NEWSLETTER T&P N°40 YEAR IV

SEPTEMBER 2010

NEWSLETTER
Trifirò & Partners Law Firm

Editorial
This is the fortieth issue of our newsletter!
While still waiting for the fate of the changes in labour
conciliatory procedures, which were attached to the budget
and are now yet again in the game of shuttling back and forth
between Senate and House of Representatives, this time the
Focus of our Employment Law section examines an issue
that concerns all employers, private and governmental, namely
the sending by e-mail of certificates of malady.
A fresh circular from Social Security (7 September 2010)
set forth the steps of the procedure to be followed in
order to receive medical certificates from employees by
e-mail. The medical certificates are sent to Social Security
(INPS) by the appointed general practitioner and the employer
may thus get instant knowledge of the fact.
The section dedicated to “Firm Cases” reports two cases of
the month that deal with executives in relation to the
case of a dismissal, and also examines the relation
between civil decision and penal decision in connection
with the nature of the activity supplied to a principal
company.
The “Other Rulings” section covers cases spanning
disciplinary action to independent labour and economically
CONTENTS independent labour, anticipated bank statements, and the
economic consequences attached to the termination issued for
✦ EDITORIAL an action attributed to the agent.
✦ EMPLOYMENT LAW Stefano Beretta and the editorial staff: Stefano Trifirò,
Marina Tona, Francesco Autelitano, Luca D’Arco, Teresa
✦ FOCUS 2
Cofano, Claudio Ponari, Tommaso Targa and Diego Meucci
✦ FIRM CASES 4
This is an abridged and edited version in English of Trifirò &
✦ AGENCY 5 Partners newsletter. If you wish a full-length English
t r a n s l a t i o n , p l e a s e c o n t a c t S t e f a n o T r i fi r ò :
✦ CONTACTS 6
stefano.trifiro@trifiro.it or newsletter@trifiro.it

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 NEWSLETTER T&P N°40 YEAR IV PAGE 2

Employment Law
Focus
EMPLOYERS WILL BE ABLE TO RECEIVE BY CERTIFIED E-MAIL
PROCESS CERTIFICATES OF MALADY
By Diego Meucci
The news is contained in the Social Security #119, 7/09/10, which lays down the procedure to
be followed by the employer, whether private or state-appointed, so as to access the site of the
public agency and receive, by certified, the medical certificates of the employees.
This step is the final stone to the legislative edifice that started with the budget of 2005 (art.1, §149,
Act #311/2004), which had provided for the doctor appointed the obligation to transfer the
certificate of malady online to Social Security.
However, such obligation became operative only in 2010 thanks to the issuance of decree
26/2/2010 of the Ministry of Health part (jointly with the Ministry of Labour and Social Policies and
the Ministry of the Economy and Finance) and, above all, thanks to the Social Security circular
#60/2010 that provided the first practical instructions and the forms necessary to submit the request
of online accreditation for employers.
The new system should do away with mountains of paper and should speed up controls.
✦The appointed doctor has new the duty to communicate directly to Social Security by way of
Internet and the public system of connectivity (SAC), the certificate of malady of the employee
by releasing to the same a copy of the certificate of malady for the employer, free of diagnosis, and
a copy of the certificate of malady for the patient that contains the data of the diagnosis and/or the
nosology code.
Thanks to the changes introduced by the circular, the employer ma receive by e-mail the certificates
of malady, without having to verify everyday on the Social Security portal the possible issuance of
new medical certificates, shall have to communicate the apposite request at any territorial agency
using the same Certified Electronic Post (PEC) addresses to which all Internet documents received
by the doctor shall be duly sent.
The PEC addresses of the Social security territorial agencies are available on the Internet site of the
Institute www.inps.it in the section: INPS Sedi - search by list: certified post.
To be accepted, request must contain:
✦for Public Administration the identification of the person requesting, complete with fiscal code
of said person and progressive pension papers of their local agency;
✦for private companies identification to communicate and Social Security registration. In the
message, the company may ask, in express terms, to associate the PEC address sender plus
the Social Security registration of the self-same company.

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 NEWSLETTER T&P N°40 YEAR IV PAGE 3

The new procedure does not provide for the sending of scan copies of the “old” medical certificate
but, rather, for nothing more, or just about, than a text file that only contains the essential features of
the malady (for instance, particulars of the employer, starting data and prognosis of duration,
contact address, certifying doctor, etc).

