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Association participation and employment relationship

Even under the association in participation, the provision for a minimum fee in a fixed amount not is deemed incompatible with the specific case of contract and is not in itself a symptom of a disguised employment relationship.

must also come to that conclusion on the basis of the provisions of art. 86, paragraph II, Leg. September 10, 2003 No 276, which requires participation in the associated all'associante to provide "adequate supply".

In case law: " On the subject of joint ventures, participation in revenues and losses, the respect of working hours in the absence of guidelines, however, about the same and the guarantee of a minimum gain does not apply to exclude a associative relationship. The parties are free to determine the economic participation of the Association who may well be only commensurate with revenues, because even in this case the member, on the one hand, certainly runs the risk of business and, not least the identity of interests between the parties that distinguishes and differentiates' partnership by the employment relationship. There is no doubt, in fact, that even the participation in the revenues there's still a direct involvement in the fortunes of the associated company, since the member who works in a company with negative results is still subject to wider an economic risk "(Supreme Court Civil, sec. lav., February 18, 2009 No 3894 ; Conform: Civil Cassation, sez. lav., April 18, 2007, No 9264, that " the contract of association under Article. 2549 cc, not ostandovi no incompatibility with the type of negotiation, participation in profits and losses may result from the association, as regards the former, in participation in global economic revenue of the company or those of the individual business, so in that no side is irrelevant qualifiers for the reference of the parties to the profits of the enterprise or from the revenues of individual business, and, with regard to the second , in an amount designed to provide, in addition to profit-sharing in the profits is also a fixed fee (to be recognized in each case the associated), the price is not compensatory and work performance, however, not commensurate with the criteria laid down in Article parametric. 36 cost .. )

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Muffin * _ *

I met a wonderful new person * _ * What
with my friends I call "The other me" because I like a lot, even though we have good views of the differences are very deep and important (she listened to Michael Jackson and I watched the Gals, but heck, Ran has been drawn to my image and likeness!)
This wonderful person I call Muffin [not explain here why, and then you know they are stupid so do not ask why]. Basically a good girl (as I can be myself. No, do not laugh.), Kind, cheerful, funny, extrovert, who loves manga, anime, the show has all the links to everything you can and above all I want taught to look up and streaming codecs. (If you read here, I'm kidding dear. It is not for the codecs. E 'for your curls, I still curl friends of nature).
for me is already a big family. So I know myself, and I know that I flair. In addition to being obsessive and to invade the lives of others by force that they like it or not, so I decided from the start that she was my friend and so was / is / will be.
means that the historical group fell apart? For me, no.
The historical group: me, Jen, Sorry, Lyse, Nen, we are always together after high school, in the face of those who said that after graduation each would take its own path. And that sucks, of course each has his way, but that does not mean, however, can not be mentally close to the other! And then we live in the age of computers, msn, mobile phone, so it feels, and if you feel you think about it, and if you do not think it is always tied till death do us part, and you can kiss the bride. And if there is any dispute among the members as it happens from time to time, I think, however, the historical group exists within us. And what arguments or not we can not do just to be less than one. (Before I fell on the church, now at Twilight)
This post slightly loses meaning to every sentence, I realize, but I'm doped up to the orange juice and sleeping off a hangover. They are also happy to have a new member in the family. Already there were
Recchan and Akama, and then Luly and Whish, and the usual Ramos, Ramosaboyfriend, Ramosaboyfriend and their brother and my best friend B, and will continue to add.
The group always has a historical place all to himself, a sort of home movie in my head with his first steps or turn the candles on the cake, but now has grown, and there will be room for new people. Certainly, the historical group and the five of us will always be enough, but my family is something more.
was a long time that I wrote and it seems only fair to hear from me more than these:
-health: sucks.
-biological family: it survives when MadrePinna decides not to denigrate and PadrePinna ceases to exist only as the father of my brother to pull off one of his pearls [while writing MadrePinna obviously reappeared to break] and annoy me.
-Love: Hahahaha.
-Friendship: already wrote above.
-Work: a silly 21 do not deserve because I should take more.
What else?
Oh, yes, a photo of the new member :


Is not she lovely?

