NEWSLETTER T&P N34 YEAR IV

MARCH 2010

NEWSLETTER
Trifir & Partners Law Firm

Editorial
If February's newsletter was rich in contents, March's issue is richer still.
It is loaded with fresh news that seemingly were wafted in with the coming of the
Spring season.
Though not yet into force, pending signature by the President of the Republic and
its publication in the Official Gazette, the provisions attached to the budget and
which introduce new regulations for dismissals, fix-term contracts and, far
and above, provide for arbitration as alternative to action in front of an
employment tribunal, have been approved by the Senate. The new provisions are
examined in the Focus feature of the section dedicated to Employment Law.
The other significant change regards new provisions providing for the
resolution by way of mediation of civil and commercial disputes. Such
procedure, which came into force upon publication in the Official Gazette on March
4, 2010, creates, alongside the institutional avenue to remedy, a sort of "private"
avenue of justice. Partner Vittorio Provera, in his Information Brief, examines it
in detail. These two pieces of legislation will have a signal impact on
relationships between private persons and on relationships between private
persons and the judicial system. They have sparked not a few reactions and are
bound to cause others.
The Ruling of the Month regards a dismissal case that hinges on the use
of statements released spontaneously by an employee in the course of a
survey conducted by the employer. Don't miss out on that!
The Other Rulings section reports cases dealing with joint responsibility of
contractee and contractor, part-time work and with a posting proposal that ended
CONTENTS: up in dismissal.
Our Civil Law section examines a decision regarding guarantee upon first
EDITORIAL request and another decision on responsibility of air carriers for goods and
baggage, in relation to contracting companies in charge of handling
EMPLOYMENT LAW services.
Lastly, we wish to inform our readers that the annual meeting of the network of
FOCUS 2 European legal firms, of which our legal practice is one of the charter members,
will be held in Rome, in April this year and is organized jointly by our head office in
FIRM CASES 4
Milan and our branch in Rome. But, more on that next month.
CIVIL LAW, COMMERCIAL, Just a tip for you. Make a printout of your newsletter and get a chance to peruse it
INSURANCE at leisure on a train, flight or during a lunch break!

FIRM CASES 6 Stefano Beretta and the editorial staff: Stefano Trifir, Marina Tona,
Francesco Autelitano, Luca DArco, Teresa Cofano, Claudio Ponari,
INFORMATION BRIEF 6 Tommaso Targa and Diego Meucci

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

TRIFIR & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT
 NEWSLETTER T&P N34 YEAR IV PAG. 2

Employment Law
Focus
By Stefano Beretta and Stefano Trifir

THE NEW PROVISIONS

The Senate has approved, on March 3 2010, the provisions attached to the budget and which
introduce significant modifications to employment regulations, both in terms of procedure and
of substance.

The piece of legislation is yet to be signed by the President of the Republic (who may have second
thoughts about it) and to be published in the Official Gazette.

In any event, here is a preview of the modifications to come

As regards dismissal procedure, recourse against dismissal must be submitted (as it must today)
within 60 days from notice of layoff or from notification of reasons for layoff, where either is not
concurrent. However, the modification lies in the fact that recourse is ineffective where it is not
followed within the subsequent term of 180 days by the filing of such recourse or by the request for
an attempt at conciliation or arbitration. The same periods of time apply also to recourse against the
posting of an employee from one productive unit to another.

Another modification regards the implications of a declaration of illegitimacy of dismissal on a fix-

term employment contract. The Judge who finds in favour of the employee may condemn the employer
to damage compensation between a minimum of 2.5 months pay and a maximum of 12 months pay
based on last remuneration and regardless of the time spend (therefore, also superior to 12 months) since
termination of the relationship.

On the procedural side,

the new legislation drops after years of unremitting ineffectiveness the obligation to try out the avenue
of conciliation (meant to cut back on the amount of disputes but, in effect, only making legal proceedings
even longer), and makes it elective, as the parties shall decide, as an option alongside other modes of
conciliation and arbitration that enable parties to turn to conciliatory and arbitrative avenues
as alternatives to legal action. Each party appoints his own arbitrator and thereafter, and in
agreement, elect the President chosen between academics or lawyers registered at the Court of
Cassation. Absent an agreement on the arbitration President, the decision is devolved to the President of
the Tribunal with jurisdiction over the district where arbitration is to take place.

