NEWSLETTER T&P N°39 YEAR IV

AUGUST 2010

NEWSLETTER
Trifirò & Partners Law Firm

Editorial
Our August newsletter tails back into workaday life (even though many of
you are already well into it) and hopes to be the harbinger of profitable
transactions.
There are no new changes in employment legislation and that's why we
have decided to dedicate our Focus section to the legal approach to a
sensitive issue at the workplace, namely, drug-taking. As we all
know, drugs are a pervasive phenomenon, which has spread far and wide
to affect all aspects of social life and to which the workplace could hardly
remain immune to. The consumption and peddling of drugs at the
workplace are still little talked about though they are quite common on
work premises. What's more, drug consumption and peddling do not only
involve employees but also third party, where the business activity entails
contacts repeated and continuous with the public. The phenomenon itself
may not be viewed as separate and distinct from employment relations
because even where work duties are duly executed possession and
peddling of drugs still undermines the fiduciary bond, as is, indeed, stated
in the sentence reported.
The Focus section also reports on a recent decision of the Inland
Revenue Service with regard to the tax relief granted night life
retribution.
The “Other Rulings” section reports on a number of cases regarding
employment termination issues and issues concerning employee
re-integration.
CONTENTS
The Focus section of Civil Law is dedicated to a decision concerning
✦ EDITORIAL the statute clause “simul stabunt simul cadent” that implies the fall
of the Board of Directors where there is a cession of the minority.
✦ EMPLOYMENT LAW
The “Information Brief” examines a decision of the Authority on the
✦ FOCUS 2 Guarantee of privacy on employees access corporate email
services and protection of privacy, a still hotly and fiercely debated
✦ FIRM CASES 4 issue whenever it comes to bringing together contrasting interests and
protecting exigencies of third party and personal.
✦ CIVIL LAW, COMMERCIAL,
INSURANCE Stefano Beretta and the editorial staff: Stefano Trifirò, Marina Tona,
Francesco Autelitano, Luca D’Arco, Teresa Cofano, Claudio Ponari,
✦ FOCUS 6 Tommaso Targa and Diego Meucci

✦ INFORMATION BRIEF 7 This is an abridged and edited version in English of Trifirò & Partners
newsletter. If you wish a full-length English translation, please contact
✦ CONTACTS 9 Stefano Trifirò: stefano.trifiro@trifiro.it or newsletter@trifiro.it

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 NEWSLETTER T&P N°39 YEAR IV PAGE 2

Employment Law
Focus
DISMISSAL - FAIR WAY - RELEVANCE OF CONDUCT OUTSIDE
WORK HOURS (Tribunal of Lanciano, 9 April 2010)
By Mario Cammarata
An employee, who worked at the time at a factory, was checked by a police control who found in the
car of the employee a quantity of substances (hashish and marijuana).
Thereafter, the police decided to search the domicile of the employee and found in the kitchen a relevant
quantity of substances in a box, as well as a precision scales and a diary containing cash and the names
of contacts who likely purchased the substance, as well as a detailed book keeping of the transactions.
The police placed the employee under custody and, subsequently, the judge confirmed the arrest of the
employee and his transfer to prison.
The company followed the procedure and, after submitting its grievances, proceeded to dismissal fair
way, considering that possession of drugs in quantities far superior to what daily use may require as
indication of possession for peddling (further illustrated by the instruments found at the domicile of the
employee and the agenda with the names of probable clients) and, mainly, the substantial quantity of
drugs found in the car, as the employee was on his was to work, broke the fiduciary bond that underpins
work relations.
The dismissal was challenged in court by the employee, who claimed such facts were extraneous to work
relations and who said, in addition, that his employer should have, in any event, await for the outcome of
the trial to take disciplinary action.
The Tribunal rejected the petition of the employee and confirmed the dismissal. The sentence
mentions the fact that the employee had been found in possession of a substantial amount of
substances, one part being stashed in his apartment and the other part being transported in his vehicle
on the way to work. The judge pointed out that the quantity discovered, the scales of precision the diary
with the names and the amounts of money were indications of a possession for the scope of peddling
also “with the risk of spreading substances on the premises of the workplace”.
As a result, and though as a matter of general rule conduct outside workaday life is irrelevant in
affecting fiduciary trust, the Tribunal stressed that “in specific cases, facts or conducts apparently
extraneous to the contractual sphere and usually associated with the private life of the employee may
adversely affect the fiduciary bond and may be invoked in support of the claim of fair cause”.
According to the judge, “the fiduciary bond is, indeed, such, because it legitimates determinate
expectations from the one party as regards the conduct of the other party and therefore - especially in
long-lasting relations, where such element acquires even greater relevance - necessarily implies
favourable expectations with regard to the due performance of all the obligations that flow from such
contractual bond”. In the case in hand, all the elements unveiled were such clear “evidence as could only
fuel the fears of the community regarding the spread of drugs at the workplace, particularly since drugs
had been founds in the vehicle of the claimant on his way to work”.

