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DISCIPLINARY DISMISSAL - From: http://www.legge-e-giustizia.it

THE COURT SHOULD NOT AUTOMATICALLY APPLY THE PENALTY OF DISMISSAL FROM THE COLLECTIVE AGREEMENT PROVIDED FOR A PARTICULAR OFFENCE - It 's an assessment on the adequacy in this case (Supreme Chamber Job No. 11846 of May 21, 2009, Pres Ianniruberto, Rel Ballets)

Vinicius B. Great Hotels Spa Fezia employee with the title of bartender was fired on the basis of two complaints: delayed submission of medical certification on the occasion of an absence due to illness, delayed closure, on another occasion, the accounts of the bar. He asked the court to set aside the dismissal of Florence for the excessiveness of the sentence. The company defended itself by stating that the penalty of dismissal was due to the delay in the medical certificate, in Articles 118 and 14 of the Negotiable tourism and that the late closure of accounts constituted an irregularity tax. The Court granted the request, ordering the reinstatement work and condemning the company to pay damages. On appeal the Court of Florence confirmed the decision, since it considered the penalty excessive, the result being that the worker had warned the company through his brother and then sent the certificate in order to prove indisputably the disease state. The company appealed to the Supreme Court, criticizing the decision under appeal for failure to state reasons and violation of the law.
The Supreme Court (section Paper No. 11846 of May 21, 2009, Pres Ianniruberto, Rel Ballets) dismissed the appeal. If the collective agreement, as a case of just cause for dismissal, failure or delay in submission of medical certificates in case of absence due to illness or non-performance of other specific contractual obligations by the employee - said the Court - the assessment on the legality of his dismissal was motivated by the occurrence of any of these assumptions, it can not be achieved automatically by the mere finding that the conduct of the worker integrates the case typed contract, but that it must always be linked with the concept of legal cause, taking into account the seriousness of the conduct of the worker in practice also in terms of subjective fault or intent. Consequently, the provision of the collective agreement regarding the delayed submission of the medical certificate must be evaluated in the sense that the penalty of dismissal for misconduct may properly be imposed only when there are still remaining grounds of justification (and, therefore, in terms of fault or fraud, the infringement is inexcusable) and, anyway, in accordance with "the principle of proportionality."
On the subject of disciplinary action - the Court made clear - the fundamental principle of proportionality of punishment to the seriousness the infringement must be respected both in the imposition of sanctions by the employer in exercising its disciplinary powers, both in the control of the legality and appropriateness of the penalty imposed, the court is called upon to do, to this connection, it is indispensable to the evaluation by the trial judge, hearing the proceedings regarding the legality of such measures, the existence or otherwise of the relationship of proportionality between the infringement of the worker and the penalty imposed on it, so the court must take into account not only the objective circumstances, but also of how subjective the conduct of the worker as they also affect the determination the seriousness of the transgression, and thus the legality of the sentence itself: with the conclusion that the appreciation of the merits of proportionality between offense and punishment escape censure in the assessment of legality if the trial court is supported by appropriate and logical reasoning .

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MATERIAL DAMAGE AND DAMAGE OTHER ORGANIC ONTOLOGICAL Author Joseph Buffone From: http://www.altalex.com

