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JUNE 2011
NEWSLETTER
Trir & Partners Law Firm
Editorial
A conference on Mediation, organized by our rm in co-operation with the Lombardy EmployersAssociation (ALDAI), was held on June 16. As it appears, this was the rst time nationwide that a conference brought together lawyers, entrepreneurs and company executives to examine and discuss one of the major issues of the moment. The conference was chaired by Attorney-at-law Salvatore Trir and featured speakers of renown such as prof. Ugo Carnevali, Chair Professor of private institutional law at the University degli Studi of Milan and Judge Camillo Filadoro, President of Section at the Court of Cassation. The discussion that followed the presentation involved many participants and proved notably enriching. You'll nd more on this in the Event section and we develop further the issue in the Focus article of the Civil Law section by examining the experience of other countries, while still waitingfor the decision of the Constitutional Court. Another important issue broached upon in our newsletter is the Focus article of our Employment Law section and regards a recent circular about malady certicates. It provides the rst practical steps to be followed to proceed with such procedures via computer. As from 13 September 2011, indeed, paper will become out-of-date and the employees shall no longer have the obligation to send their certicates to their own employer, though the obligation shall remain, as provided by collective agreements, to give due notice in case of leave of absence for malady.
CONTENTS
The Firm Cases section reports a number of interesting cases, while the Ruling of the Month regards the characteristics of the qualication of executive in a modern construction of the role of executive. The Other Rulings section feature standard and recurrent issues, such as workplace bullying damage compensation, dismissal of executive managers, status as journalist. Enjoy your reading till next month. Stefano Beretta and the editorial staff: Stefano Trir, Marina Tona, Francesco Autelitano, Luca DArco, Teresa Cofano, Claudio Ponari, Tommaso Targa and Diego Meucci This is an abridged and edited version in English of Trir & Partners newsletter. If you wish a full-length English translation, please contact Stefano Trir: stefano.triro@triro.it or newsletter@triro.it
FOCUS 5 CONTACTS 7
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provide information to employees (in both public and private sectors) in the pros and cons of the new procedure; illustrate the steps to be duly followed by the employer (in both public and private sectors) to ensure proper receipt of malady certicates sent via computer.
On the rst point, the circular claries that in the course of the medical visit the employee must submit to his doctor his social security ID containing his tax code and may also have to communicate the address where he may be found, if different from his place of domicile or residence. The employee requests, in his turn, to his doctor the protocol identication number of the certicate sent via computer or, alternatively, he/she may ask the doctor to send a copy of said documents in pdf format to his own email address. The sending by the doctor via computer complies with the obligation for the employee to deliver the certicate of malady, or to mail it be registered letter with notice of receipt to his own employer inside two working days consecutive of the onset of the malady.
TRIFIR & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO
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The employee remains under the obligation to duly notify his employer of his leave of absence and of his address, where different from his domicile or place of residence, for the purpose of medical and scal control. Likewise, the employee working in the private sector must submit, when expressly requested by his employer, the protocol identication number of the malady certicate he was given by his doctor. Social security immediately provides the employee with a statement of malady reecting the certicate received. Furthermore, the employee may directly access and also print out his own statement of malady by going on the social security website (www.inps.it) and by inserting his own tax code and the protocol identication number given to him by his doctor. Needless to say, in case the computer network were to break down, the doctor would fall back on paper to draw up a statement of malady to be presented to the employer. On the second point, we deem it necessary to point out that the employer shall have to see the statement of malady of his employee using exclusively the channels provided by social security which, put briey, are as follows: 1. direct access to the Social Security (INPS) system using apposite credentials made available by INPS 2. by emailing to the certied email address communicated by the employer It is also worth reminding that private employers may use services provided by social security also through their own intermediaries, as identied under Act #12/1979.