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 NEWSLETTER T&P N°39 YEAR IV PAGE 3

In addition, and with regard to the fact that the company should have awaited the outcome of the criminal
proceeding, the Court pointed out that this is not necessary, in view of the “absolute independence
between civil rulings and criminal rulings”. That is why, objective and subjective elements that are part of
the accusation in a civil case may be valuated separately, without necessarily expect first the conclusions
of the criminal proceedings.

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 NEWSLETTER T&P N°39 YEAR IV PAGE 4

Firm Cases
RULING OF THE MONTH
REFUSAL TO CARRY OUT PERFORMANCE AND DISMISSAL FAIR WAY
(Tribunal of Rome, 9 June 2010 )

In line with a court decision which had ascertained the illegitimacy of a dismissal, a
company had taken steps to re-integrate the worker involved in the company, informing him
of the date and place where said worker would have resumed his work. The worker, in spite
of the invitation, did not show up to work, alleging ill health (on that score, a medical
certificate was timely submitted). On the new date fixed for re-integration (upon end of
malady), the worker yet again did not show up for work and, despite, repeated invitations
from the employer, did not come up with any explanations nor did give notice of himself.
Thereupon - after waiting in vain for information from her own supplier of labour - the
company listed as grievances repeated unjustified absences for a substantial number of
days (40 in all) and proceeded to dismissal.

The worker petitioned the court to ascertain the illegitimacy of the dismissal, on a number of
grounds, arguing that a) the female employer had failed to pay him the monthly
compensation he was entitled to for damages incurred from the first dismissal; b) re-
integration had taken place at a new and different workplace; c) retribution had fallen short
to to cover the time from re-integration to that date when he had remained absent for
malady. According to the employee, these reasons justified both. For their retaliatory nature,
his refusal to carry out the performance expected him and the illegitimacy of the dismissal.

The Tribunal of Rome rejected the arguments listed above and, firstly, rejected, absent any
evidence, the claim of reprisal or retaliation as cause to the dismissal proper. The Tribunal
also rejected the argument of refusing to carry out duties on the pretext that the other party
had not discharged its obligations, in the first place because “there is no reciprocal tie
between the obligation of the company to execute the order of compensatory payment she
was condemned to by the sentence that declared the illegitimacy of the dismissal, and the
obligation of the worker to carry out his duty. The damage compensation obligation has its
source in the condemnation itself and not directly in the relation extant between the parties”.
As regards the claimed failure to pay retributions accrued from the date of re-integration, the
Tribunal of Rome, pointed out that the worker had at no point mentioned such piece of
evidence, neither during the work relationship, and “not even subsequently to the letter of
grievances…where he was specifically being asked to bring forward the reasons for being
absent from work. Therefore, such claim for non-retribution could hardly be propounded
subsequently to the lawful petition of a right to non-performance, which presupposes
specific notification to the non-performing party of the intention to exercises the right of non-
performance as promisee. This in virtue of the principle of proper conduct and bona fide,
which must preside over the execution of contracts”.

