CORPORATE INFIDELITY
Employee infidelity, corporate espionage, absenteeism. These are all activities that DBD investigations, Dr. Di Bari Diego can identify with targeted investigations, producing, at the end, concrete and incontrovertible evidence.
SOME EXAMPLES OF INVESTIGATIONS
For what purposes they can be requested
INFIDELITY OF THE EMPLOYEE
An employee's infidelity can be expressed in multiple expressions. It can disclose business plans, industrial secrets to competing companies, it can discredit the employer company, thus favoring competing companies, etc. The duty of loyalty on the part of employees is enshrined in Article 2105 of the Italian Civil Code, which prohibits the employee from conducting business on their own or on behalf of third parties, in competition with the employer and also from disclosing information relating to organization and production methods of the enterprise, or make use of them in such a way as to be prejudicial to it.
CONTROL AGENTS
By the very nature of their important work, agents are more exposed to the risks of incurring episodes of infidelity towards the company for which they operate; customer portfolios are often created that they feel are their own rather than belonging to the company, establishing a trusting relationship with customers and often in person. Preventing the risk of sudden customer bleeding is as important as understanding whether there is underlying behavior that is unfair or even detrimental to corporate interests.
MORE INFORMATION
EMPLOYEE ABSENT DUE TO ILLNESS: IN ADDITION TO THE CHECK-UP VISIT THAT THE EMPLOYER CAN MAKE?
Law 104, legitimate dismissal if the assistant does not cover the entire period of leave
Illness, law 104 permits and parental leave used improperly: can the employer use the photos posted by the employee to fire him? If the employee, absent due to illness, posts photos on Facebook that see him portrayed in a disco with friends, what can the employer do in addition to sending him the INPS checkup? If the company is aware that, beyond the on-call time, the sick person leaves the house and goes around enjoying the days off, can they fire them? The problem of the control of negligent workers at work, who abuse permits and sickness for purposes other than those established by law, has entered forcefully in the courtrooms. Not a few judges - including the Supreme Court - found themselves deciding the fate of the workplace of those who took advantage of the permits of law 104 to take a break from the frenetic pace of the office or those who used an extension of the illness to bridge and go on a pleasure trip. The unanimous direction, however, is to consider a just cause for dismissal (therefore, without the need for notice), even the improper use of a few hours of leave or illness: this is because it is not so much the damage to the company. that the absence causes but rather the damage to that relationship of trust that must necessarily exist with the company. “Did you tell me a lie? And I, just for this, will send you back home! ”: This is basically the hard line espoused by the employers and also shared by the judges. The point, however, is the identification of the tools in the hands of companies and public bodies to discover the lies of employees. We will talk about this in the course of the article, trying to clarify whether, in addition to the so-called "traditional" means, the entrepreneur also has other ways of punching the employee.
LA MALATTIA E LA THE ILLNESS AND THE INPS CONTROL VISIT
Surely, in the case of illness, the first thing the employer can do is send the INPS doctor for a check-up. A visit, however, which can only be carried out within certain times, according to the obligation to be on call provided by law (i.e., for public employees, from 9 to 13 and from 15 to 18; for private employees, instead, from 10 to 12 and from 17 to 19). But what happens if the employee leaves the house after being on call? The law does not require the worker to remain confined to his home all 24 hours until complete recovery. In fact, the so-called "on-call" was not created to ensure speedy recovery or to verify that the employee cannot really go to work; it only has the function of allowing the INPS doctor to carry out the check and, therefore, facilitate the task. It is therefore a duty of collaboration with the administration. Therefore, even if the disease is well founded, the patient may very well, outside the hours of the tax visit, leave the house, go to the disco, take pictures and post them on Facebook. The employer could not even ask - at least according to some judges - a tax visit every day since this would excessively compress the freedom of movement of the worker. However, the behavior of the employee during the illness can be equally assessed by the company - regardless of compliance with the availability of the tax doctor - as a cause for dismissal if, by doing so, he jeopardizes his speedy recovery. This means, in practical terms, that if he is absent due to a fever and nevertheless goes out with friends in the evening, perhaps getting worse, he can be fired. Similarly, anyone suffering from low back pain and seen driving a car - an activity that, as we know, involves additional pressure on the sciatic nerve - would be equally guilty. To answer, in conclusion, the question posed at the start: the employer has no other means than the tax visit to force the employee to stay at home; however, if this does not happen and the latter affects his recovery, he can still be fired...