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Firm Cases
RULING OF THE MONTH
QUALIFYING STATUS AS TOP EXECUTIVE
(Tribunal of Milan, 8 June 2011)
A recent ruling of the Tribunal of Milan handed down a decision on an issue that is a classic of judge-made law, namely, what are the essential requisites that make up the qualication of top executive. The decision does depart slightly, though, from standard assumptions, in a clear attempt at redening the standard features of this position that would be more suitable to current corporate organizational structures. The case stems form the dismissal with cause of a top executive with the status of Area Manager, for breach of internal corporate procedures with regards to volume sales made above a certain value. The manager brought action against the dismissal claiming there was no just cause and contending he had a right to be reintegrated pursuant to art. 18 of the Statute of Workers. He claimed he had never had independent and discretionary powers, nor powers to take singly decisions of sales in the name and on behalf of the company, so much so that he had to be viewed, with regards to the bounds of the legislation applicable to dismissals, more as a pseudo-executive, that is, as a mere employee in point of fact. The Tribunal of Milan rejected the claim and afrmed that it was time to shed the the notion of top executive of its restrictive import, designed to qualify as top executive only the person who stands within the organizational chart as the alter ego of the entrepreneur. As modern enterprises, instead, are characterized by a plurality of managerial gures spreading across top and lower-ranking management, the status of top executive should not apply solely to those who participate in strategic corporate decision making, but also to those whose tasks are to actuate such decisions by setting in motion the instruments designed to that effect, within the ambit of a decentralized cloud of decision-making powers. The Milan judge afrmed the genuine nature of the attributes of the qualication as top executive to the petitioner under the status of Area Manager, with full commercial responsibility for a geographical area, inside which he was expected to deliver good performance and also to take practical steps to achieve the company's commercial decisions and objectives, inclusive of managerial and co-ordination tasks of the sales force network, with independent powers of the purse within the bounds of the budget appropriated, and with independent decision-making powers within the bounds dened by the company's in-house procedures, the whole process operating with direct reporting solely to the Managing Director and in co-ordinated relation with the other executives, and not under their command. In the wake of a recent ruling of the Court of Cassation (2/9/2010, #18998), the sentence reviewed here also ruled on the burden of proof, asserting that the principle whereby the onus falls on the employer to prove the real belonging of the employee to the category of top executive does not apply where the ascertainment of the top executive status or not of the remit discharged is in the specic interest of the worker. In case of dismissal of employees formally categorized as executives the onus is on the worker, who intends to benet from the more favourable restrictions applying to the layoff of non-executive personnel, to prove that, with regards to the tasks effectively performed, the status of top executive does not apply to him. (Counsel: Giampaolo Tagliagambe)
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OTHER RULINGS
DISCIPLINARY SANCTION LEGITIMATE FOR WORKER WHO STRAYS AWAY FROM WORKSTATION TO GO TO THE CANTEEN AGAINST EMPLOYER'S DIRECTIONS
(Court of Appeal of Milan, 31 January 2011) An employee took action against the company of his employer, seeking nullication and subsequent revocation of a series of disciplinary sanctions passed on him and, particularly, asked the revocation of the sanction suspending him for three days, inicted after he had strayed away from his work station to go to the canteen at 5:30 pm instead of 7:30 pm, as directed by the ofcer in charge for the purpose of service. The Tribunal of Busto Arsizio held the disciplinary sanctions justied, stating that, in any event, insofar as the employee was entitled to a lunch break only after six hours of shift he would have been able to take his meal break before the lapsing of the six hours only if duly authorized by the ofcer responsible, and only where his presence for service was unnecessary. The Court of Appeal upheld the decision of the lower court and found the sanctions proportionate to the seriousness of the breach, placing the emphasis on the fact that the petitioner was in duty bound to perform his tasks for six hours of his shift where meal break was not authorized owing to corporate organizational exigencies, and that consequently he was entitled to a break only once the six hours had lapsed. Insofar as the employee had been granted no authorization from his immediate superior, who requested his presence for the exigencies of service, and having instead strayed away from his work station, the Court of Appeal found the employee guilty of such non-performance as justied the sanction handed down to him. (Counsels: Giorgio Molteni and Claudio Ponari)
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