The Legislature denies 26972/2008 UP: non-pecuniary damage and biological damage, ontologically different
(Deus Ex Machina: Presidential Decree 37/2009)
of Joseph Buffone
At the time it was said that the Code of Private Insurance ( Leg. 209/2005) "shall enter into force in 2005, when, as the Court stratified over time the ' art. 2059 cod. Civ. is understood to contain two separate and independent damages categories: the biological damage and moral damage " 1.
He then said, invoking "the canon of interpretation of the CD. legislature aware " 2, the legislature has made an explicit and unambiguous choice of interpretation: the moral is to be treated as a liquidation post completely independent and not absorbed into biological damage.
It is therefore concluded in the sense of believing that the theory of somatization of pain and suffering is not reflected in positive law 3.
The controversy, as is known, was born following the arrests of the United Sections of 11 November 2008 ( No. 26972 - No. 26975) where the Board of legitimacy has led back to drive the non-pecuniary damage setting aside the role of non-pecuniary damage and firing, without notice, the existential damage.
The plenum, in particular, has sought to believe that the biological damage is attended by non-pecuniary damage which is a component, a circumstance that prevents a settlement of two separate items of damage (not ontologically autonomous).
for moral damages, the interpretation of force until 11 November 2008, referred to the term 'dommage moral', introduced in order to safeguard the moral integrity of the victim of the offense, the legal manned by art. In relation to Article 2 of the Constitution. 1 of the Charter of Nice and the Lisbon Treaty, ratified by Italy with L. August 2, 2008, No 130, which protects human dignity as the ultimate expression of his moral integrity and biological (Cass. civ., Sec. III, 12 December 2008, n. 29191).
It was constantly asserted the ontological autonomy, as part of ' art. 2059 cc , axiom, which makes criticism a liquidation carried out, automatically, to the extent of half of the biological damage 4.
Interpretation SAID he had found, in 2003, the final screening of the High Courts. In particular, the Consultation was held that the abstract prediction of the rule in all ' art. 2059 cc should encompass any non-pecuniary damage arising from injury related to the individual values: the moral is subjective, defined as transient disturbance in the state of mind of the victim is the biological damage in the strict sense, defined as lesions of 'interest, constitutionally guaranteed, psychological and physical integrity of the person, following a medical examination (art. 32 of the Constitution), and finally the loss (often defined in law as doctrine and existential) resulting from an impairment of (other) constitutional interests related to the individual ( Constitutional Court., July 11, 2003, No. 233 5). The standard ex
art. 2059 cc , into which he lives, is manifest, therefore, the interpreters in the sense that biological damage and material damage subjective had "a different kind and do not identify themselves in any way" (as Constitutional Court., July 22, 1996, No 293 6), because "the biological damage is the injury to mental, and moral damage is the injury of moral integrity" (Cass. civ., Sec. III, July 12, 2006, No. 15760 7).
a short distance of time from SS.UU. the Supreme Court 8 (see Decision No 26972/2008 9), there is an important intervention of the legislator that, even in a field of peculiar and intervening in a particular sector, revealed a line of reasoning in striking contrast with one made by SS.UU. 26972/08 . This is the DPR March 3, 2009, No 37 (Rules for the regulation of terms and conditions for the recognition of specific causes of disability for service personnel in military missions abroad, in conflict and national military bases, in accordance with Article 2, paragraphs 78 and 79 of Law 24 December 2007, No. 244 10). Article. SAID 5 of the decree introduces the legal criteria for the determination of permanent disability, as follows.
% of IP
Permanent Disability
The percentage of permanent disability (IP) refers to the ability to work, and 'given whichever is more favorable of that determined according to the tables for degrees of disability and its method of use approved in accordance with Article 3, paragraph 3, of Law December 29, 1990, No 407, with DM 5 febbrai 1992, as amended, and the value determined in accordance with Tables A, B, E and F1 attached to the decree of the President December 23, 1978, No 915% DB

biological damage
The percentage of biological damage (DB) and 'determined according to the tables of impairments and the criteria for the application of Articles 138, paragraph 1, and 139, paragraph 4, of Legislative Decree of 7 September 2005 No 209, as amended
% DM
material damage
The determination of the percentage of non-pecuniary damage (MD) is done on a case by case basis, taking into account the amount of pain and disturbance of mood, in addition to the injury personal dignity, in relation to the event and associated damage, to an extent up to a maximum of two thirds of the percentage of biological damage
% IC
Disability
the overall percentage of disability Overall (IC), which in any case can not 'exceed the extent of one hundred percent, and' the sum of the percentages of biological damage, material damage and the value, if positive, representing the difference between the percentage of disability reported the working capacity and the percentage of biological damage: IC = DM + DB + (DB-IP)
Two considerations are important.
1) The Legislature "connects" the biological damage mentioned in the decree under review ( 37/09) than that under the Code of Private Insurance ( Leg. 209/05).
2) in the determination of material damage must be taken into account "the injury to personal dignity."
E ' clear, as the first point, the legislature is introducing a system of compensatory damages biological compact and approved, as depicted in Leg. 209/05 (Articles 138, 139), which makes the theorems of Decree 37/2009 certainly not peripheral but emerging, downstream of a single upstream mens legis.
E ', evident since the second point, the legislature draws the Court stated that the ontological autonomy of the moral damage, making defense of human dignity, as has already been written.
One consideration is disruptive: the Legislature, at least this time, it is absolutely clear, since recourse to mathematical formulas.
Disability total is equal to: "DB + DM" (...).
biological damage that accumulates at the damage.
repudiated, expressly to the thesis of somatization of pain and suffering.
The use of "mathematics" (DB + DM) and the "letters" (DB, DM) seems to want to avoid the risk of a Tower of Babel when interpretive augur assigns each concept to the legal meaning that he likes best.
should, however, noted that the judge has a duty - because under the law - to watch the entire regulatory system for infer the interpretation that most of the other (or one among many) respects the sovereignty of the people as expressed by representative bodies. And then, when the Legislature clearly indicates a path of interpretation, the interpreter remains bound to this.
The decree says that at this point, it should induce agents to meditate upon the hermeneutic of non-pecuniary damage under Article . 2059 cod. Civ. and sections of Cassation simple to call, once again, the question to the United Sections for reconsideration of the matter.
interpreters, formulas in hand, we can only count 11 .
______________
a V, Buffone, the House Report, May 6, 2009 in www.altalex.com .
2 expressly mentioned by: Civil Cassation, sez. III, August 24, 2007, No 17958. The canon of interpretation of the "Legislator aware" implies a parliament in case law and carefully composed, at least in part, by technicians. That said, this is a criterion that should guide the interpreter to the choice hermeneutics closer to the sovereign will of the people as represented in the rooms (a criterion that is too often played down or not taken into account).
3 Viola, the House Report, May 6, 2009 in www.altalex.com .
4 Cass. Civ., Sec. III, March 15, 2007, n.5987 in Resp. civ., 2007, 5, 467.
5 Jur. Lt, 2004, 723, CASSANO note.
6 Jur. Lt, 1997, I, 314, note commands'.
7 Resp. civ., 2007, 1, 28, note TOSCHI Vespasian.
8 Cass. Civ., Sec. A., November 11, 2008, No 26972 in the right guide, 2008, 47 18, known Dalia; commands'.
9 In this rev. 2009, 1 38, cf. also fair. Civ. Mass. 2008, 11 1607.
OJ General Series No 10 93, April 22, 2009.
11 For more information: Viola, The harm, pre-contractual liability, special responsibilities, Halley, 2007 Franzoni, The living law of non-pecuniary damage, in Il Corriere corporation, 2009, 1, Viola, Danni from death and injury, Cedam, 2009; Bilotta, the prejudices of existence: the heart of non-pecuniary damage after SU-2008, in The Civil Liability, 2009, 01; Busnelli, sections merged and non-pecuniary damage, in Riv. Dir Civ., 2009; Buffone, limits on compensatory damages in non-pecuniary damage liability and compensation, 2009, V.

