Verification of higher duties
The Court of Naples affirmed that the employee who claims a higher professional qualification in relation to the duties performed has the burden of demonstrating the nature and period of time during which such duties were performed, the content of the individual, collective or legal provisions by virtue of which the higher qualification is claimed, the coincidence of the duties performed with those set forth by the relevant provisions.
According to the Court, therefore, the burden of proof incumbent on the employee covers the entire spectrum of allegations necessary to allow the judge to verify the validity of his/her claims.
In particular, in order for the employee to adequately satisfy his/her burden of proof, it is necessary that, first of all, the employee has dully fulfilled the burden of timely allegation, which necessarily implies the correct indication of the provisions of the collective bargaining (NCBA) which must be compared to each other to verify that the claim is grounded.
On these assumptions, the Court of Naples rejected the employee’s claims who had not even filed with the court the NCBA applicable to the relationship to the appeal (sentence 2 March 2022)
Actual global salary
Recently, the Supreme Court reaffirmed the principle according to which in the concept of actual global salary (“retribuzione globale di fatto” in the Italian legal parlance) - which a labor court must refer to in order to calculate the remuneration to be paid in the event of unlawful dismissal - it must be included only the remuneration that the employee receives as a result of the normal performance of a service, excluding those items having an occasional or exceptional nature.
For the notion of " actual global salary " it can only refer to the remuneration that the employee would have received if he had worked, with the exclusion of (i) any remuneration of which the payment is not certain and (ii) those linked to particular methods of carrying out the service itself and having an occasional or exceptional nature.
In this regard, it is certainly applicable the prevailing position on the matter of the Supreme Court which denied the remuneration nature of the foreign service allowance as it was aimed at compensating the employee for the costs deriving from staying in an office placed abroad (Supreme Court’s decision No. 8040 dated March 11, 2022).
Avv. Guido Brocchieri
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