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Failure to appeal against the dismissal shall exclude the Recoverability even according to ordinary rules

" the unlawfully dismissed employee who did not challenge the termination in the short term provided for that purpose by law (60 days) is not due any compensation. The decline dall'impugnativa, in fact, prevents the employee to claim compensation under the rules codicistiche ordinary to the extent that does not allow the courts to establish the illegality of the expulsion penalty. If that burden is not fulfilled, the court can not know of the illegality dismissal even to reconnect itself, withdrawal effects of common law damages "(Civil Cassation, sez. lav., May 4, 2009, No. 10235, in accordance with Civil Cassation, sez. lav., June 10, 2009 No 13,580, click Help at Work 31 / 2009, with a note of Toffoletto; against: Civil Cassation, sez. lav., October 12, 2006 No. 21833, Civil Cassation, sez. lav., January 10, 2007 No 245).

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Dismissal for just cause and proportionality manager

" In the case of dismissal for cause, for the purposes of proportionality between the fact and charge termination, consider any behavior that is, by its gravity, is likely to shake the confidence of the employer and suggest that the continuation of the relationship will be resolved in an injury to business purposes, being decisive for the assessment of proportionality, the influence on the employment relationship is able to exercise behavior of employees who, because of its concrete mode and the frame of reference, appears likely to question the fairness of performance and future indicates a disinclination to diligently implement its obligations, to behave according to the canons of good faith and honesty. It is for the trial court to assess the appropriateness of the sanction of expulsion is not based on an abstract assessment of the fact charged, but taking into account all aspects each concrete case, in the light of a unified and systematic appreciation, it is clear indication of its severity compared with a useful continuation of the employment relationship, allocated to it pre-eminent importance to the configuration of the alleged deficiencies do collective bargaining, but also intensity intentional element, to the confidence required of the tasks performed by the employee, prior to implementation of the report (and in particular its length and lack of prior sanctions), to its particular nature and type " (Court of Cassation, section work, June 22, 2009 No 14586). With
cited, the Supreme Court ruled that can not be fired the employee who departs without permission from the workplace, if this is the first breach of discipline during his career. E 'nullifying the purpose of assessing the proportionality between charge and sentence, the impact that the conduct of an employee is able to carry on the employment relationship, putting in doubt the future of compliance and fairness which indicates a disinclination to carry out diligently obligations with diligence and honesty. Thus, a long length of service, accompanied by a pipe with no previous disciplinary records, is a valid prognostic tool for the correctness of future performance.

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Law allowance in lieu of leave not taken

The Supreme Court has clarified that the principle of law expressed in the past by the same Supreme Court that " the executive, who had the power to claim the holiday period without any interference by the employer, not exercises the same power and therefore does not take advantage of the annual period of rest, is not entitled to the allowance in lieu of leave not taken, unless he proves the recurrence of business needs the most exceptional and objective impediments to the enjoyment that "(Supreme Court Civil section work, June 7, 2005 No. 11786 and Civil Cassation, section work, August 27, 1996 No 7883) does not imply the existence of a presumption of a fully autonomous decision-making for all the leaders of the "if and when" take the leave, having to check each case the existence of such autonomy (Civil Cassation, section work, June 13, 2009 No 13,953) .

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declares that Article. 4-bis of Legislative Decree no. 368/01 on fixed

The Constitutional Court, in sentence no 214, 8 July 2009, filed July 14, 2009, declared the constitutional illegitimacy of article. 4-bis of Legislative Decree No 6 September 2001 368, by contrast with Article 3 of the Constitution.

follow the relevant steps of the award.

JUDGEMENT NO 214

YEAR 2009

ITALIAN REPUBLIC ON BEHALF OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

- President Francesco AMIRANTE

- Ugo DE Judge Siervo

- Paolo MADDALENA "

- Alfio Finocchiaro"

- Alfonso FORTY "

- France Gall"

- Luigi Mazzella "

- Gaetano SILVESTRI"

- Sabino Cassese "

- Maria Rita Saulle"

- Tesauro "

- Paolo Maria NAPOLITANO"

- Giuseppe FRIDGE "

- Alessandro Criscuolo"

- Paul BIG "