(Counsel: Orazio Marano)

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 NEWSLETTER T&P N°39 YEAR IV PAGE 5

OTHER RULINGS
EXPIRY OF RE - HIRE TERMS IN DIFFERENT WORK LOCATION - LEGITIMACY
(Tribunal of Trani, 20 July 2009)
Where termination of employment contract occurs upon expiry of the contractual terms agreed upon, the employee
who challenges the legitimacy of the scheme may not as a prerequisite refuse the offer to be re-employed by the
employer, even where such offer provides for a workplace different from the first.
In such case, indeed, the broader picture of the company needs to be taken into account, inclusive of economic
downturn and closing down of the production unit where the employee previously worked.
By refusing to even answer the offer of the employer to a different posting, the conduct of the employee amounts to
questioning the lawfulness of the fix terms contractually agreed and, by the same token, outlines the contours of a
new occupation, that incorporates the subject matter of employment contract termination by mutual consent,
regardless of the reasons alleged against legitimacy of terms or blatant errors in the clauses of the contract, by
referring to the specific absence of a cause pursuant to art. 1 of the Legislative Decree 368/2001.
(Counsel: Tommaso Targa)

TRANSFER OF UNDERTAKING - REINSTATEMENT - EXCLUSION

(Tribunal of Milan, 9 February 2008)
A transfer of undertaking modifies the import of the work performance and consequently terminates the employment
relation as a result of a supervening impossibility that renders performance of work impossible, pursuant to art, 1463
and 1256, civil code, with the consequence that within the ambit of real protection, in case of unlawful dismissal, the
judge may not provide for the reinstatement or re-integration if, in the course of the steps and delays of the
proceedings, the company has closed down. Whereupon, the judge, in the case at hand, provided for the liquidated
damages amounting to 5 monthly wages of global retribution as at art. 18, §4, Legislative Decree #300/70, as the
case was distinct and separate from the terms under §1.
(Counsels: Mariapaola Rovetta and Stefano Trifirò)

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 NEWSLETTER T&P N°39 YEAR IV PAGE 6

Civil, Commercial and

Insurance Law
Focus
INSTRUMENTAL USE OF MINORITY CLAUSE FOR THE SCOPE OF
UNFAIR REVOCATION OF MANAGING DIRECTOR - NECESSITY TO
MOTIVATE REVOCATION RESOLUTION
(Tribunal of Monza, 5 July 2010)

By Salvatore Trifirò, Francesco Autelitano and Jacopo Moretti

The former managing director of a joint-stock company brought action against the company itself,
claiming that his appointment had been discontinued on unfair grounds, by resorting to a distorted use of
the statute clause that enables the stepping down of a board executive where there is cession of minority.
The plaintiff asked for damage compensation. The plaintiff claimed that he had been removed in advance
from his mandate as a result of the resignation of other two members of the Board of Directors of the
company, the subsequent expiry of the managing body and the concurrent appointment of a new Board
of Directors. All of this in concurrence with the cession of the quote of the members of their quote of
participation to another stock company set up ad hoc and with the majority participation of one of the
Directors and after having so proceeded, moved at once thereafter, and upon suggestion of the latter, to
progressively discharge him of his duties and deny his legitimacy.

The company claimed that the failed confirmation of the plaintiff on the Board of Directors was in itself
justified by the changes of the controlling members of the company itself, which circumstance was
evidence enough to affect the fiduciary bond which, in any event, had been irreparably affected by a
number of episodes which had immediately compromised the relation between the former managing
director and the new partner.

The Tribunal of Monza accepted the arguments of the plaintiff pointing out that:

✦the instrumental use of the clause “simul stabunt simul cadent” (freely translated: “cession of
minority makes the head of the Board fall”) gives rise to compensatory responsibility, pursuant to
art. 2383, §3, civil code and 1725;

✦revocation fair way of managing director occurs where there is clear statement of said in the context
of the decision of the assembly that resolves to revoke, as no after-the-fact integration may occur in
a legal court, which is what actually took place in the case at hand, where the assembly of partners
had expressed no motivation whatsoever of the act of revocation of the plaintiff, implicit in the
decision to set up a new Board of Directors from which he would not be member.

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 NEWSLETTER T&P N°39 YEAR IV PAGE 7

Information Brief
By Vittorio Provera

ACCESS TO INFORMATION AND PROTECTION OF PRIVACY

We have already addressed not a few times the directives issued by the Authority on privacy and
regarding the use by corporations of informatics and emailing systems, the limits set to the powers of the
employer to use such means of information and communication, and the preventive regulations and other
aspects.

