When concluding a contract that involves more than one jurisdiction because of the parties’ citizenships or the place of execution of the activities, they may choose the law that will govern their working agreement. Although there are no boundaries to the legislation to choose from, the terms and conditions of the agreement mustn't collide with the ground principles of the law of the country where the working activity is mainly executed. The parties of an employment contract are free to choose any foreign law to govern their relationship. However, pursuant to the dedicated international conventions (or European Regulations, if within the EU) executed by the involved countries, such a choice should not jeopardize the rights granted to the employee by the applicable law when none was chosen as the governing one, nor collide with the application of the overriding mandatory provisions set by the jurisdiction of the place where the activities are executed. In cases where the latter is the Italian territory, specific mandatory provisions have been provided by the available case law and all relate to different aspects of the working relationships. For instance, these principles deal with health, safety, and hygiene at the workplace; they impose protective measures concerning the terms and conditions related to parental care, as well as the equality of treatment between men and women and, generally speaking, non-discrimination ground rules. Furthermore, the Italian legislation shall prevail on the principles and norms pursuant to the chosen governing law also when these provisions are manifestly incompatible with our country's public policy. In this sense, the case law again comes to our aid since it produced a handful of precedents. For instance, termination at will is against the principle embraced by the Italian system, according to which the dismissal must be grounded on legitimate organisational or disciplinary reasons, thus not being discretional upon the employer’s decision, with the only exception of extra-ordinary cases, where a safeguard defined by the applicable the collective agreements still applie. In this sense, the lack of remedies against unlawful termination is unacceptable, as it goes against the Italian sets of norms safeguarding the employees, which provide for the latter’s entitlement to compensation for damages caused by the unlawful termination. Moreover, a clause prescribing the possibility of terminating the employment due to the employee’s sickness would not be acceptable as it would conflict with the latter’s entitlement to retain the job position for a certain time while on sick leave. Another example could be the lack of a fair disciplinary procedure in case of employee’s misconduct, which shall be considered as colliding with the principle of fair trial and proper defence applied to the employment discipline acknowledged to employees in Italy. Finally, it is essential to remember that when certain terms and conditions of employment enjoy specific protection under the law and the Italian Constitution, Employment Courts may as well use the most representative National Collective Bargaining Agreements as a benchmark for such terms in the industry or the sector. For instance, this can be the case for the grace period acknowledged to the employee in case of sickness.
2024 - Morri Rossetti
