With
order 1888 dated 28 January 2020, the Court of Cassation has ruled on a case of
dismissal for unlawful justified objective grounds with the consequent
reinstatement in the job based on article 18 of Law No. 300/1970 (in the text
prior to the amendment brought about with Law No. 92/2012). By expressing a
general principle, first of all, the Court has stressed that «the actual
protection of the job can in no way go so far as to exclude the possible impact
of subsequent vicissitudes entailing the termination of the binding
obligation». In the case at issue, with judgment 705/2017 and by reversing the
ruling of first instance, the Court of Appeal of Catania declared the unlawful
nature of the dismissal served by the employer on 18 July 2005 and ordered the
reinstatement of the appellant in the job, regardless of the fact that the
total discontinuance of the business had supervened pending the proceedings.
The employer brought an appeal before the Court of Cassation against the appeal
judgment complaining, amongst other reasons, the breach and the false application
of article 18 of Law No. 300/1970 and of section 1463 of the Civil Code. In
particular, according to the employer, in the appeal proceedings, the Court
allegedly failed to examine crucial facts for the purposes of the reinstatement
judgment, amongst which, the discontinuance of the business occurring after the
dismissal and the filing of a proof of claim in the composition with creditors
with the relevant assignment of assets to the creditors validated at a later
stage. Based on a principle already set
forth, the Court of Cassation has deemed that «the reinstatement is an effect
of the ruling handed down pursuant to article 18 of Law No. 300/70 unrelated to
the exercise of the employer’s potestative rights who, thus, may at all times
infer the total or partial inapplicability to the case under dispute» (Court of
Cassation 28703/2011). Should the supervened total discontinuance of the
business be ascertained in the specific case, it would de facto amount to a cause of actual supervened impossibility not
ascribable to the employer such as for the binding obligation to no longer
exist, together with the corresponding applicability of the real protection. In
light of the principles cross-referenced above, the Court of Cassation has
upheld the employer’s appeal by holding that, without prejudice to the
unlawfulness of the dismissal, the Court of Appeal could not have in any case
ordered the employee’s reinstatement since it had failed to take into
consideration, in light of the evidential findings, the actual supervened
discontinuance of the business.
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