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BURDEN 'OF ALL ACTIVITY ALLEGED' WORK (Note Gesuele Bellini from the site) http://www.altalex.com/

Each work is expected for consideration unless it is shown that there is a purpose of solidarity instead of profit-making and the understanding that the assessment thereof made by the trial judge is censured by the seat of legitimacy if immune to errors of law and vice logical. This
the decision of the Court of Cassation, section work, January 26, 2009, No 1833.
The issue involved two people, presumably linked by a relationship of which lend a work for each other, which later brought an action for having such differences in pay due to the employment relationship. Actions that after the acceptance in the first and second degree, comes before the Court of Cassation.
The interesting question that sentence, emphasizes the idea of \u200b\u200bthe configuration of the work provided for the "veil affectionis benevolentiae cause."
As you know, in our ordering the situation typical of the employment relationship, as well as the extremes of cooperation and subordination, is also characterized dell'onerosità and therefore not the case in which a particular activity, even if objectively as gainful employment, not performed in a spirit of subordination, either in view of adequate remuneration, but for "Speed \u200b\u200baffectionis benevolentiae cause" or a tribute to the principles of moral or religious views or benefits that derive or hope to take over from 's activity itself.
These are cases in which the service is rendered by the worker without a reciprocal, because the worker is motivated by a relationship of affection towards the user of the service, familiarity, a bond charitable or philanthropic or religious or ideal.
In practice, that dell'onerosità is the rule, while the free is the exception, which is excluded due to a typical exchange between work and remuneration.
Regarding the latter issue and in particular about the work done within the family law (Cass. November 28, 2003, No. 18284) believes that the same may be assumed free of charge for the mere fact that the user is close joint (eg the husband than the wife, taking into account the limits imposed by the law by Law No 175 of 1975 family on the company) - although in principle can not completely exclude the existence of a configurable employment relationship between spouses (Cass. August 9, 1996, No. 7378, Cass. May 29, 1991, No 6083) - while, outside the family sphere, when the ratio of free to assume the presence of a political constraint, ideal, religious and similar evidence must be provided to those who successfully raises the performance "affectionis vel benevolentiae cause" and rigorous.
The law (Cass. November 7, 2003, No. 16774), also believes that the configurability of course free of charge to job performance objectively, such as outside the contract of employment in a technical sense, it was prevented by the constitutional rules (Article 36 cost. and art. 2094, 2099, 2113 and 2126 cc) which assume the burden of the relationship, as the same, doing the typical figure of employment contract, does not exclude the acceptance of a job performance with features above, the stipulation that private autonomy is allowed.
In the present case relating to the decision in question, who propeso elements were decisive for the configuration of the employment relationship was the lack of continuity in the coexistence of the two subjects, which was often interrupted, and especially the lack of a shared content common life in relation to the income of the business.
In practice, it has not proved an economic and spiritual, like that which is established between the spouses, then, even with fair access to resources.
The only evidence that it were only a few donations (no charge for an apartment, pay some debts, free removal of goods - clothes - from the shop), which however were not considered sufficient to establish a relationship of solidarity between the two people, and for these reasons, the Court rejected the appeal.
(American Lawyer, May 21, 2009. Note Gesuele Bellini )

