With its order no. 7400 of 7 March 2022, the Court of Cassation ruled that an individual dismissal for objective justified reason, for the same reasons as those underlying the collective dismissal previously initiated, is null and void because it involves fraudulent conduct.
An employee who was dismissed for justified objective reasons challenged the dismissal before the Court of Rome on the grounds that it was based on the same reasons that had previously led to a collective dismissal with the same company.
The Court declared that the dismissal was null and void because the company had not complied with the requirements of Law no. 223 of 1991, since it was based on the same reasons as the collective dismissal. The company had not involved the trade unions and had not carried out the necessary comparison between the position of the dismissed employee and that of the other employees subject to collective dismissal.
The company appealed against the ruling before the Court of Appeal of Rome, which upheld the first instance ruling, pointing out that the reasons underlying the two types of dismissal were overlapping. In addition, the Court of Appeal noted that (i) the collective dismissal had been concluded without redundancies because the recipients took part in a voluntary redundancy incentive offer and (ii) in the year that had elapsed between the termination of the collective procedure and the contested dismissal, no changes had occurred at the company.
According to the appeal court, the absence of new reasons that could have justified the individual dismissal, the non-inclusion of the employee in the collective procedure had precluded him from availing himself of the comparison of his position with those of the employees under the collective procedure.
The employer company appealed against the Court of Appeal’s ruling in cassation.
The Court of Cassation confirmed the Courts’ decisions and, using previous case law, observed that the employer could not revise their choices made in relation to the number, company location and professional profiles of the redundant workers, and the criteria for choosing the individual workers to be removed, through further and subsequent individual dismissals. The legitimacy of these dismissals was subject to the identification of factual situations different from the collective dismissal (see Court of Cassation, ruling 16 January 2020, no. 808).
The Cassation judges stated that “the dismissal for justified objective reason provided for the same reasons underlying a previous collective dismissal is a fraudulent conduct under Article 1344 of the Italian Civil Code.” The Court stated that the unlawful contract involves “the parties achieving the same result prohibited by Law, through contractual agreements. Although the means employed is lawful, the result intended to be achieved is unlawful by abusing the means and distorting its ordinary function,” as in this case.
The Court of Cassation rejected the company’s claim about the inadmissibility of the court to decide the merits of the entrepreneur’s technical, organisational and production choices. According to the Court of Cassation, the Court of Appeal found that the reasons underlying the collective dismissal overlapped with those underlying the individual dismissal and that the dismissal was unlawful.
This conclusion, according to the Court, is sufficient to declare the dismissal unlawful, because the procedural management of collective dismissal must effectively involve the union in the company’s organisational choices, binding the employer to meet them even after the procedure closure. The employer could not reconsider what was communicated to the union about the number, company location, professional profiles of the redundant workers and the criteria for selecting employees after the collective procedure had completed.
According to the Court of Cassation, the individual dismissal must be based on factual situations different from those underlying the collective dismissal.
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