HOW TO PROVE THAT THE SICK WORKER LEAVES THE HOUSE?
It is clear that the employer, who wishes to proceed with the dismissal in such cases, will also have to demonstrate the employee's activity incompatible with the disease. To this end, the means of proof can be extensive: the private detective is the one who, in recent times, is the most fashionable. But also the testimony or the photograph taken by the colleague. And also the shot posted on Facebook by the same unwary employee. These are all evidence that can be used in the event of a disputed dismissal.
ABUSE OF THE PERMISSIONS OF THE LAW 104
The same applies in the event of abuse of the permits of law 104 or the use of parental leave for purposes other than those of looking after the offspring. Art. 2118 of the Italian Civil Code establishes that each of the contracting parties may withdraw from the permanent employment contract, giving notice within the term and in the manner established by collective agreements, customs or according to equity. The legislator has established that the employer can dismiss ad nutum (ie without any motivation) only in cases of just cause or justified reason. The dismissal for just cause, governed by article 2119 of the civil code, is ordered if the worker is guilty of such a serious fault as not to allow the continuation, not even temporarily, of the employment relationship: in this way the effects are immediately interrupted of the employment contract stipulated between two subjects.
LAW
This form of dismissal for just cause is better known and better known also with the common meaning of "dismissal in the trunk": it is in fact the most radical measure that the employer can take towards the worker and therefore it is necessary that the conduct of the latter is of extraordinary gravity, and moreover damages the relationship of trust between the parties. The jurisprudence on the matter is still doubtful, but in general it is believed that the conduct that can lead to dismissal for just cause can be included in the repeated refusal to perform the work performance, in the theft or destruction of company assets and in the commission of serious crimes. The seriousness of the conduct maintained by the worker must also be assessed in relation to the role covered by the employee within the company. Then there is the dismissal for justified subjective reason: it depends on a non-fulfillment of the worker with respect to his obligations, but this non-fulfillment is not so serious as to lead to an immediate interruption of the relationship; examples of reasons that can lead to dismissal for justified subjective reason are repeated disciplinary offenses, fights in the workplace and abandonment of the workplace. It is also the collective agreement that sometimes specifies which conducts are liable to dismissal for justified subjective reason. In these cases, the worker removed from the workplace is guaranteed notice, with a variable term according to the provisions of the collective agreements of the sector.
COMMUNICATIONS
Whatever the cause, the dismissal must be strictly communicated in writing, through the mechanism of the registered letter by hand, countersigned by the worker, or by post, using the registered letter with acknowledgment of receipt. However, the dismissal can be vitiated by some particular elements that make it illegitimate: first of all, it can be non-existent if, for example, it is communicated orally; it may be ineffective for violation of art. 2 Law 604/1966 (lack of written form of the motivated communication or lack of written form of the communication of the motivation upon request made by the dismissed employee); the dismissal can also be annulled as it is notified without just cause or justified reason (articles 1 and 3 of Law 604/1966), and finally null, if determined for reasons of political belief or religious faith, by belonging to a trade union and from participation in trade union activities, or in a strike (discriminatory dismissal pursuant to art. 15 letter b), or in the case of disciplinary dismissal, as notified in violation of the guarantees provided for by the first three paragraphs of art. 7 of the Workers' Statute. If the worker deems the dismissal illegitimate, he may avail himself of the appeal of the dismissal, which must be presented within the peremptory deadline, established by law, of 60 days, starting from the notice of the dismissal (deadline). The appeal does not require any solemn form but it is sufficient that the worker, or the trade union, or the lawyer in charge of assistance expressly communicate their will to challenge the employer's provision. Failure to appeal the dismissal within the deadline does not imply the lawfulness of the employer's withdrawal, but only precludes the worker from reintegrating into the workplace and compensation pursuant to art. 18 of the Workers' Statute. Subsequently, the worker has two alternative procedures available: try the path of conciliation or arbitration with the employer, within 270 days from the appeal date; if the conciliation is refused or does not lead to an agreement, the worker then has 60 days to lodge an appeal; the worker may, alternatively, lodge an appeal directly, within 270 days from the appeal of the dismissal. The attempt at conciliation, imposed as mandatory by law 604/66, was made optional starting from 2010: in this