NEWSLETTER T&P N°44 YEAR V

FEBRUARY 2011

NEWSLETTER
Trifirò & Partners Law Firm

Editorial
January's newsletter featured prominently the breaking news on an ordinance
whereby the Court of Cassation left it to the Constitutional Court to decide
whether art. 32, §5 and 6 of the new provisions on employment law,
pertaining to the liquidation of damages (from 2.5 to 12 monthly payments)
in cases regarding the legitimacy of fix-term contracts, was constitutional.
The issue is being further developed in the Focus section of the Employment
Law feature of the present issue of the newsletter.
Some other new employment law provisions (for instance, those dealing
with conciliation and arbitration) have already raised many problems of
interpretation, which does not induce us to think the new framework is off to a
particularly good start. Let us add that the decree which is being debated by
the Lower House these days and which extends deadlines for innumerable
cases, also impinges on subject matters dealt by the new framework, in
particular with regard to statute of limitation to impugn fix-term contracts
underwritten prior to the coming into force of the new law, which is expected to
be pushed back for 2011.
The next issues of our newsletter will keep you informed of the developments.
Employment cases examined this month include the “Ruling of the Month”,
dedicated to an interesting case of mobbing that was entrusted to our firm
and attracted the attention of both the press and television. The sentence
deals with a claim filed for an outstanding compensation for damage, arguing
an alleged bullying comportment that was denied by the Court. The “Other
Rulings” section examines decisions on self-employment and salaried
contract, dismissal and workplace bullying, precedence prerogative in part-
CONTENTS time work, damage compensation as a result of occupational malady.
Our Civil Law section features a sentence in our favour in a claim for
✦ EDITORIAL damage compensation for holidays missed owing to health problems.
The renunciation did not carry damage compensation for the travel agency
✦ EMPLOYMENT LAW because, as held by the Tribunal of Modena, the burden falls on the claimant to
personally take the necessary steps insurance requires by working things out
✦ FOCUS 2 with them. Other disputes regarding “Insurance” are also being examined in
the section.
✦ FIRM CASES 3
Our “Information Brief”, this time, deals with misleading advertising and
✦ CIVIL LAW, COMMERCIAL, analyzes a recent decision of the European Court of Justice which had to rule
INSURANCE between two big retail chains. We hope you enjoy it!

✦ FOCUS 6 Stefano Beretta and the editorial staff: Stefano Trifirò, Marina Tona,
Francesco Autelitano, Luca D’Arco, Teresa Cofano, Claudio Ponari,
✦ INSURANCE 7 Tommaso Targa and Diego Meucci

✦ INFORMATION BRIEF 8 This is an abridged and edited version in English of Trifirò & Partners
newsletter. If you wish a full-length English translation, please contact
✦ CONTACTS 9 Stefano Trifirò: stefano.trifiro@trifiro.it or newsletter@trifiro.it

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 NEWSLETTER T&P N°44 YEAR V PAGE 2

