The Supreme Court of Cassation, by Order no. 28141 of 14 December 2020, stated that a selection procedure used by an employer to fill professional positions constituting career advancement represents a “contractual offer” to potentially interested recipients.

As part of private employment relationships, the employer must manage the selection procedure and identify the employees deserving the promotion by complying with the rules set out in the call for applications. This is under the principles of fairness and good faith underlying any contractual obligation, including employment relationships.

The facts of the case were that a healthcare management company launched an internal selection procedure for the head nurse position assignment. The selection procedure had two distinct phases – one concerning the examination of applications and related curricula; the other, consisting of an aptitude interview with the candidates carried out by a specialised third-party company.

An employee who had taken part in the call for applications took legal action to obtain a ruling that the internal selection procedure for the position’s award was unlawful. She requested that the employer be ordered to pay compensation for financial loss in the form of differences in salary due, recalculated based on the resulting classification level, and damage to her professionalism.

The Court of Appeal of Caltanissetta, overturned the first instance decision, and rejected the request made by the employee excluded by the aptitude test. It pointed out that she was unsuitable and lacked the necessary requirements for the company selection procedure. It was found that, based on the correct application of the selection procedure set out in the notice, the employer had legitimately awarded the head nurse position to another candidate.

The Court of Cassation confirmed the decision of the local court, pointing out that the procedure notice is correctly exercised if the employer has managed it correctly, in good faith, and following the predetermined selection procedure.

The Court stated that the recruitment procedure notice, the notice of a promotion to a higher position, or the notice for recognising remuneration and benefits for personnel were technically equivalent to an offer to the public. This gives rise to an obligation towards the employees who are the recipients of the selection procedure.

If the notice contains the essential elements of the employment contract for which it is intended, it constitutes an offer to the public under Article 1336 of the Civil Code. The code states that the offer to the public is valid as a contractual proposal unless the circumstances or custom dictate otherwise.

Such an offer binds employers and once the procedure has been initiated, they cannot modify the content outlined in the procedure notice to the detriment of those to whom the offer was addressed.

On this basis, which was emphasised on several occasions by the case law on the subject, the Supreme Court stated that this principle applied to this case and rejected the employee’s claims.

In its message no. 406 of 29 January, INPS provided the instructions for the 12 weeks of wage subsidies for 2021, allocated by the 2021 Budget Law.

Employers interested in the new periods can submit electronic applications for FIS, ordinary and exceptional redundancy fund payments, using the appropriate reason on the INPS institutional portal.

The deadline for submitting applications is the end of the month following the month in which the period of work suspension or reduction began.

For work suspension or reductions that began in January, applications must be submitted by 28 February.

Pease note that the 12 weeks of wage subsidies can be used until 31 March 2021 for the ordinary redundancy fund and until 30 June for the FIS and exceptional redundancy fund.

The Court of Mantua, in its ruling no. 112/2020, has declared the dismissal of an apprentice for justified objective reason invalid, because it is contrary to the COVID-19 pandemic emergency legislation.

Facts

The plaintiff was employed by a company operating in the clothing and jewellery retail sector under a professional apprenticeship contract, with “assistant salesperson” duties and classified at level VI of the Commerce National Labour Collective Agreement.

Between March to May 2020, the apprentice had been placed under a redundancy fund due to the decrease in work because of the pandemic. Following the use of social security benefits and after having been formally placed on leave for of June, the apprentice received a letter dismissing her effective from 30 June 2020 in compliance with the contractual notice period.

In support of the termination, the employer mentioned the closure of the workplace where the apprentice worked and the consequent cessation of the company’s activities.

The apprentice appealed against her dismissal for financial reasons, arguing that the company’s activities had not ceased and that the obligation to repechage had been breached. The apprentice claimed that the dismissal was invalid as it was in breach of Article 46 of Decree-Law no. 18/2020.