The text approved by the Senate lays down that the letter of employment and/or collective agreements
may expressly provide for arbitration procedure and that such arbitration clauses must be certified in
conformity with the procedure introduced earlier by the Biagi Act, in such manner that the interpretation of
the parties on the qualification of said shall have been ascertained and shall not be subject to further
dispute.

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 NEWSLETTER T&P N34 YEAR IV PAG. 3

The arbitration scheme is described here below

Board of Conciliation and Arbitration

Employer representative President employee representative

Claimant submits recourse to the Board

Defendant files memorandum within 30 days from notice of recourse
Claimant may file a replication inside the subsequent 10 days
Defendant may file a counter-replication inside the subsequent 10 days

Board

fixes hearing inside 30 days from last counter-replication

the controversy must be resolved at first hearing; a sole postponement of 10 days may be granted in the
event of evidence and for discussion

Award
To be issued inside 20 days from discussion
award is executive

The parties shall have one year to reach an agreement on how arbitration should be set up and
operate; in case of failure to reach such agreement the Executive shall provide.

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 NEWSLETTER T&P N34 YEAR IV PAG. 4

Firm Cases
RULING OF THE MONTH
SPONTANEOUS STATEMENT MADE BY AN EMPLOYEE DURING AN INVESTIGATION
CONDUCTED BY THE EMPLOYER QUALIFIES AS EXTRA-JUDICIAL CONFESSION AND
MAY BE USED BY THE EMPLOYER BOTH FOR THE PURPOSE OF GRIEVANCE
PROCEDURE AND AS PROOF OF NON-PERFORMANCE BY THE EMPLOYEE, EVEN
WHERE THE EMPLOYEE IS NOT ASSISTED BY COUNSEL
(Tribunal of Trieste, 11 January 2010)

An employee was dismissed fair way because, using his knowledge of the company
procurement procedure for the purchase of the raw materials needed by the employer to carry
out his business activity, he had deliberately forged the necessary authorizations for said
purchase by superscribing on previous authorizations photocopied for that purpose new
requests for procurement non-authorized and had thus purchased materials the company was
in no need for, which were then passed on to an accessory of the employee.
In exchange for such favour, the accomplice would compensate the employee in a variety of
modes. Upon discovering that materials were being purchased which he had no need for and
which, in addition, were nowhere to be found, the employer had conducted an investigation
by appointing a commission that had questioned the employee who had confessed his
responsibility.
Thereupon, the employer started a grievance and disciplinary action, which concluded to the
dismissal of the employee on just cause.
The latter, nonetheless, brought action against his employer, alleging that the statements he
had made at the investigation commission were not to be used against him insofar as they
had been made outside the grievance procedure and in the absence of a person of his
choosing to accompany him in his defence.
The company had made clear, instead, that the employee had volunteered the statements,
which he had never retracted, and that he had never claimed to having been coerced in any
shape or form.
In addition, the company had also made clear how in a civil procedure, as distinct from a
criminal procedure, the employee was not entitled to the support of a counsel when heard in
the course of a preliminary investigation, provided said, as was ascertained in the case at
hand, was conducted in conformity with the provisions of art. 7 of the Statute of Workers.
The Tribunal of Trieste found in favour of the company, pointing out that the statements of the
employee made to the investigation commission appointed by the employer had the value of
extra-judicial confession and that said statements could be used at will by the employer to
qualify his grievances. The Tribunal also pointed out that in an internal grievance procedure
the presence of a counsel was not necessary insofar as the inquest into the finding of the
facts was different from a criminal procedure, let alone in the course of a disciplinary
procedure where the presence of a counsel for the defence is not necessary.
On such grounds, the Tribunal held that the dismissal for just cause notified by the employer
was duly proportionate to the offence and also in view of the magnitude of the damage
incurred by the company.
(Counsels: Giorgio Molteni and Claudio Ponari)