case it is a question of promoting, before the Provincial Labor Directorate, an attempt at conciliation, which is considered to have been carried out in the case in which the Conciliation Commission does not schedule a hearing between the parties within 60 days of the presentation of the related request. The employer, for its part, must demonstrate the legitimacy of the dismissal, and therefore the unlawfulness of the worker's conduct. Furthermore, if dismissal for just cause has been ordered, the employer must also demonstrate that the offense did not allow the continuation of the employment relationship, even temporarily, and that therefore it was not possible to take the path of dismissal for justified subjective reason. The worker, for his part, if he requests compensation for further damages than canonical ones (for example damage to image or professionalism) must provide the relevant proof in court. If the hypothesis of non-conciliation arises, the worker will have 5 years from dismissal to initiate judicial action (limitation period): in the latter case, the assistance of a competent lawyer is evident and necessary, which assist the customer with competence and professionalism to obtain full satisfaction of the required needs. The Minelli Vancini lawyer associated law firm, located in via Ragazzi del '99 in Bologna, has for years gained experience in the field of labor law and dismissal cases, and in particular deals with the challenge of null and / or dismissal illegitimate due to the absence of just cause or justified reason, of the management of out-of-court negotiations in the presence of a potentially unlawful dismissal and of the advice given in favor of the employer to verify ex ante the legitimacy of a dismissal that is about to be intimated. The protection that the legislator provides for the worker is of two types: real protection (job retention and / or compensation) and mandatory protection (re-employment of the worker and compensation). If the unlawfulness of the dismissal is granted by the competent Judge, the worker can in fact opt for two alternatives: he can ask to be reinstated in the workplace and at the same time request compensation equal to the sums he would have received from the dismissal until the actual reinstatement in the workplace. workplace, in addition to the payment of welfare and social security contributions; or he may alternatively ask, in place of the reinstatement, for compensation equal to 15 months of the last de facto global salary. If the worker cannot invoke the application of the Workers' Statute, the employer can choose to re-hire (ex novo, therefore) the employee (within 3 days from the publication of the sentence) or to pay him the compensation established by the Judge, variable from 2 , 5 and 6 months of the last overall salary in fact, depending on the length of service, the behavior of the parties and the size of the company (with seniority over 10 or 20 years the sentence may provide for compensation of up to 10 and 14 months of the last de facto global salary). In the first case, the Judge will order the worker in the workplace, provided for by art. 18 of the Workers' Statute (amended by Law no.108 / 1990) towards employers, entrepreneurs or not, who employ more than 15 employees (5 if agricultural) in each production unit: headquarters, factory, branch, office or autonomous department, where the dismissal took place, or more than 15 employees (5 if agricultural) within the same Municipality, even if each production unit does not reach the limit, or finally more than 60 employees overall if in the production unit concerned are fewer than 16 employees employed. In addition to reinstatement, unlawful dismissal obliges the employer to compensate the worker for the damage suffered. This is constituted by the payment of the de facto global salary, not less than 5 months, that the worker did not receive, from the day of dismissal until the day of actual reinstatement. This compensation also provides for the payment of welfare and social security contributions. However, the worker can renounce reinstatement and ask in exchange, within 30 days of the invitation to resume work, an indemnity, equal to 15 months' wages, without prejudice to the right to compensation for damage. In the second case, however, there is an obligation to re-employ the worker, provided for by art. 2 L. n. 108/1990 (which expanded art.8 of Law 604), which is ordered by the judge against employers, entrepreneurs or not, who employ up to 15 employees (5 if agricultural) in each production unit or up to 60 employees in total if fewer than 16 employees are employed in the production unit concerned. Furthermore, in the case of unlawful dismissal, the legal costs are usually anticipated by the parties and the Judge guarantees the reimbursement of his own to the victorious party. The Minelli Vancini lawyers associated law firm, located in via Ragazzi del '99 in Bologna, offers assistance for cases relating to labor law, and in particular for the challenge of dismissal, the challenge of disciplinary sanctions, bullying and other discriminatory behaviors, the ascertainment of the employment relationship, the wage differences, the change of duties, the non-enjoyment of holidays or leave, the resignation, the project collaboration contracts, the safety and hygiene of the working conditions.