Managers excluded from dismissal prohibition during pandemic (Guida al Lavoro of Il Sole 24 Ore – Alberto De Luca, Alessandra Zilla)

The Court of Rome differs from the Capitoline Court of Appeal guidelines over the exclusion of the dismissal prohibition for managers during the Covid emergency.

Measures to combat Covid 19 – Decree Law no. 18/2020 and Decree Law no. 104/2020 – Dismissal prohibition for objective justified reason – Manager – Dismissal for position redundancy – Prohibition breach – Not applicable

The emergency legislation on prohibiting dismissal for objective justified reasons is exceptional and cannot be applied to similar cases not expressly mentioned by the regulation. This means that the dismissal prohibition cannot be applied to an individual manager’s dismissal.

Court of Rome 25 October 2022, no. 8722

A few months after the Rome Court of Appeal ruled in favour of the applicability of the dismissal prohibition to managers, the Capitoline Court, in its recent ruling no. 8722 published on 25 October 2022, came to an opposite conclusion.

FACTS OF THE CASE

In August 2020 – the period covered by the general dismissal prohibition for objective justified reasons under Decree Law 14/8/2020, no. 104 – an employer company dismissed a manager for objective financial reasons.

Considering that managers were included in the group of workers protected by the dismissal prohibition under the emergency regulations, and as part of the first phase of the Fornero Procedure, the Judge declared the dismissal null and void, ordered the manager immediate reinstatement, and the company to pay the remuneration due from the dismissal date until reinstatement.

The company appealed against this decision before the Court of First Instance.

LEGISLATION AND CASE-LAW

Art. 46 Decree Law 17 March 2020, no. 18 prohibited collective dismissal procedures and employers from “terminating the contract for objective justified reasons under Art. 3 of Law no. 604 of 15 July 1966” regardless of the number of employees.

The dismissal prohibition applicable to this case was extended and subjected to further conditions and exceptions, by Decree Law 14/8/2020, no. 104.

The provision stated that, to cope with the COVID-19 emergency, private employers who partly benefited from the wage subsidies or the exemption from the payment of social security contributions could not terminate employment contracts for objective justified reasons under Art. 3 of Law 15/7/1966, no. 604 of 15/7/1966, regardless of the number of employees. The ongoing procedures at the Local Labour Inspectorate referred to in Art. 7 of the same law, were suspended.

The prohibitions and suspensions listed above did not apply in the following cases:

a) redundancies due to the definitive cessation of the company business, resulting from the company liquidation without any business continuation;

b) collective bargaining agreement, stipulated by the trade unions that are comparatively more representative at the national level, as an incentive to terminate the relationship;

c) redundancies due to bankruptcy when there was no company provisional operation or business termination.

Since the introduction of the dismissal prohibition, two opposing approaches have alternated in legal theory and case law on the applicability of this emergency legislation to individual dismissals of managers.

Continue reading the full version published on Guida al lavoro of Il Sole 24 Ore.