Employment Law
Focus
FIX-TERM CONTRACTS AND THE NEW EMPLOYMENT LAW
FRAMEWORK
By Anna Maria Corna
As reported in our previous newsletter, the Court of Cassation has already intervened on the
issue raised by art. 32 of Act #183/2010, by issuing an interlocutory ordinance on 28 January
2011 which, on the one hand, provides an interpretation of the clauses at §5 and 7, regarding
fix-term contracts and, on the other hand, hints at a potential unconstitutionality of §5 and 6,
which the Constitutional Court will have to resolve one way or another.
In particular, the Court of Cassation has affirmed that §5 of art. 32, where it lays down that “in cases
of conversion of the contract to permanent employment contract, the Judge condemns the
employer to damage compensation by establishing an all-inclusive indemnity inside a range from a
minimum of 2.5 to a maximum of 12 monthly wages”, based on criteria pursuant to Act #604/1966
(instituting mandatory stability in case of dismissal) which must be interpreted in the sense that said
indemnity is inclusive of any type of damage whatsoever and, as such, exhausts compensation
protection rights. Also, according to the Court of Cassation, §7 of art. 32, where it lays down that
the new employment provisions “apply to all legal proceedings, inclusive of those pending at the
date the present law takes effect”, must be interpreted in the sense that the law takes effect at
any phase of a legal proceeding, and therefore also on appeal and in an instance of
legitimacy. However, the Court of Cassation held that the provision of an all-inclusive indemnity
(also reducible by half, in case of accord with the unions, the which being known as stabilisation,
and as provided for under §6) would restrict the right of the employee to effective damage
compensation incurred by the employee (previously recognized with the concept of default on
payment concurrent to the on-going offer of task performance and until reinstatement of the work
relationship, subtracted compensation resulting from dismissal), placing on the employee the
detrimental length of the legal proceeding, in violation of art. 3, §2, 4, 24 and 111 of the Constitution.
The Court of Cassation also held that the new employment provisions were in contrast with art. 117,
§1 of the Constitution, insofar as legislative power interfered with the administration of justice.
Court practice has already drawn out the contours of art. 32. More to the point, the new provisions
have been applied in first instance by nearly all the Tribunal, while some Courts of Appeal (at Milan
and some sections at Rome) and decisions made clear that reference to the provisions as at art. 421
of the code of civil procedure (reported in the last paragraph of art. 7, in order to enable the parties
to integrate the request) prevented its being operative on instance. Contrary wise, other Courts
(Perugia, Bari, Ancona and Brescia) applied the new provision also at the appeal stage. It should be
also noted that, in spite of the above mentioned ordinance of the Court of Cassation, the standards
laid down at art. 32 continue to be applied to most cases under way in first instance, while some
Courts of Appeal, with a view to avoid future contrasts, have decided to put off their decisions until
the ruling of the Constitutional Court.

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 NEWSLETTER T&P N°44 YEAR V PAGE 3

Firm Cases
RULING OF THE MONTH
MOBBING DAMAGE COMPENSATION - EXCLUSION
(Court of Appeal of Genoa, 16 December 2010)

The Court of Appeal of Genoa, on certiorari after the striking down of the sentence in second
instance, rejected on the merits an outstanding claim for damage compensation for bullying,
sexual harassment and downgrading, filed by a female employee against a company
counselled by our firm.

The peculiarity of the case lies in the fact that the company had won the case in the lower
and higher courts, only to see their rulings quashed by the Court of Cassation, with a
decision that had caused a public stir and had sent on certiorari the sentence to the Court
of Appeal of Turin, questioning the fact that the latter had, among other things, affirmed
that the charge of bullying requires as test a degree of continuity in time (at least six
months) from the alleged misconduct.

After a joint and thorough investigation of the inquest of the lower instance, the Court in Genoa
affirmed that:
✦theright to one's own office in a company organized as open space is reserved to senior
executives, and the Court of Cassation had erroneously assumed that the claimant enjoyed
such title, much less asserted in the proceedings;
✦inter-personal conflicts at the workplace, acute as they may be, do not qualify as bullying;
✦the appropriation or not of human resources for support, change in remit, location of the work
station and development or discontinuance of a work project are left at the organizational
discretion of the employer, absent evidence of a persecutory intent, arbitrary conduct and
freeze out prompted by personal animosity;
✦offensive
phrases addressed to the superior (who, however, requested, public apologies) are
not to be ascribed to the employer, absent causal connection with an over-zealous
observance of work standards;
✦the timely response of the company to the grievances of the claimant qualifies as a
comportment that exonerates the employer from any responsibility, also for removing the
heavy-handed immediate superior;
✦sexual harassment, that played a major role at the start of the legal action, had proved
undocumented nor had it contributed specifically as a motive to appeal, even though they
had attracted the attention of the mainstream newspapers and had seen TV dedicated a
report favourable to the claimant.

