Orzeczenie: Dante De Angelis przeciwko Trenitalia
Włoski wyrok w sprawie odpowiedzialności za tzw. "whistleblowing" - sygnalizację nieprawidłowości w zakładzie pracy.
(Komentarz w j. angielskim)
DANTE DE ANGELIS vs. TRENITALIA.
THE FACTS OF THE CASE
-Milan, July 14th 2008: a short time before leaving, 7.00 a.m. Eurostar train 9427 Milan-Rome breaks into two stumps between carriages 11 and 12 of tourist class during its displacement from Martesana garage to ETR 500 Central station. In all probability the cause is ascribable to wear and tear or to an improper maintenance of the hook’s materials. Luckily the accident happens at a low speed, with an empty train and with the only consequence of delays and cancellation of some trips to Rome. The carriages separated from the locomotive would have stopped anyway autonomously but possibly with tragic consequences for travelers.
-Milan, July 22nd 2008: along the route from the station to the garages, the hook of Eurostar train 9452 Palermo-Milan, arrived at 12.05 a.m. without any passenger on board and heading from the Central Station of Milan to Martesana deposit, breaks up between carriages 9 and 10 after that, according to the first reconstructions, the emergency brake of the rear locomotive went off. Two potentially serious accidents happen in a few days causing strong polemics about security and implicating FS Trenitalia top management. The company itself declared that “this accident would have never happened during the route and it has nothing to do with materials wear and tear” also adding: “Trenitalia has opened, together with the usual technical inquiries, a cognitive investigation to verify any possible intentional act”.
-July 23rd 2008: according to the declarations made by the Managing Director, FS Trenitalia company declares that it was a “human mistake”. Mr. Dante De Angelis, trade union and workers’ representative for security, replies “we do not accept that the responsibility is shifted on to the last operator. ETRs 500 have entirely electronic controls and we cannot accept what it is happening even in the presence of an operation mistake”. And he defines the accident “an alarm bell that calls everybody’s attention to the problems of maintenance, design and controls of the trains”.
Then Mr. De Angelis adds that many warnings made by the workers’ representatives for security (RLS) to the company about the maintenance problems of ETRs, the controls on the trains and the materials wear and tear were never seriously taken under consideration thus creating a situation of serious danger for passengers and a complete lack of communication between the company’s top management and the union trade representatives about such an important issue as security.
-August 15th 2008: Mr. Dante De Angelis, 47 years old, 30 years of service at FS Trenitalia is fired for cause (which means without notice) from its position as engine driver and as workers’ representative for security. The reasons of the dismissal come from Fs Trenitalia top management a few days later “the dismissal was intimated not because he denounced an accident but for causing an alarm and because he made some false declarations about trains’ maintenance and he spread the idea that our trains are not secure causing a serious economic and image damage to the company”.
The reactions to Mr. De Angelis dismissal are very strong: media, local governments, trade unions and political parties show publicly their disagreement about the dismissal. Dante De Angelis, legally represented by his lawyer, in October of the same year turns to the labour judge to obtain the nullification of the dismissal considered illegitimate and to obtain the restoration of his job.
LABOUR LAWS IN ITALY CONCERNING THE CASE:
Law number 300/1970, also called “workers’ statute of rights” is, with article 18, a powerful instrument of protection against dismissals, a system that, in case of illegitimate dismissal, obliges the employer to reinstate the employee in his job. Since it is an illegitimate dismissal the working relationship is not considered as interrupted so the worker still has all the dues concerning the working relationship coming to him, both the contribution and the remuneration of the entire period that goes from the dismissal to the actual restoration. Moreover in article 28 of law 300/1970 we can find “repression of anti-union behavior”, a fundamental article for trade unions’ protection in the workplace; it punishes all the acts aiming to prevent or to limit the exercise of freedom, trade unions’ activities and the right to strike. The article provides that the labour judge of the place where this behavior happens, at the instance of trade unions and, after verifying the violation, orders to the employer, with justified and immediately executive decree, the cessation of the illegitimate behavior and the removal of its effects.
It is also important to call attention to the “Workers’ representative for security”, a fundamental figure for trade unions’ activity and an important supervising body. Provided for by law 626/1994, RLS (Workers representative for security) is consulted by the employer about risk evaluations, individuation, programming, realization and verification of prevention into the companies; he can enter workplaces; he can express his observations during visits and verifications made by probate authorities, he can have recourse to the probate authorities if he believes that the prevention measures and the protection from risks adopted by the employer and the means used to enact them are not appropriate to guarantee security and health during work. The focal point is that the workers’ representative for security cannot suffer the prejudice as for concerning the exercise of his functions and he benefits from the protection of laws provided for trade union representatives.