Taken from the website: http://www.altalex.com/

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APPEAL DISMISSAL from the site: http://www.legge-e-giustizia.it/

CONFLICT OF LAW ON THE EFFECTS OF DISMISSAL of the appeal sent by post BEFORE THE EXPIRATION OF 60 DAYS BY APPLICABLE LAW N. 604 DEL 1966 - Call for a decision by the United Sections (Supreme Chamber Work Order No. 10230 of May 4, 2009, Pres Sciarelli, Ianniello Rel).
John C. dependent dei Paschi di Siena SpA Banca was dismissed for disciplinary reasons, by letter dated July 20, 1998 which reached him on July 22 next. Before contacting the court, he appealed the dismissal by registered letter sent Sept. 18, 1998 that the company has received 25 September 1998. In subsequent proceedings before the Court Termini Imerese he sought the annulment of the dismissal for unfounded reasons. The company has argued the forfeiture of the employee the right to appeal the dismissal, noting that it received notice of appeal five days after the expiry of 60 days set by art. 6 of Law 604 of 1966. The Court upheld the objection raised by the company, dismissing the action. On appeal, the Court of Palermo upheld the decision of the Court noting that the purpose of verifying compliance with the limitation period provided by art. 6 L. No 604/66, reference must be made on the date of receipt, not the date of dispatch of written notice of the appeal. The worker appealed to the Supreme Court criticizes the decision of the Court of Palermo to have ruled out the applicability of the unilateral acts of nature not the case, sent via the postal service, the rule laid down by the Constitutional Court ruling No. 26 November 2002 477, that the effects from the service of documents by post should be reconnected to the notifier at the time of delivery of the act to notify the bailiff to avoid a burden on this subject, the risks arising from activities, delays etc.. removed from his control and his sphere of availability.
The Supreme Court (Section Work Order No. 10230 of May 4, 2009, Pres Sciarelli, Rel Ianniello) found that in has determined a conflict of law, as up to 2006 has been consistently followed the approach adopted by the United Sections in Case No. 5395 of 13 October 1982 that the appeal of the dismissal is an act of hospitality, waves, under Article. 1334 cod. Civ. takes effect when it comes to the attention of the recipient. Over the last decade - the Court noted - were also developed from a critical part of the doctrine, not only de jure condendum, indifference with regard to retention, the level of maturation of the decline in general, the occurrence of obstacles to a right and to achieve an expected result does not controllable by the person who recently added to this must be The Constitutional Court, with rulings by November 26, 2002 No 477, No. 23 January 2004 No 28 and March 12, 2004 97, declaring as unconstitutional to the art. 149 cod. proc. Civ. and art. 4, third paragraph of the Law No 20 November 1982 890, to the extent that it provides that service is perfected, for notifying the date of receipt of the document by the recipient rather than before delivery of the bailiff, has come to say that the principle of destination between the two phases of processing notifications of the pleadings, respectively, for the notifier and the consignee, is crucial for the interpretation of other provisions of the code of civil procedure on notifications. This principle has been argued with the finding that in terms of service of pleadings Articles. 3:24 GC "require that the guarantees of the knowability of the recipient should coordinate with the interest of the notifier to not be held liable for the unintended outcome of a proceeding notificatorio partially removed his powers Pulse" experiment, then solution as constitutionally required as co-ordination that can be deduced from the "principle of sufficient ... the completion of formalities which do not escape the sun on the availability of the notifier.
Along this guideline - added to the Supreme Court - has also recently given a ruling Section of the Labour Court (Cass. September 4, 2008 No 22287), which, starting from the jurisprudence established in the critical matter of the suitability of the appeal of the dismissal to prevent the decline in art. 6 of Law 604/66 and appreciating the possible effects of the principles affirmed by the Constitutional Court on this ground also, especially in view of the particular interests that are involved by the worker, he said (without considering it necessary to propose a question of constitutionality ) that can be deduced from the law 604/66 the principle that the appeal of the dismissal must be considered early, preventing the loss referred to this law, if the letter which it is contained, within sixty days, delivered at the post office and even if it is delivered to the recipient after the expiration of that period, even before that decision (which is recently standardized: Cass. Sec. Lav. March 16, 2009 No 6335) and in the same spirit, Cass. June 19, 2006 No 14087, in interpreting art. 410, second paragraph of cod. proc. Civ. - That the statement of the request for conciliation interrupts the prescription and suspending for the duration of the attempt and the same for twenty days following its conclusion, the course of any limitation period - said the suspension of the limitation period for the appeal of the dismissal is produced by the lodging of the application for conciliation which the appeal, it is irrelevant vice versa, as foreign to the sphere of control of the employee, upon notice from the employment with the employer the date of the meeting to carry out the attempt at conciliation. It is calculated as follows - the Court observed - within the Department of Labour is a conflict, prompted by new guidelines in academic writings and rulings by the Constitutional Court, on a subject that is of particular importance given the significance of the interests involved, for the possible effects in areas other than labor law, hence the opportunity for a discussion of it by the United Sections. Therefore, the Court has ordered the transmission of documents to the First President, for the possible assignment of the case to the United Sections for the resolution of the contrast observed.

