Case Law

The compensation of the sales representative shall be seized up to the fifth. Court of Cassation, acknowledging the so called “par condicio” between public and private sector after the last legislative reforms, with the sentence no. 685 of January 18th, 2012, rejected the appeal triggered by creditors of a sales representative who claimed a seizure superior to a fifth of the sales representative compensation.

Court of Cassation, with sentence no. 38927 of October 27, 2011, has stated that the employer who, with the purpose to gain the benefit of the ordinary or extraordinary layoff, has not revealed the existence of several orders involving significant amounts which evasion would allow the ordinary activity of the company without suspending the retributive obligation and the consequently fallout of the costs on the collectivity, commits the crime of aggravated fraud (art. 640-bis of the Italian Criminal Code).

The Constitutional Court, with sentence no. 303 of November 11, 2011, declared lawful the system for compensation introduced by the so called “Collegato Lavoro” for the fixed-term employment contracts. The provision on which the Supreme Court pronounced its opinion is Article 32, paragraphs 5 and 6, of Law no. 183/2010 which establishes an indemnity, whose amounts ranges between 2.5 and 12 monthly installments, which has to be paid by the employer to the employee in the event that the latter obtained the conversion of a previous fixed-term employment contract into an open-ended one.

The Court of Milan, with reference to the legitimacy of a fixed-term contract for substitutive reasons, with sentence no. 5020 of October 25, 2011 clarified that the fixed-term hiring contract for the substitution of an employee in maternity leave is valid also when the absence reasons change (in this particular case, the absence continued for holidays).

Through sentence no. 37398 of October 17, 2011, the VI Criminal Section of the Court of Cassation stated that the employee who, in order to avoid liberty restriction (incrimination and employment loss), gives false declarations that allow the employer to elude investigations, is not punishable for aiding and abetting.

Should the fixed term employment contract be null and void, the employee is not entitled to obtain the conversion into an open ended employment contract because the nullity of the provision which sets the duration carries away the entire contract.

Court of Cassation, with order no. 19119/2011, stated that, with reference to the damage, the proof of the amount paid shall be provided through the income tax return or, related to the past profits, the proof by witnesses on the activity performed, pointing out circumstances which could justify the assumption based on which the lack of income is due to extraordinary and temporary conditions.

The Court of Cassation, with sentence No. 17093/2011, declared that the judge, on the one hand, has to interpret the flexibility that the provision concerning the dismissal for “justified subjective reason” offered him (as well as for “just cause”) in order to adapt it to a social context which develops continuously; on the other hand, however, the judge’s evaluation of the future reliability of the employee, on which the decision to deny the lawfulness of the dismissal is based, cannot digress in the employer’s sentence of organizational choices that otherwise he would not have taken