ROME COURT’S SENTENCE AND CONCLUSION OF THE CASE
According to De Angelis’ declarations at the sentence of the ordinary Rome court (labour section), many other accidents happened, some of which very serious: two other ETRs broke up, six workers died on the rail lines, three passengers were killed in another accident. But the most serious event was on July 29th 2009 in Viareggio: 31 people killed by the explosion of a tank after the derailment of the train that transported them. A disaster which confirms the grounding of the declaration made by Mr. De Angelis that received as answer a dismissal which caused many controversies in the whole society.
The sentence of the case arrives on October 26th 2009, a year after the dismissal: the dismissal must be considered illegitimate with the consequent right to be reinstated in the job, as judge Conte declares in its motivations: “exercising the right of critic, in this case by presupposing, as Mr. De Angelis did, some problems concerning maintenance and controls, falls completely within the functions established by article 21 of the Constitution, which recognizes to everyone the right to express freely their thought with spoken and written words and every other media”. This right is also sanctioned by article 19 of the Universal declaration of human rights (“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless frontiers”) and by article 10 of the European Convention for protection of human rights and fundamental freedoms.”
The court of Rome passes an innovative sentence which opens the way to new protection instruments against companies’ retaliations (De Angelis’ case is a whistleblowing case), especially when they are addressed to trade unions’ participants. As we can read in the motivations of the sentence:” we cannot tolerate the idea that when an employee accepts a working relationship he has not rights to criticize even publicly the company’s behavior, with the excuse that by doing so he damages the image of the company on the market; since railway security is an important matter of public interest it is legitimate that every kind of hypothesis, which is not at first sight clearly arbitrary and used as an excuse, is put before public opinion. Indeed it is only formulating hypothesis about the causes of an event that men can improve their knowledge about the facts that could cause damages and can adopt the proper measures to prevent them”.
It is also important the analysis that Judge Conte of Rome Court does about this special case and the particular role played by Dante De Angelis as workers’ representative for security. From what we can read in the sentence we must clarify that: “Mr. De Angelis is the workers’ representative for security, which means that he deals with such issues as security in the workplace, thus he is a regular interlocutor of the company concerning trade unions matters. Even if it is not an extenuating circumstance of the right to critic we must admit that the intrinsic nature of trade unions relationships, which are permitted by the legal order and which physiologically involve the recourse to claim and protest, requires a proper and reasonable criterion of tolerance towards these events, often created by an excess of polemic strength. Anyway this tolerance does not show through the facts under examination and so we can consider Mr. De Angelis’ dismissal as a disproportionate measure”.
This passage is particularly important because it assigns to the representative for security a role that must be played even by criticizing the company, by raising hypothesis, even by using “tolerated tones” in a dialogue that has without any doubt trade unions’ peculiarities; so clearly the tones of contraposition that characterize them. This criterion by the way is also applied to the press and information in general.
These motivations give bravery to representatives for security to do their job without any fear of censorship or punishment by the company, which are the typical “Whistleblowing” retaliations, an English word that indicates the activity of those who, working into a company, notice a possible fraud or a danger or any other serious risk that can damage customers, colleagues, shareholders, the public or even the company’s reputation and decide to signal that. The “Whistleblower” is a person who is inside the company and who knows the internal dynamics of the company, he is part of it and he decides to reveal its diseases and lacks for the sake of justice and responsibility towards the public.
Obviously, as in Dante De Angelis’ case, this can cause some discriminatory retaliations that not only undermine the workers’ freedom of expression but also violate a general principle of transparence and correctness that must be shared in every workplace. Italy does not have specific laws concerning the “Whistleblowing”, even if it has a vast protection system for workers and trade unions in the workplace. This protection system is without any doubt bolstered by law 216/2003, issued to implement the EU directive 78/2000, for equal treatments as for occupation and working conditions. Article 1 of law 2003/216, reaffirming the equal treatment of people regardless of religion, personal believes, handicaps, age and sexual preferences, provides for necessary measures in order to avoid that these factors will cause any discrimination and it explicitly includes into these factors “personal opinions” as object of protection against discriminations in the workplace. De Angelis’ sentence has a positive and useful result for all the workers: every worker has the right to speak and to critic: a right that cannot be subordinated to an employment contract, especially, as in this case when some general interests like security for those who travel and work on trains are at stake.