Dismissal prohibition as a safeguard for public order

In its ruling, the Court of Mantua noted that the general dismissal prohibition for justified objective reasons was introduced by Decree Law 18/2020 ( Cure Italy Decree) until 17 May 2020, and then extended, initially, until 17 August 2020 by Decree Law 34/2020 ( Relaunch Decree) and, subsequently, throughout 2020 by Decree Law 104/2020 ( August Decree) for employers who had not completely used the weeks of wage subsidies available at that date.

According to the Judge, this prohibition is configured as “a temporary protection of the stability of relationships to safeguard the stability of the market and the economic system and is a labour market and economic policy measure linked to public order requirements.”

Invalid dismissal

The ruling highlighted that “from the imperative and public order nature of the discipline preventing dismissals, it follows that dismissals adopted in contrast to the rule are invalid, with reinstatement under art. 18, paragraph 1, Law 300/1970 and under art. 2, Legislative Decree 23/2015”, i.e. with the reinstatement of the dismissed employee.

On these grounds, since the employer did not “prove that it had ceased operations as stated in the letter of dismissal”, the Court of Mantua declared the dismissal invalid and upheld the apprentice’s appeal, ordering the employer to reinstate her and pay her salary and contributions from the date of dismissal to the date of reinstatement.

With answer to question no. 42 of 18 January 2021, the Inland Revenue has expressed its opinion on the application of the favourable regime introduced by art. 16 of Italian Legislative Decree no. 147/2015 for repatriated workers. The Inland Revenue focused on the possibility for workers returning to Italy, following a posting abroad, to benefit from the above regime.

The taxpayer’s question

In formulating his question, an Italian citizen stated that:

• until 14 February 2016 he had been working in Italy for an Italian company;
• since 15 February 2016 he had been seconded to a group company based in China, with a contract under foreign law;
• since 1 January 2021, he had been re-employed by the same Italian company with a permanent contract.

The taxpayer asked the Inland Revenue whether it was possible to benefit from the special regime reserved to repatriated workers starting from the tax year 2021.

The Inland Revenue’s opinion

The Inland Revenue summarises the tax benefit conditions, considering the latest regulatory changes, pointing out the possibility for the worker to benefit from the abatement of the taxable income up to 70 per cent if:

• workers transfer their residence to the country under Article 2 of the Consolidated Law on Income Tax – TUIR;
• have not been resident in Italy for the two tax periods prior to the transfer and undertake to reside in Italy for at least two years;
• they work mainly in Italy.

The benefit is available starting from the tax period in which the worker transfers their tax residence to Italy and for the following four tax periods.

However, as already expressed in the previous Circular no. 33/E/2020, the Inland Revenue specifies that, for taxpayers returning to Italy following a posting abroad, the tax benefit cannot apply:

• “with the same contract and the same employer; and 
• “if the worker is in a situation of “continuity” with the previous work position held in the country before the expatriation at the time of repatriation, even if there is a new contract for a different company position.”

The Inland Revenue provides an example, and identifies the following as indicators of “continuity” which determine the worker inability to access the tax benefit including:

• holidays accrued before the new contractual agreement;
• seniority from the date of first hiring;
• absence of a probationary period;
• clauses to avoid paying the accruals of the additional months’ salary and the severance indemnity at the time of signing the new agreement;
• clauses which state that at the posting’s completion, the seconded person will be reinstated within the home company organisation under the same employment terms and conditions at the home company before the posting.

These indicators suggest a substantial continuity with the employment relationship established before the posting in which the original contractual terms and conditions before the posting abroad continue to apply and exclude the applicability of the favourable regime.

If work carried out by the worker, after their return to Italy, constitutes a “new” activity which involves signing a new employment contract for a company role completely different from the original it would be a different case. In this situation, the worker would be entitled to benefit from the favourable regime.

Since it is unable to verify the applicant’s employment situation, the Inland Revenue outlines the principle according to which the taxpayer could benefit from the favourable regime starting from 2021 only if the work carried out in Italy after the posting abroad is completely “new” and does not have continuity with the previous employment relationship existing before the expatriation.