EMPLOYEE SUFFERS PERSECUTION AFTER HIS REGISTRATION TO A TRADE UNION, COMPANY SENTENCED TO COMPENSATE HARASSMENT DAMAGES
14/02/2018
CASSAZIONE SEZIONE LAVORO SENTENZA N. 30.606 DEL 20 DICEMBRE 2017
An employee took action in court, alleging victimization at the hands of the company. The court considered the harassment allegations legitimate, as it was demonstrated in the lawsuit that the employee had suffered from retaliatory actions for having addressed the trade union organization to voice his complaints and safeguard his interests. As a result of his registration to the trade union, the company moved this employee to another department, adopted a multitude of unjustified disciplinary sanctions against him and through isolation, sidelined him from the scope of work. All of this was intended to force him to resign, which is what eventually happened.
The Court granted to the employee a sum of 23.328 euros by way of compensation for the permanent health disability, a sum of 5165 euros for the period of short-term disability, the sum of 4200 euros for the loss of fees during the period in which he was unable to work due to his injuries and the sum of 801 euros as refund for the medical and legal assistance costs.
The Court of Appeal confirmed the tribunal’s conviction. The company raised an appeal to the court of cassation, which rejected the action claiming that the court of Appeal judges involved, in deliberating on the controversy, had rigorously applied the relevant principles of case-law, summarised as follows:
“While examining the current case, the Territorial Court complied with the regulatory parameters regarding harassment, elaborated by the legitimacy case-law (Cass. 17.2.2009 n. 3785 and last adjourned by Cass. 6.8.2014 n. 17698 ) under which “in order to define workplace harassment these elements must have occurred: a) a series of persecutory behaviours – illicit or even licit (if considered singularly) – which, with vexatious purposes, aim the victim systematically and in a target manner for an extended period of time. This harassment is caused directly by the employer or his delegates or even by other employees, who are subject to the superiors’ authority: b) damage to the employee’s health, persona or dignity c) an aetiological relationship between the mentioned harassment and prejudice suffered by the victim in detriment of their mental and physical integrity and/or their dignity d) the subjective factor, namely the hostile intention which combines all the adverse behaviours. Regarding the burden of proof, the Merit Court adjusted to the criterion, applying it correctly, under which the onus to prove such damage lies with the employee who complains about having suffered health deterioration due to the employment. The same goes for the harmfulness of the working environment, as well as the link between the two. On the other hand, if such circumstances have been demonstrated, the employer can prove of having adopted all the necessary precautions in order to avoid the occurrence of damages and that the employee’s sickness can’t be tied to the failure to fulfill such obligations”.
Cassazione sezione lavoro numero 30.606 del 20 dicembre 2017.
Traduzione di Laura Devetachi Pettinato
In Italy, employees were protected by art. 18 of act n. 300/1970 (usually called “employees statue”), until 2014: workers unjustly fired could sue their employer for being reinstated to their job and for damages (salaries from firing to reinstating). So, if the judge had declared unlawful dismissal, companies had to pay years of salary and social security contribution, even if they didn’t’ get any job performance by fired employees (Italian trials were really slow). From 2015, this won’t happen anymore. In case of unlawful dismissal, employers will only have to pay damages to workers. This compensation will be reasonable: from 4 to 24 months of salary (2 months per year of working). Employees won’t have the right to be reinstated to their job, except for specific situations. So, if he doesn’t appreciate the worker, the employer won’t be obliged to readmit him in his company (except for racial, political and religious discrimination). According to new acts, civil trials are faster, thanks to their computerization. Now payment orders can be issued in a few days. Before, it took several months. Besides, debtors that refuse payments are obliged to pay default interest of 9%. So they have no incentive to delay payments: this would be too expensive. Creditors can ask the court for an order to search in public records debtor’s goods and current accounts to be attached (now access to records is allowed only to specialized agencies) . This new procedural instrument allows to attack debtor's assets more easily. Creditors will be satisfied effectively and more quickly. In this section of the website, we are going to show all this brandnew rules.
espanol