Matteo Gatti
THE FACTS OF THE CASE
-Milan, July 14th 2008: a short time before leaving, 7.00 a.m. Eurostar train 9427 Milan-Rome breaks into two stumps between carriages 11 and 12 of tourist class during its displacement from Martesana garage to ETR 500 Central station. In all probability the cause is ascribable to wear and tear or to an improper maintenance of the hook’s materials. Luckily the accident happens at a low speed, with an empty train and with the only consequence of delays and cancellation of some trips to Rome. The carriages separated from the locomotive would have stopped anyway autonomously but possibly with tragic consequences for travelers.
-Milan, July 22nd 2008: along the route from the station to the garages, the hook of Eurostar train 9452 Palermo-Milan, arrived at 12.05 a.m. without any passenger on board and heading from the Central Station of Milan to Martesana deposit, breaks up between carriages 9 and 10 after that, according to the first reconstructions, the emergency brake of the rear locomotive went off. Two potentially serious accidents happen in a few days causing strong polemics about security and implicating FS Trenitalia top management. The company itself declared that “this accident would have never happened during the route and it has nothing to do with materials wear and tear” also adding: “Trenitalia has opened, together with the usual technical inquiries, a cognitive investigation to verify any possible intentional act”.
-July 23rd 2008: according to the declarations made by the Managing Director, FS Trenitalia company declares that it was a “human mistake”. Mr. Dante De Angelis, trade union and workers’ representative for security, replies “we do not accept that the responsibility is shifted on to the last operator. ETRs 500 have entirely electronic controls and we cannot accept what it is happening even in the presence of an operation mistake”. And he defines the accident “an alarm bell that calls everybody’s attention to the problems of maintenance, design and controls of the trains”.
Then Mr. De Angelis adds that many warnings made by the workers’ representatives for security (RLS) to the company about the maintenance problems of ETRs, the controls on the trains and the materials wear and tear were never seriously taken under consideration thus creating a situation of serious danger for passengers and a complete lack of communication between the company’s top management and the union trade representatives about such an important issue as security.
-August 15th 2008: Mr. Dante De Angelis, 47 years old, 30 years of service at FS Trenitalia is fired for cause (which means without notice) from its position as engine driver and as workers’ representative for security. The reasons of the dismissal come from Fs Trenitalia top management a few days later “the dismissal was intimated not because he denounced an accident but for causing an alarm and because he made some false declarations about trains’ maintenance and he spread the idea that our trains are not secure causing a serious economic and image damage to the company”.
The reactions to Mr. De Angelis dismissal are very strong: media, local governments, trade unions and political parties show publicly their disagreement about the dismissal. Dante De Angelis, legally represented by his lawyer, in October of the same year turns to the labour judge to obtain the nullification of the dismissal considered illegitimate and to obtain the restoration of his job.
LABOUR LAWS IN ITALY CONCERNING THE CASE:
Law number 300/1970, also called “workers’ statute of rights” is, with article 18, a powerful instrument of protection against dismissals, a system that, in case of illegitimate dismissal, obliges the employer to reinstate the employee in his job. Since it is an illegitimate dismissal the working relationship is not considered as interrupted so the worker still has all the dues concerning the working relationship coming to him, both the contribution and the remuneration of the entire period that goes from the dismissal to the actual restoration. Moreover in article 28 of law 300/1970 we can find “repression of anti-union behavior”, a fundamental article for trade unions’ protection in the workplace; it punishes all the acts aiming to prevent or to limit the exercise of freedom, trade unions’ activities and the right to strike. The article provides that the labour judge of the place where this behavior happens, at the instance of trade unions and, after verifying the violation, orders to the employer, with justified and immediately executive decree, the cessation of the illegitimate behavior and the removal of its effects.
It is also important to call attention to the “Workers’ representative for security”, a fundamental figure for trade unions’ activity and an important supervising body. Provided for by law 626/1994, RLS (Workers representative for security) is consulted by the employer about risk evaluations, individuation, programming, realization and verification of prevention into the companies; he can enter workplaces; he can express his observations during visits and verifications made by probate authorities, he can have recourse to the probate authorities if he believes that the prevention measures and the protection from risks adopted by the employer and the means used to enact them are not appropriate to guarantee security and health during work. The focal point is that the workers’ representative for security cannot suffer the prejudice as for concerning the exercise of his functions and he benefits from the protection of laws provided for trade union representatives.
