Employment newsletter – May 2021

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LEGISLATION
Published in the Official Gazette no. 120 of May 21, 2021, Law no. 69 of May 21, 2021, converting, with amendments, Decree-Law no. 41 of March 22, 2021 (so-called Support Decree), containing Emergency measures to support businesses during the Covid-19 pandemic.
The conversion law confirms, without any changes, the current ban on dismissals:

  • Until June 30, 2021 for employers eligible for the ordinary wages guarantee fund (CIGO);
  • Until October 31, 2021 for employers eligible for the particular furlough measures known as assegno ordinario, FIS, Cassa integrazione in deroga (CIGD) and Cassa integrazione salariale operai agricoli (CISOA).

Published in the Official Gazette no. 123 of May 25, 2021, the Decree-Law no. 73 of May 25, 2021 (so-called Support Decree Bis) concerning “Urgent measures related to the emergency from COVID-19, for companies, work, young people, health and territorial services“.Below is a summary of the Decree’s key employment-related provisions:

  • Emergency income for period June-September 2021
  • Income of last resort for professionals with disabilities
  • NASPI (unemployment benefit) without progressive reduction until December 31, 2021
  • Expansion contract applicable to companies with at least 100 employees;
  • CIGS in deroga for 26 weeks for companies that record a 50% drop in turnover and enter into a Solidarity Contract;
  • Ban on dismissals for employers applying for CIGO (not subject to additional contribution) from July 1, 2021 to December 31, 2021, limited to the period that such measure is in place.
  • Re-employment contract: usable from July 1, 2021 to October 31, 2021, which provides for an individual project lasting 6 months during which the company  is entitled to 100% contribution exemption (claw back if employee dismissed during or at the end of the period).
  • Extension of allowance for seasonal workers, tourism and entertainment.
  • Reduction in social security contributions to use by December 31, 2021, within the limit of double the number of hours of wage subsidy already used in January, February and March 2021 for private employers in the tourism, spa and trade sectors: extension of the ban on dismissal until December 31, 2021 for those who use it.
  • Allowance for sports workers;
  • Extension of CIGS for termination;
  • Operating costs of job centers;
  • Postponement of social security contributions deadlines for those in the special autonomous administrations for artisans and commercial operators;
  • National plan for Trade Schools;
  • Provisions in favor of border workers;
  • Urgent measures for supervision and safety in the workplace.

CASE LAW
Ban on dismissals even for employers who have not made use of furlough

Court of Venice, Judgement 17 May 2021
Article 14 of the August Decree (Decree-Law no. 104/2020) in providing for the extension of the ban on dismissals for objective reasons for “employers who have not fully benefited from furlough related to the COVID-19 pandemic referred to in Article 1 or else the exemption from payment of social security contributions referred to in Article 3 of this decree“, effectively prohibited dismissal for objective reasons both by employers who had started using furlough or the said exemption, without having already exhausted such measures, as well as employers who had not yet taken advantage of them.

Five-year prescription for the indemnities due on termination of employment
Supreme Court, Employment Section, May 20, 2021, no. 13787
In the event of termination of employment, the indemnities due are subject to five-year prescription pursuant to article 2948(5) of the Civil Code and not to the ordinary ten-year term, regardless of the nature of the indemnity itself, remuneration or social security, or of the type of relationship, subordinate or para-subordinate, given the need to avoid the probatory difficulties deriving from the excessive lapse of time post-termination.

Waiver of notice by an employee is not enforceable as regards social security contributions due to INPS
Supreme Court, employment Section, May 13, 2021, no. 12932
The obligation to contribute, which has the nature of a public obligation arising by law, cannot be affected by a negotiated agreement, which attempts to regulate differently the obligation to pay, or resolve the dispute by means of an out-of-court settlement. Thus, the expression of a different intention between employer and employee cannot overrule the position of INPS, which prevails in court as being entitled to the contributions deriving from the law and cannot be derailed by the terms of a private settlement agreement between the parties.

Collective dismissal limited to a single production unit is legitimate, under certain conditions
Supreme Court, employment Section, May 6, 2021, no. 12040.
It is legitimate to limit the dismissal to only part of the employees belonging to the company’s workforce when the restructuring project refers exclusively to one or more production units, provided that the technical, productive and organizational reasons for the limitation are adequately stated in the opening letter, including with reference to the fungibility or otherwise of the tasks performed by the employees of the locations involved, and are consistent with the reasons underlying the reduction of staff. In the case in point, the duties were not interchangeable, as was identified in the peculiarity of each production site, due to the orders handled, which would have made transfer from one site to another impracticable, for various reasons.

Dismissal for just cause of the manager who makes false statements
Supreme Court, employment Section, May 4, 2021, no. 11644
Held as legitimate the (immediate) dismissal for just cause of the medical director who tried to hide the use of the company car outside of working hours, by making a false declaration, thus postponing the time of the accident from the evening to the next morning, when using the vehicle would have been allowed.

CUSTOM AND PRACTICE
Inland Revenue reply to Question no. 314 of May 3, 2021
Employee income – reimbursement of expenses of employees in remote working Article 51(1) of the TUIR.
The reimbursement made to employees working remotely is not taxable if it relates to a consumption incurred by the employee in the exclusive interests of the employer.

INAIL – Technical operational document May 12, 2021
Technical operational document for the start of vaccinations in implementation of the interim indications for COVID-19 vaccinations in the workplace approved by the Conference of Regions and Autonomous Provinces on April 8, 2021.

Privacy Authority – Provision of May 13, 2021
Guidance document “Vaccination in the workplace: general indications for the processing of personal data“.

INPS – Message May 17, 2021 n. 1956
Social Security contribution exemption for companies that do not claim additional furlough.

INL – note 19 May 2021 Protocol. no. 804
Art. 19(3) of Legislative Decree no. 81/2015 – additional fixed-term contracts signed at ITL.