The Authority on privacy has now come up with a new decision, issued January 2010, and which
may be found posted on the site of the Authority. The notice refers to the case of an employee
dismissed after a particularly untoward incident and who had been accused of being overly flirtatious and
blatantly sexually provocative towards the General Director of a company she worked for.

In order to illustrate the type of conduct adopted by the employee and that had led to the dismissal, the
company provided a number of scheduled emails it is said were sent by the employee, as well as pictures
in graphic poses which - according to the company - said employee had deliberately left on the desk of
the Managing Director. In such context, and regardless of the procedural steps attached to the
challenging of a dismissal, the female employee had submitted a specific request under art. 7 of the Code
of protection of personal data (Legislative Decree 30 June 2003 # 196) aimed at accessing all information
cited in the disciplinary letter of grievances, as well as those contained “in the others (….) e-mails and
which the former (that is, those petitioned against - lawyer's note) were the process in terms of
development”.

In other words, it was requested to access the corporate email system to verify the exchange of
messages in some close or distant manner connected with the event. The employee denied the claims
levelled against her and contended that she had been subject to unsolicited advances from her peer who,
for instance, wanted to access all the emails that she sent to the same address and in particular all such
messages as might prove useful for defence in court.

The company had answered to such request by making clear she was not in possession of the nude
pictures of the employee, nor of emails contained in the letter of grievances, communications, pointing
out that the company “is unaware of the fact whether said pictures were sent by an electronic corporate
email account”. Also, the company questioned the admissibility of the request access all the in-coming
and out-going emails on the former computer's employee, which had been issued to her, since she had
not demonstrated such e-traffic was subject to treatment of personal data. No ground, instead, could
justify unfettered access to internal corporate correspondence, sent for day-to-day and company
management.

On such a backdrop, the Authority for the protection of privacy reiterated a number of principles
already expressed in previous decisions.
Firstly, electronic correspondence having for purpose the running of the works or other issues
(between peers, co-workers or persons external to the company) sets up a “familiar” stream of
information that may contain personal data pertaining to the person concerned, and are rather
familiar to all others involved. This was signally made even truer, in the case at issue, there existed an
individualized email address for the company that only gave general details about staff, in addition to the
name of the company. Protection was nonetheless available to the company to access to the personal
data contained in in-coming and out-going corporate emails from the corporate email address and
present on the computer in use by said or by server.

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 NEWSLETTER T&P N°39 YEAR IV
Link: www.garanteprivacy.it
Access to information and
protection of privacy - 21/01/2010
However, this right must have its own restraint
wherever a legitimate expectations, from third
party, of confidentiality towards particular forms
of conversation, in such manners where
extrapolation from personal data requested
from the dependent of the Archives to the
Company might trigger the risk of a breach of
the principle of relevance and an excess in
treatment of data. Indeed, the employer
himself, in such context, could come to the
knowledge of information having no bearing in
the case.
Such right, however, must be calibrated to a
legitimate expectation also from third part, of
confidentiality with respect to some forms of
communication, and in such manner that the
extraction of personal data requested by the
employee from the archives of the company
should not violate the principle of relevance and
non-excess in data treatment. Such form of
treatment, indeed, could lead the employer
TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO
PAGE 8
himself to access knowledge and information
that are neither pertinent nor coonected to the
activity under way.
The Authority accepted the request of access
of the former dependent, setting out that the
possibility to have access to the personal data
that concerned her and that were stored in her
out-going and in-coming email box, which
could also be transferred on printouts for all the
data that regarded her and were stored in her
correspondence.
Yet, the Authority required the necessity for
such operations to be conducted in the
presence of the director of the system or of
personnel, appointed especially by the
company, to ensure confidentiality and
relevance of the access operations.
✦In short, the decision affirms, on the one
hand, the worthiness of protecting a
specific request of an employee to access
e l e c t ro n i c m a i l e x c h a n g e d b y s a i d
employee within the premises of the
company, insofar as it contains in any way
personal data (and might besides be an
exercise of the right of the defence art. 24
Constitution).
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Trifirò & Partners has its head office in Milan and branch
offices in Rome, Genoa, Turin and Trento. Founded in the
sixties by Mr. Salvatore Trifirò, it now numbers 80
professionals and staff-workers coordinated by the Partners.
Trifirò & Partners is the foremost firm in Employment Law and

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