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Dismissal for occurred physical unsuitability: prior obligations for the employer
Corte di Cassazione, 21 May 2019, no. 13649
Corte
di Cassazione, with judgement no. 13649/2019, confirmed the obligation,
for the employer, to assess reasonable changes in their organization
prior to termination of an employee for occurred physical
unsuitability, due to handicap.
The employee, unlawfully terminated, had been declared permanently
unsuitable to perform his duties as a driver and the company had
offered the position of cleaner, with a reduction in work hours. The
employee refused, claiming that the employer had to create a specific
position as aid to the staff in the company workshop.
Collective dismissal and legitimation to appeal
Corte di Cassazione, order 22 May 2019, no. 13871
Corte
di Cassazione, with order no. 13871/2019, pronounced on the existence
of an interest to proceed with an appeal against collective dismissal.
The Court confirmed the principle stating that collective dismissal may
be unlawful for violation of choice criteria, pursuant to art. 1441,
par. 1, c.c., but not null and void. Therefore, an appeal against it
may not be moved by anyone, but only by subjects with a substantial
interest.
Therefore, in case dismissal is unlawful, it may not be challenged by
any employee, but only by those for were affected by the
violation.
Reimbursement of sums following convictions
Corte di Cassazione, order 12 June 2019, no. 15755
Corte
di Cassazione, with order no. 15755/2019, pronounced on the
reimbursement to the employer of sums in case of partial amendment of a
prior judgement.
It is specified that the automatic grant of monetary revaluation on
sums due as salary is contemplated only for subordinate workers, or
self-employed workers without an entrepreneurial structure; it is not,
instead, contemplated for coordinated collaboration relationships.
It is also specified that the employer is entitled to claim back the
amount actually received by the employee and may not demand the return
of sums, gross of tax withholdings, that never became part of the
employee’s assets.
Non-liability to punishment for failure to apply withholdings: clarifications
Corte di Cassazione, order 10 June 2019, no. 25537
Corte
di Cassazione, with order no. 25537/2019, shed light on how the clause
of non-liability for “particularly minor offences” in the
felony of failure to pay social security contribution withholdings on
employee salaries.
The Court specifies that said felony is not committed following the
mere failure to meet payment deadlines, but once the cap of €
10,000.00 is exceeded. Furthermore, reiteration of the crime is not
configured for each single unpaid sum in the year.
Non-application of penalties for “particularly minor
offence” may be applied if unpaid amounts slightly exceed the
cap.
Failure to pay social contribution and agreement among creditors (“concordato preventivo”)
Corte di Cassazione, criminal section, 17 July 2019, no. 31327
Corte
di Cassazione, with judgement no. 31327/2019, pronounced upon the
application of the clause exempting the employer from criminal
liability when payment of withholdings is finalized within three months
from notice of violation (art. 2, par. 1-bis, Law Decree no. 463/83).
This regulation, according to the Court, is also applicable in case of
“concordato preventivo”, to which the defaulting company
may in the meanwhile have been admitted.
Usage of undeclared workers and effect on company revenue
Corte di Cassazione, 28 June 2019, no. 17518
Corte
di Cassazione, with judgement no. 17518/2019, confirmed a principle
related to the effect of undeclared workers on company revenue.
Said usage allows the Tax Agency to proceed with a presumptive
recalculation of company revenue, determining higher income connected
with the unregistered cost of employees and increased workforce. I.e.,
once usage of undeclared workers has been ascertained and, pursuant to
their declarations, payment of an unregistered salary is also detected,
the presumption of a higher income follows suit.
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