gives the following

JUDGEMENT

in the judgments of the constitutionality of Article. 2, paragraph 1 - bis of Legislative Decree No 6 September 2001 368 (Implementation of Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by UNICE, CEEP and the ETUC), Articles. 1, paragraph 1, and 11 of Legislative Decree 6 September 2001, No 368 and art. 4 - bis of legislative decree, introduced by art. 21, paragraph 1 - bis of Decree-Law of 25 June 2008, n. 112 (Urgent provisions for economic development, simplification, competitiveness, public finance stabilization and equalization tax), ratified with amendments by Law 6 August 2008, No 133, sponsored by the Rome Court by order of February 26, 2008 and September 26, 2008, the Court of Appeals by order of October 2, 2008, the Court of Trani, by order of April 21, 2008, the Court of Appeal Genoa by order of September 26, 2008, the Court of Ascoli Piceno by two orders of September 30, 2008, from Trieste, by order of the Court of 16 October 2008, the Court of Appeal of Bari, by order of September 22, 2008, the Court of Viterbo by order of October 10, 2008, the Court of Milan to four orders of November 19, 2008, the Court of Appeal of Caltanissetta by order of November 12 2008, the Court of Teramo, by order of October 17, 2008, the Court of Milan by two orders of December 24, 2008, the Court of Appeal of Venice by order of December 10, 2008, by the Appeal Court by order of L'Aquila January 14, 2009 and the Court of Appeal in Rome by order of October 21, 2008, respectively, registered as Nos. orders. 217, 413, 427, 434, 441, 442 and 443 of the 2008 Register of Orders and paragraphs. 4, 12, 22, 25, 26, 27, 28, 43, 70, 86, 87, 93, 95 and 102 of the Register of Orders 2009 and published in the Official Gazette of the Republic nn. 29 and 53, the first special series 2008 and nn. 1, 2, 3, 4, 5, 6, 8, 11, 13, 14 and 15, Special Series the year 2009.

[snip]

The facts

[omisiss]

legal considerations

[snip]

5. - With nineteen separate orders, the Courts of Appeal of Turin (order No. 427 of 2008), Genoa (order No. 441 of 2008), Bari (order No. 12 of 2009), Caltanissetta (order No. 43 of 2009), Venice (order No. 93 of 2009) , L'Aquila (order No. 95 of 2009) and Rome (order No. 102 of 2009), and the courts of Rome (order No. 413 of 2008), Ascoli Piceno (ro nn. 442 and 443 of 2008), Trieste (ron 4 of 2009), Viterbo (order No. 22 of 2009), Milan (ro nn. 25, 26, 27, 28, 86 and 87 of 2009) and Teramo (order No. 70 of 2009), have raised questions of constitutionality of Article . 4 - bis of Legislative Decree no. 368, 2001, introduced by art. 21, paragraph 1 - bis of DL 112, 2008.

The contested provision provides that "With reference only to proceedings in progress at the date of entry into force of this provision, and subject to the judgments become final, in case of violation of the provisions of Articles 1, 2 and 4, the employer is only required to compensate the employee with an allowance of an amount between a minimum of 2.5 and a maximum of six months' final total remuneration of fact, having regard to criteria stated in Article 8 of Law July 15, 1966, No 604 (Regulations on individual dismissals), and subsequent amendments. "

The referring court, the premise that, according to the "living law", in case of violation of the provisions contained in Art. 1 of Legislative Decree no. 368, 2001, can be prepared in the conversion of the employment contract for an indefinite period and recognized a claim for redress to the employee full, say the art. 4 - bis of Legislative Decree no. 368, 2001 would violate that Article. 3 of the Constitution, because it is unreasonable source of unequal treatment, since only connected to storm the court when the appeal is upheld, among workers who are in the same factual situation (ro nn. 413, 427, 441, 442 and 443 of 2008, 4, 12, 25, 26, 27, 28, 43, 86, 87 and 93 of 2009); art. 3 of the Constitution, as it introduces a discipline devoid of reason, because: a) intervenes in the relations of private law arbitrarily sacrificing the rights of workers illegally recruited fixed-term benefit from the protection guaranteed by the law applicable at the time of the establishment relationship while helping the employer that gave rise to the unlawfulness (ro nn. 442 and 443 of 2008); b) is no apparent rationale was that the provision does not alter the substantive rule with respect to a class of individuals, reducing the protection while hanging judgments, and its only because you have a pending case (ro No 102 of 2009); c) the open ended nature of the discriminatory treatment simply refers to the slope of the process, and then to a circumstance entirely accidental (ro nn. 22, 70 and 95 of 2009); Articles. 3, first paragraph, and Article 24 of the Constitution because it violates the general principle of legitimate expectations raised by the citizen on the certainty of the legal system (ro nn. 413 of 2008, 12, 22 and 70 of 2009); art. 10 of the Constitution, it violates the principle of equal treatment that is the general principle of international law and community that Italy is committed to (ro nn. 25, 26, 27, 28, 86 and 87 of 2009), the Articles. 11 second period, and 117, first paragraph of the Constitution, because, by reducing the protection previously granted by the authorizing officer workers employed under fixed-term contract, violates the clause 8, paragraph 3 of the Framework Agreement on part-time determined by transposed Directive 1999/70/EC and, consequently, the obligation to respect the legislature's internal constraints deriving from EU and international (ro nn. 442 and 443 of 2008); art. 24 of the Constitution because it undermines the right to defend workers' applicants, depriving them of the possibility of obtaining the benefit of the conversion of the employment contract of indefinite duration, whose prospect had directly affected the exercise of their right of action (ro nn. 427 of 2008, 24, 25, 26, 27, 28, 43, 86, 87, 93 and 102 of 2009), art. 111 of the Constitution, with reference to the principle of due process, because the contested provision is altered during the court proceedings, the substantive protection accorded to the law operated, without meeting appropriate objective or general (ro nn. 93, 102, 2009) ; Articles. 101, 102, paragraph 104, first paragraph Constitution, because of legislative action which involves only a few reviews under way at a certain time without the requirement of abstraction is just the legal rules and assumes a general character provvedimentale invasive scope reserved for the jurisdiction (ro nn. 413 of 2008 and 22 of 2009), art. 117, first paragraph of the Constitution, in connection with the art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (ratified by Law 4 August 1955, No. 848), which prevents the legislature to intervene with ad hoc rules for resolution of litigation in progress (ro nn. 413 and 441 of 2008, 4, 12, 22, 43, 25, 26, 27, 28, 70, 86, 87, 93, 95 and 102 of 2009), art. 117, first paragraph of the Constitution, since the contested provision is a completion or an amendment to the Legislative Decree no. 368, 2001 and therefore application of Directive 1999/70/EC and therefore had to respect the non-regression clause set out in clause 8, paragraph 3 of the framework agreement implemented by the directive (ro nn. 25, 26, 27 , 28, 86 and 87, 2009).