Link: www.inps.it
Social Security Circular - 7 September 2010 #119 (PDF)

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 NEWSLETTER T&P N°40 YEAR IV PAGE 4

Firm Cases
RULING OF THE MONTH
CONTRACTING COMPANY EXECUTIVE ACTING FOR PRINCIPAL COMPANY -
ADDITIONAL EXECUTION OF TASKS - PAYROLL EMPLOYMENT CONTRACT AND
PRINCIPAL
(Court of Appeal of Milan, 5 July 2010)

The Court of Appeal of Milan, overturning the decision of the lower court, held that the exercise,
in itself, by a board executive of the contracting company, of supplying labour (also subsequent
to the matter under contract) solely with the principal company and in favour of said company,
is not sufficient - in absence of proven simulation of employment contract with the contracting
company - to qualify subordination of the dependent to the principal company. Indeed,
according to the Court, notwithstanding the accusation of payroll employment contract to the
sole contracting company, such subject matter may qualify as “secondment”; in particular, the
tasks going beyond the object of the contract work, discharged in favour of the sole principal
company, qualify squarely as duties assigned by the latter as illustrated in the mandate.
(Counsel: Vittorio Provera)

OTHER RULINGS
SPECIFIC DISCIPLINARY GRIEVANCE
(Court of Appeal of Rome, 20 April 2010)
Notwithstanding the principle that disputation has the scope of allowing the employee to defend itself, in the
decision at issue the Court of Appeal of Rome held that the specificity of the disputation exists where
necessary indications are submitted to ascertain the actual occurrence of the fact which lead the employer to
contend that reprehensible facts deserving of disciplinary action have occurred. Specificity excludes
admissibility of implicit disputation. In the case judged, the Court held as specific the contention whereby the
employee had been accused of doing a turnover different than the one agreed upon, having verified that the
hours of the turnover mentioned were the very hours of the turnover due.
(Counsel: Marina Olgiati)

INDEPENDENCE AND DEPENDENCE - WILL OF THE PARTIES

(Tribunal of Milan, 25 February 2010)
The Tribunal of Milan has reaffirmed that statements of the will of the parties, though shorn of value in absolute,
being duly verified in light of the effective tenor of the relationship insofar as they must be viewed as a prime
indicator where it comes to fitting the contours of the case under examination so typically with the subject
matter subject to controversy and the position of the interests at play proves compatible with such will. Bearing
that in mind, the court pointed out that, against a will freely expressed only a few months ago in two distinct
contractual accords, where the position of the supplier of work, a qualified and well remunerated, does not
strike as a weak party, the proof of the existence of a real simulation and, therefore, of a real development of
the facts other than as agreed upon should have been - according to the court - extremely rigorous, insofar as
it could not, in this case, ignore the will of the parties and of the qualification given by those to their work
relation.
(Counsel: Mario Cammarata)

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 NEWSLETTER T&P N°40 YEAR IV PAGE 5

Agency
By Luca Peron

AGENCY CONTRACT AND PAYROLL EMPLOYMENT: DISTINCT FEATURES

(Tribunal of Pinerolo, 21 May 2010)
In an action brought by an agent who had been terminated and who sought, inter alia, requalification of
his employment as permanent payroll contract, the Employment Tribunal of Pinerolo explained extensively
and cogently that not only was it possible for an agent to be subordinated to the directives of the
principal, but that art. 1746, civil code, also provided positively for the obligation to discharge the duties
entrusted him in conformity with the instructions received. Thus, as long as the controls conducted by the
principal are conducive to a greater efficiency and productivity of the performance carried out without
falling outside the exercise of one's proper hierarchical role, the relations remain within the bounds of the
contract of agency.
In the case at issue, and because the agent had omitted to provide any arguments with regards to the
respect of work hours, justifications of absences, requests of holidays and leaves of absence, nor had he
done so in other circumstances that made clear that he viewed the hierarchical power of the principal as
intrusive of his performance, and in consideration also of the express will of the contractual parties that
such qualification had never been in dispute, the Tribunal found that the employment relationship qualified
as contract of agency.
(Counsel: Luca Peron)

DISMISSAL FAIR WAY AND TERMINATION INDEMNITY

(Tribunal of Naples, 21 July 2010)
No claim of a right to indemnity for termination of agency relation stands in case of fair way dismissal,
regardless of the fact that such indemnity be calculated at law (art. 1751, civil code), or on the basis of
clauses provided for in the collective agreement.
(Counsel: Tommaso Targa)

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