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 NEWSLETTER T&P N34 YEAR IV PAG. 5

OTHER RULINGS
JOINT RESPONSIBILITY OF PRINCIPAL DOES NOT MOVE BEYOND REMUNERATION AND
CONTRIBUTION OBLIGATIONS
(Tribunal of Venice, 21 January 2010)
A worker who had worked under a fix-term contract within the ambit of a bid subject to a public tender had brought
action against his employer the contractor - and against the principal the contractee alleging the fix-term
employment contract was unlawful and asking consequently to be re-instated in his job with the contractor and
claiming against both contractor and contractee damage compensation in the form of retribution not drawn from the
date of termination of employment till the date of re-instatement in employment. The latter claim was based on the
assumption of a joint responsibility of the principal pursuant to art. 29, 2, Legislative Decree 276/03 and art. 1676,
civil code. The Tribunal rejected the claim of joint responsibility levelled against the principal and aimed at seeking
damage in the form of retribution not drawn from the date of termination of employment till the date of re-
instatement in employment, on the ground that there exists joint responsibility of the principal pursuant to art. 29,
Legislative Decree 276/03, solely for retribution and contribution due the employee of the contractor for labour
carried out within the ambit of the tender and not, therefore, for anything whatsoever due the employee under any
other title (dismissal or unlawful termination).
(Counsels: Stefano Beretta and Orazio Marano)

POSTING AND DISMISSAL

(Tribunal of Rome, 19 February 2010)
The consent over a long period (close to seven years) of an employee to a posting from a first employment location
to another does not authorize said employee to refuse a second posting from the second location to a third, save by
requesting in front of a court reassignment to the second location (and not the first) and by contending that in the
second location (and not the first) such reasons as justify posting at law were absent. The burden of proving such
reasons falls on the employer, save in the case at hand where no action was brought to specifically challenge said
reasons. Consent may indeed take the form of absence of action in front of a court for due actuation of any such
earlier ruling as might have found in favour of assignment to the first employment location. As a consequence,
refusal to accept posting to third location may be sanctioned by dismissal.
(Counsels: Valentina Ruzzenenti and Paolo Zucchinali)

PART-TIME BREACH OF FLEXIBILITY CLAUSE EMPLOYMENT CONTRACT VALIDITY

(Tribunal of Como, 1 February 2010)
A company hired a number of employees on part-time contracts of the vertical type containing flexibility clauses
agreed upon whereby the employer was granted the option to increase by one day the performance to be
undertaken by the employees. The latter, claiming the invalidity of such flexibility clauses absent collective
agreements regulating such clauses and, in any event, because total work hours were above the limit set for such
clauses, brought action to obtain transformation of their part-time contracts into full-time contracts by way of
declaring partially null the respective contracts of the single workers. The Tribunal of Como, however, found in favour
of the defendant company and rejected the claim of the employees. Firstly, the flexibility clauses were declared valid
even in absence of collective agreements regulating them. Such clauses, indeed, had been entered into pursuant to
art. 8, 2 ter of the Legislative Decree 61/00 - subsequently abrogated by Act #247/07 - that provided for individual
covenants, regardless of collective agreements. Moreover, the judge pointed out that under no circumstance
whatsoever the event of nullity of said clauses could trigger the partial nullity of the employment contract, insofar as
no such sanction was provided for at law. Neither can nullity be triggered by a number of work hours in excess of
the maximum covenanted between the parties, absent, in this case too, any provision at law that would provide for
the nullity of the individual covenant. In short, neither the alleged nullity of flexibility clauses nor the failure to conform
with work hours covenanted may trigger conversion of a part-time employment contract to full-time employment.
(Counsels: Vittorio Provera and Francesco Cristiano)

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 NEWSLETTER T&P N34 YEAR IV PAG. 6

Civil, Commercial and

Insurance Law
Firm Cases
AIR CARRIER RESPONSIBILITY FOR BAGGAGE AND GOODS
(Tribunal of Milan, 15 January 2010)
A handling service company working as contractor for the custody and delivery of goods and
baggage for an air carrier transporting passengers is estimated to work under a contract in favour
of third party. In case of dispute over lost or damaged baggage or goods the onus is therefore on
the handling company to prove that the loss or damage occurred at a stage prior or after its
obligation to retrieve/deliver such baggage or goods as custodian was to be duly discharged.
(Counsels: Vittorio Provera and Mario Gatti)

