Studio Legale Pavan Website

The employee's right to voice criticism of the employer

The boundary between the legitimate exercise of the worker's right to voice criticism of employer and the breach of the fiduciary bond is not easy to outline: with sentence no. 1379 of 18 January 2019, the Court of Cassation stated that the criticism made by a worker against his employer turns into a disciplinary offense if it does not comply with the requirements of truth, continence and relev...

The Constitutional Court states on e-mail PEC notifications after 9.00 pm

The Constitutional Court, with sentence no. 75 of 19 March 2019, declared the constitutional illegitimacy of art. 16-septies of the Decree-law 18 October 2012, no. 179, converted, with amendments, into the Law of 17 December 2012, no. 221, in the part in which it provides that the notification carried out by e-mail PEC, whose acceptance receipt is generated after 9.00 pm and within 12....

The company that lacks of the qualification required, to an extent corresponding to its share of work, causes the exclusion of the RTI from the tender.

“Adunanza Plenaria” (Cons. St., A. P., 27 March 2019, n. 6)  has recently stated that "according to art. 92, paragraph 2, d.P.R. 5 October 2010 n. 207, if one of the companies that is part of a temporary grouping,  at the time of submitting the offer, lacks of the qualifications required for its part of work, this causes the exclusion of the entire grouping from the offer, even if the...

Permits under Law 104: legitimate dismissal of the worker taking advantage of them

Worker behavior that take advantage of work permits acknowledged, pursuant to Law n. 104/1992, in order to provide assistance to a disabled family member, constitutes an infringement to the fiduciary obligation, which is indispensable to the correct prosecution of the employment relationship, and it is suitable to legitimize, therefore, its dismissal. This is the principle stated by the...

The entrepreneur's responsibility regarding to the construction site access area

The Court of Cassation, Criminal Section IV, with sentence no. 11157 of 13 March 2019, established that public sidewalks are not part of the site access area. The subject of the Court's ruling was the identification of responsibility for an accident that occurred at the entrance of a construction site, following which a woman who was passing along the sidewalk, adjacent to the site, los...

Software Tutor: the owner is not “Autostrade per l'Italia”

The Court of Rome, with the sentence no. 120 of 4 January 2019, has rejected Autostrade per l'Italia’s claim for the ownership of the SICVe software, stating that Autostrade per l’Italia cannot be considered the intellectual property owner of the average speed control system, and neither the owner of the related software. The Court stated that Aspi...

Responsibility pursuant to Legislative Decree no. 231/2001: the non-applicability to the legal person of the particular tenuousness of the fact performed by the natural person

The non-punishment cause of the particular tenuousness of the fact, as per art. 131-bis of the Criminal Code, it is not applicable to legal persons, which responsibility is attributed pursuant to Legislative Decree 231/2001. This principle was stated by the Court of Cassation, Section III criminal with sentence n. 11518 of 15 March 2019. The declaration of non-punishment for pa...

The Constitutional Court rules on the decriminalization of the crime of injury

The Constitutional Court, with sentence no. 37 of 6 March 2019, stated on constitutional legitimacy issues, raised by the Territorial Court of Venice, based on the decriminalization of the offense of injury, introduced by Legislative Decree January 15, 2016, n. 7. In the opinion of the Court, from the recognition of a fundamental right, such as the right of honor, the obligation for the...

Properties to be built: the preliminary contract must be stipulated by the notary

The new Corporate Crisis and Insolvency Code, pursuant to Legislative Decree 12 January 2019, no. 14, involves some important innovations to the Legislative Decree 20 June 2005, no. 122. In particular, the preliminary sales contract relating to properties to be built, must be stipulated by official record or by an authenticated private agreement. This regulation applies to contracts con...

Oral dismissal is not proved by the mere cessation of the job performance

The worker who challenge a dismissal, ordered without observing the written form, has the burden of proving, as a constitutive fact of his judicial request, that the termination of the employment relationship is attributable to the will of the employer. The mere cessation in the execution of the working performance is not, in fact, a suitable proof, especially when the employer complain...

Accident at work: a settlement can prove the employer's guilt in civil proceedings

The criminal sentence issued following a plea bargaining may constitute an element of evidence in the civil trial, since the request for the defendant's plea deal could imply an admission of having committed the facts constituting the crime. It follows that the judge, in order to overcome such probative value, has to provide an appropriate motivation. This principle was stated by the Su...

Illegitimate dismissal: joint liability between co-employers

Recalling the civil rules on debt between several co-obligors (Article 1294 of the Civil Code), the Court of Cassation (Civil Cassation, labor section, ruling 11.2.2019 No. 3899) stated that, even if there is no evidence of the existence of a the only center for allocating interest, there is joint liability between several companies where the worker proves that he or she has lent their work ind...