Taken from website: http://www.legge-e-giustizia.it/index.php?option=com_content&task=view&id=3074&Itemid=180

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RIGHT TO STAY note Cesira Hough Taken from http://www.altalex.com/

The European Court of Justice with the decision of September 25, 2008, No. C-453/07 stated in terms of family reunification, the child extra permitted to enter the territory of a Member State that has acquired the right of free access to any work, we lose the right to stay in the territory of that state once they come of age.
Following the Association Agreement between the European Economic Community and Turkey under Article. 7, first paragraph, of Decision No 1 / 180 of the Association Council, the non-exercise of gainful employment does not necessarily mean the loss of acquired rights, namely the right of residence granted to the son of a worker turkish.
Family members authorized to reach an employee turkish inserted into the labor force, has art. 7 of Decision No 1 / 180, have the right to respond, subject to the priority to workers of Member Members of the Community, to any offer of employment after they have been legally resident for at least three years. Enjoy free access to any paid employment of their choice have been legally resident for at least five years. The children of Turkish workers who have completed vocational training in the host country may respond to any offer of employment in that Member State.
As the law of the ECJ, the restrictions to the rights that Article. 7, first paragraph, of Decision No 1 / 180 of family members of Turkish workers who fulfill the conditions, can only be of two types, the presence of turkish migrants in the host territory of the State member has, because of his conduct, a genuine and serious threat to public order, safety or public health under Article. 14, No 1, of that decision, or because the person concerned has left the territory of that State for a significant length of time without legitimate reason.
(American Lawyer, May 19, 2009. Note Cesira Cruciani )

Adapted from http://www.altalex.com/index.php?idnot=46081

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non-pecuniary damage Author: Roberto Cataldi From: http://www.studiocataldi.it/

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The Court of Cassation said that the worry of mind caused by fear of possible repercussions on health caused from having been exposed to an environment polluted by toxic substances, such as material damage must be compensated. The Court has dealt with each of 86 residents near the ' plant in Seveso which came out (about 33 years ago) a toxic cloud composed of dioxin, and their CREDITS compensation of € 5,000 each. In the third sentence of the Civil Chamber (n.11059/2009) writes explicitly that the Court is right to recognize the "non-pecuniary damage" to the "paternal feelings prompted by a concern for everyone in their state of health ". As regards the evidence, the Court, the presumption may be used "as sufficient substantial probability 'of occurrence "of the father's inner feelings and suffering due to the concern of getting sick. The company (previously involved in criminal proceedings for the crime of environmental disaster) in its application to the Supreme Court had stated, among other things, that there was no evidence that residents in the area of \u200b\u200bthe toxic cloud had been reflected in social life and relationships. Piazza Cavour rejected the application, stating that the ruling of lower courts have correctly recognized the right to 86 Seveso residents to pay damages. Judgement, the Court writes, "is entirely correct in law in stating that the non-pecuniary damage consisting of paternal mood good internal and suffering can 'be proved that the assumptions and to test for inductive inference does not postulate that the unknown fact to prove is the only possible reflex starts a known fact, it is sufficient to the substantial probability' of occurrence of one in dependence the occurrence of the other criteria of regularity 'cause ". The amount of € 5 thousand recognized the benefit of any resident is moreover, according to the court," a supervisory assessment, and even minimal moral damage "suffered. (Data : 16/05/2009 9.00.00 - Author: Roberto Cataldi)

Adapted from http://www.studiocataldi.it/news_giuridiche_asp/news_giuridica_6953.asp