Validity and effects of double dismissal (Il Quotidiano del Lavoro, 1 july 2015)
The Court of Cassation (labour section, 9 June 2015, no. 11910) once again rules on the legitimacy of a second dismissal notified by the employer on the same employee while a challenge to the previously notified first dismissal is pending. The dispute examined by the Court originates with a dismissal for objective cause within the context of a procedure as per law 223/91, challenged in relation to a sentence of anti-union behaviour based on article 28 of Law 300/70 on appeal of the trade unions.
The employer company lost the trial in question, as the Court had:
(a) recognised the anti-trade union nature of the employer’s conduct consisting in the failure
to comply with the annual trade union information notice, established by the industry national
collective labour contract and insufficient contents of the communication as per article 4, paragraph 3, of law 223/91;
(b) declared the eight dismissals following the layoff procedure in process as unlawful;
(c) ordered the reinstatement of the eight wrongfully dismissed employees and sentenced the company to pay the total salary compensation matured from the dismissal to the reinstatement for each of the eight employees. The judgement was confirmed in two separate levels of appeal. Pending the court challenge procedure, the company had dismissed, based on different grounds, two of the eight workers involved in the aforesaid layoff, which grounds were confirmed as legitimate on trial. Against the decision of the territorial Court, one of the workers involved in the second dismissal filed an appeal with the Cassation Court, and the company filed a cross- appeal. With the first appeal, the worker claimed insufficient due cause on one decisive point of the case, as well as the violation of the articles 1418 of the Civil Code and 28 of Law 300/70, since the Appellate Court did not consider the second dismissal void she could not be dismissed until cancellation of the first termination she was served with for reduction of personnel. Specifically, recalling the previous ruling of the Court (no. 15093/09), the petitioner underlined how, in the event of two subsequent dismissals, the second does not produce effects, if the first one has not been cancelled, with the result that the aim of the second dismissal was clearly to avoid the order of reinstatement and thus it is null pursuant to article 1418 of the Civil Code. The Cassation, after having considered the grounds partly inadmissible because lacking the specific indication of “decisive fact”, intended as historic fact, the subject of the reason for the appeal as per article 360 no. 5 of the Code of Civil Procedure, rejected the reason for the appeal due to lack of sufficient grounds. Specifically, the Court pointed out how the case law cited by the worker should be considered superseded by later cases, including ruling no. 1244/11, according to which the employer, if he has already dismissed a worker for a certain cause or reason, may legitimately notify a second dismissal, based on another cause or reason, since the latter is completely autonomous and separate from the first. Consequently, both of the termination acts are in themselves theoretically suitable for reaching the purpose of termination of employment, since the second dismissal should be considered to produce effects only if the first is recognised as ineffective or invalid. With the second and third grounds for the appeal the worker then introduced mere objections of merit regarding the second challenged dismissal, which the Court correctly deemed inadmissible in the Court.
Il Quotidiano del Lavoro – Il Sole 24 Ore