Information Brief
By Vittorio Provera

MEDIATION FOR THE CONCILIATION OF CIVIL AND COMMERCIAL

DISPUTES: AN OVERVIEW

As reported in last month's newsletter, the new piece of legislation on mediation for the conciliation of
civil and commercial disputes has been finally approved and published as Legislative Decree #28, 4
March 2010, and came into force on March 20.

Once fully implemented, that is, one year after publication, the new legislation makes mandatory the mediation
procedure contained in it as a prerequisite to submitting to a court of justice a number of civil and commercial
disputes.

They include controversies arising from condominiums, real rights, divisions, successions, inheritance,
family covenants, rents, free loans, lease of company, damage compensation for vehicular traffic or
water craft incidents, medical responsibility and libel in print, banking, financial and insurance policies.
All of these situations that fall under the new mediation procedure are characterized by the lasting
nature of the relationship.

As from its coming into force, professionals are already under duty to inform their clients, before being appointed by
them, of their right to adopt the mediation procedure and to benefit from the appurtenant fiscal relief, complete with
apposite statement underwritten by the client, failing which the contract between counsel and client would be open
to nullity (art. 4, 3, Legislative Decree 28/2010).

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 NEWSLETTER T&P N34 YEAR IV PAG. 7

Such mediation procedure should not be confused with arbitration. The role of the mediator is to assist the parties in
a potential controversy or conflict to facilitate such reciprocal comprehension and/or communication as shall be
instrumental to a negotiation to reach a compromise between contrasting interests and thus lead to a satisfactory
solution.

The mediator has ample discretionary powers inasmuch as he is not bound by specific procedural obligations (save
compliance with the Regulations that Bodies accredited by and registered at the Ministry shall issue to regulate their
activity). However, the obligation remains to set forth the mediation procedure inside a period of four months, after
the expiration of which and absent any agreement - the respective parties are free to take legal action to seek
remedy.

The mediator himself may submit a proposal of solution upon joint request from the parties to do so. Such proposed
solution must be submitted to the parties in writing and, in the event of acceptance by the parties, such acceptance
must also be expressed in writing.

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 NEWSLETTER T&P N34 YEAR IV PAG. 8

Events
MEETING
PLURIJUS 2010
Rome, 16 - 17 April 2010

This year the meeting of the European network of legal

firms Plurijus, is organised by the Rome branch of our
Firm and will take place in Rome from 16 - 17 April
2010.

Trifir and Partners were among the founding firms of

the network that groups some of the foremost legal
firms in Europe.

Next months newsletter will report on the proceedings of the

meeting.

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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

Design: Emanuela Zocchi

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

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.

DEPARTMENTS:
Employment, Agency, Security and Trade-Union
Trading, Industrial, Bankruptcy
Insurance, Banking, Company, Contract
Administrative
Family, Succession

CORRESPONDING FIRMS:
Belgium, Denmark, France, Germany, Ireland, Luxembourg, Netherlands, Portugal, Spain, Sweden, UK,
China, United Arab Emirates

Milan
20122, Via S. Barnaba 32
Tel.: + 39 02 55 00 11 Fax.: + 39 02 54 60 391; + 39 02 55 185 052; + 39 02 55 013 295

Rome
00192, Lungotevere Michelangelo 9
Tel.: + 39 06 32 04 744 Fax.: + 39 06 36 000 362; + 39 06 32 12 849

Genoa
16121, Piazza della Vittoria 12
Tel.: + 39 010 58 01 39; + 39 010 56 22 62 Fax.: + 39 010 58 28 71

Turin
10121, Via Raimondo Montecuccoli 9
Tel.: + 39 011 52 10 266 Fax.: + 39 011 51 19 137

Trento
38122, Via Galileo Galilei 24
Tel.: + 39 0461 26 06 37 Fax.: + 39 0461 26 44 41

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