(Counsels: Giacinto Favalli and Paolo Zucchinali)

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 NEWSLETTER T&P N°44 YEAR V PAGE 4

OTHER RULINGS
SELF-EMPLOYMENT AND PAYROLL EMPLOYMENT
(Court of Appeal of Milan, 28 January 2011)
The Court of Appeal of Milan confirmed the sentence of the Tribunal of Milan on a claim of a consultant of
a bankrupt company, who alleged that his job qualified as payroll employment.
The Court of Milan thus held that:
a) in order to prove salaried employment, the consultant should have proved his performance was
subjected to the organizational, supervisory or disciplinary power of the employer;
b) the principal expressed at no point in time his intention to transform the job on contract into a payroll
job;
c) the mode and manners the job of the consultant was being carried out were held as more congruent
with the features of a contract work than with those of a payroll job.
(Counsels: Stefano Trifirò and Mariapaola Rovetta)

ON-GOING AND REPEATED NON-COOPERATION AND OBSTRUCTIVE

CONDUCT BY EMPLOYEE QUALIFY AS DISMISSAL FOR JUST CAUSE -
CONFLICTS WITH SUPERIORS AND CO-WORKERS DO NOT QUALIFY AS
MOBBING
(Tribunal of Novara, 14 September 2010 / 24 January 2011)
An employee of a company impugned a dismissal for just cause directed him for continuing and repeated
non-cooperation and obstructing conduct towards the company (refusing to receive letters of grievances
and the application of disciplinary sanctions, non-observance of sanctions issued, improper management
of officer work, as well as continuing and unjustified challenge of any and every corporate decision,
alleging bullying at the workplace). The Tribunal threw out the claim and pointed out that:
✦dismissal for just cause is legitimate in presence of “acts of insubordination and violation of the most
elementary duties of propriety and good faith from the employee”, because their “systematic reiteration
amount to a blatantly wrongful and steady violation of the obligation vested in him to cooperate with
diligence”;
✦workplace bullying only qualifies as such in presence of “vexatious conducts, reiterated, continuous,
individual and/or collective” lasting “at least six months” and aimed at “annihilate the personality of the
employee”, and, therefore, should not be confused with “natural” contrasts with superior and co-
workers, since “typically, organizational dynamics and inter-personal frictions occur at every workplace”.
(Counsels: Stefano Beretta and Tiziano Feriani)

RIGHT OF PREFERENCE IN CASE OF NEW RECRUITS OF PERSONNEL FOR

FULL-TIME JOBS APPLIES ONLY TO NEWLY HIRED PERSONNEL ON FULL-
TIME JOBS AND PERMANENT CONTRACT EMPLOYMENT AND AT
EMPLOYER'S DIRECTION
(Court of Appeal of Brescia, 19 October 2010)
A female employee working part-time brought action against her employer claiming that her contract
should be converted into a permanent employment contract. She invoked the provisions whereby, on
request, part-time workers that have already been full time on the job may enjoy the prerogative of first
choice over future new recruits, and may be hired on permanent part-time employment contracts,
provided they have made such a request and have the requisites necessary and occupy a position
featuring the identical or equivalent job contents.

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 NEWSLETTER T&P N°44 YEAR V PAGE 5

The employer challenged the alleged violation of the preference clause, arguing, inter alia, the fact that no
new recruit had been taken on, as the prosecution on the job of a person who had been hired for
apprenticeship trial did not qualify as fresh recruitment.
Overturning the sentence of the lower court, which had supported the claimant's version, the Court of
Appeal of Brescia held that said right of preference only appeared where new recruits were expected, as
neither the letter of the law nor its coherence with the rationale of the provision itself, authorised the
extension of such right outside the case of new recruits. On such grounds, the judges affirmed that the
right of preference for the transformation to full time of a job contract is not of the competence of the
part-time worker, neither in the case of an apprenticeship nor in the case of the conversion of a training
employment into a permanent employment contract, being the two latter mere scenarios bearing no
continuity with working relationships already established and, as such, inadequate to qualify as new
recruits with full-time employment contracts.
(Counsel: Claudio Ponari)

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 NEWSLETTER T&P N°44 YEAR V PAGE 6

Civil, Commercial and

Insurance Law
Focus
CLIENT NOT ALWAYS ENTITLED TO DAMAGE COMPENSATION
FOR MISSED VACATION ORGANIZED BY TRAVEL AGENCY
(Tribunal of Modena, sentence #4159/2010 )
By Francesco Autelitano and Mario Gatti

John Doe had booked a vacation abroad at his regular travel agency and had
subsequently bee forced to cancel it due to health problems.

Despite the fact that the vacation contract underwritten provided for insurance in case of
malady only upon timely notice of said cancellation by the client directly to the insurance
company, said John Doe failed to address the medical certificates and records and to
report the supervening impossibility to the insurance and merely informed the travel agency
of the cancellation.