[snip]

5.7. - In about the issues raised in relation to art. 3 of the Constitution by the Courts of Appeal of Genoa and Rome and by the courts of Rome, Ascoli Piceno, Trieste and Viterbo are based.

In fact, factual situations identical (fixed-term employment contracts concluded during the same period for the same duration, for the same reasons and with the same vices) are the beneficiaries of various substantive disciplines (on the one hand, as the living law, the conversion ratio in relation to permanent and temporary damages, and second, provision of a modest economic benefits), for the simple and totally random fact of the existence of a trial date (also detached from any justifiable reason) of 22 August 2008 (date of entry into force of Article. 4 - bis of Legislative Decree no. 368, 2001, introduced by art. 21, paragraph 1 - bis of Decree-Law June 25, 2008, No 112).

Such discrimination has no reason, nor is it linked to the need to accompany the transition from a regulatory regime to another. In fact, the intervention of the legislature has not touched the rules governing the conditions for the application of the term or the extension of fixed-term contracts, but has simply changed the consequences of violation of the rules already in force up to a group of cases selected on the basis the fact, entirely accidental, the slope of a litigation between the parties of the employment relationship.

must therefore be declared unconstitutional art. 4 - bis of Legislative Decree no. 368, 2001, with absorption of the issues raised in relation to other parameters by the Constitutional Courts of Appeal of Genoa and Rome and by the courts of Rome, Ascoli Piceno, Trieste and Viterbo.

For these reasons

THE CONSTITUTIONAL COURT

meeting reviews,

1) hereby declares that Article. 4 - bis of Legislative Decree 6 September 2001, No 368 (Implementation of Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by UNICE, CEEP and CES), introduced by art. 21, paragraph 1 - bis of Decree-Law of 25 June 2008, n. 112 (Urgent provisions for economic development, simplification, competitiveness, the stabilization of public finance and tax equalization), ratified with amendments by Law 6 August 2008, No 133;

[snip]

Decided in Rome, the seat of the Constitutional Court, Palazzo della Consulta, on July 8, 2009.

F.to:

AMIRANTE Francis, President

Luigi Mazzella, Editor

Joseph DI PAOLA, Registrar

Filed in Chancery 14 July 2009.

The Director of Stationery

Costumeyour Own Buckle

Proof of harm by

" In the event that the worker suffered a disqualification complaints, the employer is required to prove it is in compliance with its obligation to give your employee duties appropriate to the their professional level, taking also into account that remains firm that the burden of proof even when it is acting not for the determination of total non-compliance, but to ascertain compliance dell'inesatto. verify that it has demotion, the employee has however the burden of proving the existence of damages, whether in terms of equity and non-Annex sets out the circumstances and offers of evidence as to the nature and characteristics of the injury: there is indeed no automatic recognition of a loss against the mere finding of employer "(Court of Milan, March 25, 2009, sent. art. e cpc 281, click Help at Work No 28/2009, with commentary by Andrea bite).

