necessary to carry
out the tasks from the moment he had been hired and that the introduction of new equipment
had been meant to upgrade the working conditions of personnel without altering in any
manner the technical nature of the performance requested.
The worker had countered by stating that his conduct was justified since his refusal to
perform the tasks was not unlawful. Lastly, the worker had also argued against the
disproportional nature of the decision to dismiss him on such ground.
The company explained the legitimacy of its comportment and the proportional nature of the
sanction particularly in view of the fact that the worker was a repeat offender and had
previously been sanctioned for a similar conduct barely a year before.
The Tribunal, following a thorough investigation, rejected the claim of the employee and
pointed out that:
the evidence submitted established that the nature of th tasks to be performed did not
require a specific form of training because the operation that the worker was to carry out
had in no way changed because of the introduction of innovations by the company and
which, moreover, significantly upgraded the working conditions of the workers, whereas the
obligation of new training would trigger solely where unlike in the case at issue workers
were to be subject to new risks to health;
the demand of the worker to receive written instructions on the mode to execute the tasks
were wholly groundless as the employer was held under no such duty;
the dismissal for fair cause adopted by the company was proportional to the offence in view
of the practical steps adopted by the worker to refuse performance of his tasks insofar as
he had reiterated to a number of his superiors his intention and had previously acted in
similar defiance and the decision was taken in consideration of the collective agreements
applicable and, specifically, sanctioned by dismissal fair way.
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NEWSLETTER T&P N36 YEAR IV
PAGE 5
OTHER RULINGS
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NEWSLETTER T&P N36 YEAR IV
PAGE 6
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NEWSLETTER T&P N36 YEAR IV
PAGE 7
Information Brief
By Vittorio Provera
As from August next, every employer (from small-to-large business) shall be in duty bound to
evaluate the stress risk correlated to work.
Indeed, art. 28 of the Omnibus Act on workplace safety (Legislative Decree 81/2008), in conformity to the
principles of the European Accord of 8 October 2004 and following modifications introduced by
Legislative Decree 106/2009, makes it compulsory to proceed to the evaluation of the stress risk of
correlated work in conformance with what are to be deemed the explicit indications provided by the
Permanent Consultative Commission. According to the above cited art. 28, in absence of such
indications (as things indeed do stand presently), the obligation starts nonetheless as from 1 August
2010. In such a situation, quite not infrequent in our country, the Technical and Interregional Co-ordinating
Committee on Workplace Prevention (an inter-regional agency) approved on March 25 its own true and
proper operative guidelines for the evaluation and the management of this issue. The paper examines,
among other things, the general aspects of risk valuation; the steps for the valuation and
management of risk and the criteria and methods of valuation; health monitoring and the role of
prevention and vigilance services.
This article does not have the space to fully illustrate the details of this complex report (which may be
found on the Internet anyway), but it is worth pointing out a few significant pieces of information drawn
from it and that help get a better picture of the problem as a whole. Indeed work-related stress (which is
inclusive of a number of phenomena like, for example, burnout, stressogenic pathology which affects
people who exercise support/remedial teaching when they find themselves no longer in a condition to
address adequately an excess in stress load generated by their profession, bullying, etc) currently
accounts for a percentage between 50% and 60% of lost working days every year.
Recent surveys conducted in the EU countries show that discontent at work and its attendant
pathologies rank second in the standing of health problems mentioned by workers and accounts for
about 22% of the workforce in Europe. In Italy work discontent affcts 27% of the workforce
(unfortunately, it should be borne in mind that in Italy stress-generating pathologies are all too often used
as pretexts to claim pecuniary compensation, which comportment causes prejudice to all the real cases
of work-related sufferings). In 2002, the European Union estimated that the economic cost of work-
related stress amounted to 20 billion. All specialisied agencies and research centers, governmental and
private, are agreed on the fact that this phenomenon is on the rise and worsening because of changes in
the forms of work and its organization. In particular, five areas have been identified as having stress-
generating characteristics:
theuse of new types of employment contracts (precarious no-term contracts) and insecurity about
permanence of employment contracts;
increase of the average age of workforce (with rising age incident on the concomitant tendency to
rigidity and lack of flexibility towards new forms of work);
heavy workloads also because of the introduction of new technology (in services and/or administrative
and banking systems, for instance, the Internet and email have helped create and multiply capabilities
and requests and have cut back response time) that put added pressure on employees;
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NEWSLETTER T&P N36 YEAR IV
PAGE 8
emotional tension caused by workplace The new rules and specific characteristics
aggressive and harassing conducts; attached to these forms of pathology call for a
system and a procedure for the evaluation of the
interference and imbalance between workaday
stress risks indicators indicative of such
life and private life (also here new technology
may have caused ever increasing interference of phenomena that are continuous in time and that
activity also during periods typically dedicated to register variations of the subjective and objective
private life). situations and conditions of the people. In other
words, and in line with the findings of the report of
Such factors make it incumbent on the the Technical Commission mentioned earlier,
companies, and in order to meet the regulations work-related stress risk may not stop short at a
set forth and to evaluate and address divers generic assessment of an absence of stress risk
issues, to examine case by case their corporate at a given time insofar as such risks may remain
organization following a procedure that at all times and anywhere just below the surface,
compounds all the factors that enable though clearly some work remits and tasks are
enterprises to adopt, among other things, a risk more susceptible to favour their emergence.
evaluation procedure that is dynamic rather tan
static.
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TRIFIR & PARTNERS LAW FIRM
Trifir & Partners has its head office in Milan and branch offices in
Rome, Genoa, Turin and Trento. Founded in the sixties by Mr.
Salvatore Trifir, it now numbers 80 professionals and staff-workers
coordinated by the Partners.
Trifir & Partners is the foremost firm in Employment Law and it also
The Firm advises major Italian and foreign corporations, and has a
network of qualified affiliates firms throughout Italy, Europe, Asia and
the United States. It also ensures on-spot assistance through its lawyers
everywhere in Italy and abroad.
Trifir & Partners boasts one of the most prestigious legal libraries in
paper and in multi-media. The firm is 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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