The recent reform, by eliminating any constraint on dismissals, can push entrepreneurs to use any means to get rid of uncomfortable labour, for example by choosing to "solve" more expensive relationships to encourage the entry of precarious workers
Of Lisa Bartoli, Experiences 07 April 2017 – review.it
Left inactive for more than a year, without homework, isolated, without a desk or an office, forced to stand along the corridor, then moved to the cemetery, as a place of work, for carrying out the practices. There is enough for the Court of Cassation to establish the existence of a persecutory behavior on the part of the employer, to be configured as mobbing and consequently to condemn a Calabrian Municipality to pay the biological damage, by way of compensation, in favor of an employee of the municipal police. Judgment no. 2142 of 27 January is the latest, in chronological order, on the subject of mobbing, but there are not many others of the same sign.
It is difficult to demonstrate the employer's persecutory intent, a necessary basis for the recognition of behaviour mobbing, almost impossible when certain legislative references are missing, able to define it. “In Italy, there is no specific legislation – explained the labor lawyer Francesco Bronzini, on the occasion of a training course for journalists – and therefore the interpretations are varied and sometimes generate misunderstandings. Mobbing is often confused with demotion and marginalization, but it is not like that. To these elements we need to add others, which are essential to be able to configure it”. There are seven parameters to keep in mind: the first is, above all, that the persecutory conduct occurs in the workplace; that it is frequent and lasts at least six months; that it can be demonstrated that he has suffered frontal attacks, isolation, demotion, attacks on his reputation, violence, even physical, and threats, in a persecutory crescendo that lasts over time. In addition, it should be added that the burden of proof is entirely on the mobbed worker, who may also resort to the testimonies of colleagues, who however may be unwilling to act, as it is easy to imagine, for fear of retaliation.
A truly complicated path, which evidently is also reflected in the few complaints forwarded to Inail: a few hundred, every year, of which, however, only 30 percent are accepted. “To complicate things – explains Silvino Candeloro, of the Inca Presidency College – the Jobs Act has been added which, by eliminating any restriction on dismissals, encourages employers to use any means to get rid of uncomfortable labour, for example, choosing to 'solve' more expensive employment relationships to encourage the entry of people with more precarious contracts”. A more careful reading of the disturbing increase in so-called disciplinary dismissals in the last year, together with the growing recourse to forms of precarious work, could reveal a much more extensive phenomenon of work-related stress which finds its maximum expression in mobbing. In 2016 alone, according to the Observatory on INPS precariousness, disciplinary dismissals in companies with more than 15 employees increased by 31%, going from 24,595 in 2015 to 32,232 last year. “What lies behind the term 'disciplinary' is easy to guess, but very difficult to prove”, Candeloro comments again.
In this regulatory vacuum, it is not surprising how even justice shows a fluctuating orientation, moving between compliance with article 2087 of the civil code, which establishes the obligation of the entrepreneur to adopt the necessary measures to "protect the physical integrity and moral personality of the worker" and a series of specific rules on stalking, harassment sexual, up to including article 2103 of the civil code on demotion, on which the repercussions of the new legislation on dismissals, introduced by the Jobs Act, are felt more.
Here is a summary of the main sentences issued, recalled in the volume "From mobbing to discomfort to work-related stress", edited by Fernando Cecchini (Nep editions), shows how difficult it is to find a linearity of jurisprudential orientation:
- Cassation 31 May 2011, n. 12048. Throw a lot of coins instead of the check on the employee's desk: the employer saves himself from mobbing.
- Cassation 16 September 2013. Bullying does not exist if the worker "reacts" to the harassment of the boss. The ability to defend and respond blow by blow excludes the existence of psycho-physical damage.
- Cassation 2 October-21 November 2013 n. 26143. AND the dismissal of those who record the conversations of colleagues without their knowledge is legitimate. The Labor Section confirmed the dismissal of a hospital doctor "due to the serious situation of suspicious mistrust and lack of collaboration that has arisen within the plastic surgery medical team". The man, in fact, had been accused of having recorded conversation excerpts from numerous colleagues without their knowledge, thus violating their right to privacy, and then using them in court to support a mobbing complaint, which he himself had presented to the head physician.
- Cassation 7 October 2015 n. 40320/15. There is bullying when a company removes the older and more experienced worker from his duties, preferring instead his less trained and younger colleagues.
- Cassation 25 November 2015, n. 24064. It is not mobbing, inactivity due to refusal of new assignments deemed disqualifying. The Labor Section has established that there is no demotion nor bullying where the de facto inactivity of the worker in the company is followed by the refusal of a new job offered to him and the interested party limits himself to inferring that said functions are disqualifying, without making any reference to elements of comparison such as to define the factor prejudicial to the professionalism acquired, since said inactivity cannot then be charged to the employer.
- Cassation 3 February 2016 n. 2116. Asking for overtime and denying holidays is not bullying. The Employment Section once again pronounces itself on the subject of mobbing, outlining its characteristics and limits: an employer who requests his employee to work overtime or refuses to grant holidays cannot be considered vexatious conduct.
- Cassation n. 2920/16. Organizational chaos, stress for the worker: no bullying. The request for compensation brought against the Ministry of Justice by an employee of a "district house", who complained about the precarious working conditions, was definitively rejected. The organizational and managerial deficiencies of the structure are evident, the repercussions on the female worker are also evident, but one cannot speak of mobbing.
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