Subsequently, and because the insurance refused the indemnification, the client of the
travel agency held the latter responsible for the fact and brought action against it, claiming
damages and for expenses vacation not made. In particular, he alleged that, among the
contractual obligations of the agency, there also existed for the agency the obligation – in
case of accident – to get in touch with the insurance for the management of said accident
in his interest.
In the event, the agency challenged the claim and won the case, arguing that it had not
taken any such obligation whatsoever, has amply proven by the investigation.

In other words, it is the onus of a tourist who is forced to renounce his vacation to
personally follow the insurance procedure and to work alongside the insurance
company to benefit from coverage, or to prove beyond doubt that the travel agency
undertook the obligation to carry out such duty, otherwise the tourist risks losing his
vacation, the indemnity and the insurance “premium” disbursed in vain.

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 NEWSLETTER T&P N°44 YEAR V PAGE 7

Insurance
By Bonaventura Minutolo and Teresa Cofano

An agent working for a company was granted by the Tribunal of Milan an

executory injunction against the Social Security Fund for Agents, regarding
the payment of the contributions accrued at his individual account at the
fund.

The fund took action against the injunction, arguing the application to the
case at issue of art. 18 of the Regulations for Social Security Fund for Agents
whereby:

“in case of revocation of the mandate for just cause and in cases of
termination of the contract for one of the reasons listed under art. 19 of the
national accords 10 October 1951, the monies available and the activities of
the individual account however invested may not be liquidated or handed
SETTLEMENT OF
over before debits and credits with the company have been settled. Where
DEBIT WITH
the activities of the account are invested in a life insurance or in a contract of
PRINCIPAL AND capitalization, the fund proceeds with the setoff and the corresponding
RIGHT OF AGENT amount is added to the ready money of the individual account”.
TO RECOVER
The work relationship between the agent and the company, indeed, had been
CREDIT FROM terminated by the latter, following an inspection which had uncovered heavy
SOCIAL SECURITY debits, which the agent had not provided to settle, neither in his capacity as
FUND FOR agent nor subsequently.
AGENTS The agent claimed that the provisions of the regulations of 1951 had been
superseded bt the national accord of 2003 and the fund replied that the
parties to the national bargain had expressly that the exclusion of art. 18
concerned exclusively persons affiliated to a number of special social security
funds to which the agent was not a member of.

The Tribunal held that the fund was right and revoked the interim relief
decision, declaring that the ready cash on the account of the agent at the
fund could bot be liquidated prior to the final settlement of the debit towards
his former principal.

(Tribunal of Milan, Labour section, sentence #620/2011)

(Counsels: Bonaventura Minutolo and Teresa Cofano)

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 NEWSLETTER T&P N°44 YEAR V PAGE 8

Information brief
By Vittorio Provera

MISLEADING ADVERTISEMENT

A judgement handed down by the European Union Court of Justice on 18 November 2010,
ruled that comparative advertising on food is lawful provided it is not misleading. The conflict
concerns an advertisement published in a French newspaper advertising the products of one
retail chain.

The other retail chain had brought action, alleging infringement of the French consumer code and of the
EU directive on misleading and comparative advertising. The EU legislation aims to stimulate competition
between suppliers in the interest of consumers by enabling competitors to highlight objectively the
advantages of comparable products and simultaneously banning practices that can lead to distortions of
competition, be detrimental to competitors or have an adverse impact on consumer choice.

The claimant argued that the advertisement does not respect consumers’ interests and leads them
into error or even deceives them, not only owing to its presentation but also because it proclaimed
that the chain selected the products compared meticulously after aligning its prices on those of its
competitor. The products were not comparable, due to qualitative and quantitative differences.

After examining these arguments, the court held that the comparison of food products complied with the
directive on misleading and comparative advertising, which requires that the products compared must
meet the same needs or have the same objective, ie that they must be sufficiently interchangeable. It left
the decision on the misleading nature of the advertisement in the hands of the Bourges trade court.
The court added that the advertisement could be considered misleading within the meaning of the
directive if it is found to create the mistaken belief that the selection of goods is representative of the
general level of the supermarket’s prices or if it denies differences between the foodstuffs compared.

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