ROME COURT’S SENTENCE AND CONCLUSION OF THE CASE
According to De Angelis’ declarations at the sentence of the ordinary Rome court (labour section), many other accidents happened, some of which very serious: two other ETRs broke up, six workers died on the rail lines, three passengers were killed in another accident. But the most serious event was on July 29th 2009 in Viareggio: 31 people killed by the explosion of a tank after the derailment of the train that transported them. A disaster which confirms the grounding of the declaration made by Mr. De Angelis that received as answer a dismissal which caused many controversies in the whole society.
The sentence of the case arrives on October 26th 2009, a year after the dismissal: the dismissal must be considered illegitimate with the consequent right to be reinstated in the job, as judge Conte declares in its motivations: “exercising the right of critic, in this case by presupposing, as Mr. De Angelis did, some problems concerning maintenance and controls, falls completely within the functions established by article 21 of the Constitution, which recognizes to everyone the right to express freely their thought with spoken and written words and every other media”. This right is also sanctioned by article 19 of the Universal declaration of human rights (“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless frontiers”) and by article 10 of the European Convention for protection of human rights and fundamental freedoms.”
The court of Rome passes an innovative sentence which opens the way to new protection instruments against companies’ retaliations (De Angelis’ case is a whistleblowing case), especially when they are addressed to trade unions’ participants. As we can read in the motivations of the sentence:” we cannot tolerate the idea that when an employee accepts a working relationship he has not rights to criticize even publicly the company’s behavior, with the excuse that by doing so he damages the image of the company on the market; since railway security is an important matter of public interest it is legitimate that every kind of hypothesis, which is not at first sight clearly arbitrary and used as an excuse, is put before public opinion. Indeed it is only formulating hypothesis about the causes of an event that men can improve their knowledge about the facts that could cause damages and can adopt the proper measures to prevent them”.
It is also important the analysis that Judge Conte of Rome Court does about this special case and the particular role played by Dante De Angelis as workers’ representative for security. From what we can read in the sentence we must clarify that: “Mr. De Angelis is the workers’ representative for security, which means that he deals with such issues as security in the workplace, thus he is a regular interlocutor of the company concerning trade unions matters. Even if it is not an extenuating circumstance of the right to critic we must admit that the intrinsic nature of trade unions relationships, which are permitted by the legal order and which physiologically involve the recourse to claim and protest, requires a proper and reasonable criterion of tolerance towards these events, often created by an excess of polemic strength. Anyway this tolerance does not show through the facts under examination and so we can consider Mr. De Angelis’ dismissal as a disproportionate measure”.
This passage is particularly important because it assigns to the representative for security a role that must be played even by criticizing the company, by raising hypothesis, even by using “tolerated tones” in a dialogue that has without any doubt trade unions’ peculiarities; so clearly the tones of contraposition that characterize them. This criterion by the way is also applied to the press and information in general.
These motivations give bravery to representatives for security to do their job without any fear of censorship or punishment by the company, which are the typical “Whistleblowing” retaliations, an English word that indicates the activity of those who, working into a company, notice a possible fraud or a danger or any other serious risk that can damage customers, colleagues, shareholders, the public or even the company’s reputation and decide to signal that. The “Whistleblower” is a person who is inside the company and who knows the internal dynamics of the company, he is part of it and he decides to reveal its diseases and lacks for the sake of justice and responsibility towards the public.
Obviously, as in Dante De Angelis’ case, this can cause some discriminatory retaliations that not only undermine the workers’ freedom of expression but also violate a general principle of transparence and correctness that must be shared in every workplace. Italy does not have specific laws concerning the “Whistleblowing”, even if it has a vast protection system for workers and trade unions in the workplace. This protection system is without any doubt bolstered by law 216/2003, issued to implement the EU directive 78/2000, for equal treatments as for occupation and working conditions. Article 1 of law 2003/216, reaffirming the equal treatment of people regardless of religion, personal believes, handicaps, age and sexual preferences, provides for necessary measures in order to avoid that these factors will cause any discrimination and it explicitly includes into these factors “personal opinions” as object of protection against discriminations in the workplace. De Angelis’ sentence has a positive and useful result for all the workers: every worker has the right to speak and to critic: a right that cannot be subordinated to an employment contract, especially, as in this case when some general interests like security for those who travel and work on trains are at stake.
Matteo Gatti
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