De facto global pay. What are the criteria for its determination

Article 18 c. 4 of Law No. 300/70 states that following the judge's ruling that defines the dismissal against the worker as illegitimate when it was imposed in the absence of just cause or objective justification or in cases where the act is among the conduct punishable by a conservative sanction, the worker is entitled, in addition to reinstatement, to the payment of A compensatory allowance commensurate with the last actual global remuneration.

Although more than fifty years have passed since the introduction of the "Workers' Statute," doubts still remain as to what elements make up said pay. It seems appropriate, therefore, to analyze the elements of remuneration and the differences with the de facto global remuneration.

In Article 36 of the Constitution we find the definition of remuneration in force in our system. Specifically, the quoted provision states that remuneration, consideration for the performance of work, must be proportionate To the quality and quantity of performance. In essence, the value of pay is defined by collective bargaining, which identifies the base pay, and by the will of the parties, who may agree on the payment of additional elements.

Therefore, the economic treatment paid to the worker may well be composed, in addition to the (mandatory) minimum wage, of other items, such as but not limited to:

• Separate element of remuneration;
• Job-related allowances to compensate for particular activities;
• Absorbable or nonabsorbable superminimum;
• Lump-sum overtime;
• Seniority steps;
• Other additional elements agreed upon between the parties.

Actual total compensation in the case of lawful dismissal allows for the quantification of the compensation to be paid to the employee as compensation for the injury suffered as a result of the unlawful dismissal.

Since there is no rule that exhaustively lists the elements included in it, nor is there a reference to collective bargaining, the jurisprudential orientation that has followed over the years, in order to define its composition, has considered using as a parameter the consideration that the worker would have received in the case of "normal" performance.

However, it is true that, very often, the elements that make up the de facto global remuneration paid to the employee, even close to the time of the dismissal, do not correspond to the remuneration agreed upon between the parties. Hence the need to discriminate and "narrow down" the elements of remuneration that are useful in defining the de facto global remuneration.

Since it is not possible to quantify the "normal" performance of the activity in economic terms, case law holds that all those elements of remuneration received in addition to basic pay, even on a noncontinuous basis, but which do not have the character of exceptionality and occasionality, are included for the purpose of calculating the de facto total remuneration.

A passage from the judgment under review is quoted in this regard: "....premitted the compensatory nature of the indemnity liquidated as a result of the ascertained illegitimacy of the dismissal (...), as to its commensuration, this Court considers, in adherence to the constant orientation of the court of legitimacy (....), that the notion of "de facto global remuneration" can only refer to that which the worker would have received if he/she had worked, with the exclusion of any compensation, the receipt of which is not certain, that which is linked to particular ways of carrying out the service itself and is of an occasional or exceptional nature."

The issue examined by the Court, in ruling No. 8040 last March, specifically moved from an appeal, brought by the dismissed worker, aimed at obtaining enhancement of the foreign service allowance (so-called ISE), received by him, when quantifying and defining the de facto global remuneration related to the intervening dismissal.

In conclusion, the Supreme Court dismissed the appeal in question, excluding the foreign service allowance from the computation of overall compensation as an emolument aimed at "To compensate not for the increased burden/difficulty of performance, but other inconveniences such as - for example - those related to relocation, travel, renting property in the new place of work, etc."

In fact, the cassation continues, "in the concept of global de facto remuneration should be included only remuneration items and not even all of them, having to exclude, as mentioned, those having an occasional or exceptional character."

Inevitably, reference was made to the decision promoted by the same Court of Cassation, in ruling No. 14112 of 2016, where the retributive nature of the foreign service allowance was denied insofar as it was aimed at making up for the burdens arising from the stay in the foreign office. In that court, in 2016, in the case concerning the extent of compensation for pecuniary damage suffered by the employee unlawfully transferred back to Italy, it had, moreover, in the same vein pointed out that ISE allowance does not contribute to the non-pecuniary loss suffered by the employee unlawfully recalled to headquarters.

The present discussion cannot be separated from the need for clear agreements, within the framework of the employment relationship, also in relation to the remuneration package due and recognized to the worker. In fact, it is evident that the sharper the agreements are and the more they correspond to the legal requirements, the easier it will be to identify also the pay items to be used in the definition of any de facto global remuneration.