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demotion demotion and the burden of proof of damage

" On the issue of demotion and disqualification, recognition of the worker's right to compensation non-pecuniary damage alleged that it follows - not using automatically in all cases of employers' failure - can not do without a specific allegation in the application instituting the proceedings, the nature and characteristics of the same injury, while the compensation for the biological damage is dependent on the existence of a lesion of 'physical and psychological well-diagnosed, the existential damage (to be understood as any injury, non-emotional and purely internal, but objectively ascertained, caused the areddittuale to the subject, which alter its habits and its relational structure, causing it to different life choices than the expression and realization of his personality in the world) must be demonstrated in court by all means allowed under, assuming primary importance, however, the test assumptions, so the overall assessment of specific points made (characteristics, duration, severity, knowability inside and outside the place of work ' deskilling made, out of frustration and reasonable expectations of professional progression, adverse effects deployed in the lifestyle of the subject) can, through a prudent assessment, in line back to the unknown fact, namely the existence of the damage ( Supreme Civil , sect. lav., December 19, 2008, No. 29832 ).

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demotion and outsourcing services

"The provision of Article . 2103 cc on the regulation of worker's duties and the prohibition of the declassification of these tasks should be interpreted - because of the rulings referred to the decision of the Joint Sections No 25033 of 2006, consistent with the rationale underlying the numerous interventions in the legislature - like the rule of balancing the right of the employer to pursue productive and efficient business organization and that of the worker to reserve their position with so that in the cases have arisen and legitimate business decisions, involving the outsourcing of services or their reduction as a result of corporate restructuring or conversion processes, the worker's adibizione to different tasks, and also lower than those previously undertaken, the level of pay remaining the same, it is at odds with the dictates codicistico, if it represents the only viable alternative in lieu of dismissal for a justified objective reason (the principle stated in this case dependent on post) "(Civil Cassation, sez. lav., 05 April 2007, n. 8596).

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Burden of proof on the demotion

" On the issue of demotion and its burden of proof, the employee can respond to management power exercised unlawfully looked forward to assuming the facts times to justify the complaint and, therefore, with a burden of allegation significant issues of fact for the unlawful exercise, while the employer, sued, is to take place, precisely and not merely a general dispute about the facts forming the basis of the claim by the employee (art. 416 CCP) and can attach other, indicative, conversely, the legitimate exercise of managerial power. (In this case, the SU have confirmed the decision of the territorial court had found no basis for the application of the worker for the "lack of any allegation as to the nature of demansionante work tasks related to the specific task") "(Civil Cassation, sez. A ., 06 March 2009, n. 5454).

Article. 2103 Civil Code, provides that the employer, in exercising its executive power, may bring the contents of the obligation concerning the worker's job performance.

The exercise of this power is subject to a debt instrument that paid by the employer is required to bring the work performance of the employee, who has a right to do so, so that the failure to assign tasks constitutes a failure to ex if that obligation with respect to which, when attached by the worker, who was (illegally) free of duties in support in the event of a claim, no burden of proof rests on the latter, with its reference to cases of idle worker, and then attached to the employer's alleged failure to exercise of managerial authority see Cass., Sec. lav., March 6, 2006, No 4766, who said that instead the employer bears the burden of proving that it has fulfilled the obligation of complying with the instrumental work performance of the employee with the allocation of tasks.

When no verse in the case of exercise of the power steering but not distorted or unlawful use of it by jus variandi decisive demotion or deskilling of tasks, the employee may react unlawful exercise of that power attach to giving factual basis for the allegation of illegality. So there is a charge against him to claim, as held by Cass., Sec. lav., October 24, 2005, No 20523 with regard to a hypothesis of insufficient allegation of the facts of the illegality of the exercise of significant power by assigning tasks that do not correspond to the designation and consequent dismissal of the application, cf. also Cass. August 18, 1997 No 7641.

The employer in turn, sued in a dispute involving the unlawful exercise of that assumed power steering, he must take a position in accurately and not limited to a general dispute about the facts alleged by the plaintiff in support of the claim (art. 416 CCP) and can attach other facts, by contrast, are indicative of the legitimate exercise of managerial power.

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Faccialibro.

"are you single?"
"yes!"
"how about a cup of coffee after this?"
"refhjhfak mean that you know, I'm working, there is one which, I must go."