Precautionary appeal blocks the prescriptive time period

The Constitutional Court, with its ruling 212 of 14 October 2020 established that a worker who challenges a transfer (and other acts of the employer subject to prescriptive limitations, including dismissal) with precautionary appeal, without filing an ordinary appeal to the Labour Court, is not subject to the prescriptive time periods established by law.

Facts of the case

A disabled worker has promptly challenged by means of urgent appeal as per art. 700 of the Code of Civil Proceedings with which the employer had ordered his transfer to another site located in another region. This was done without recourse to ordinary judgement within the period of 180 days as per article 6, paragraph 2, of Law 604/1966.

Article 6, paragraph 2, of Law 604/1966

Article 6, paragraph 2, of Law 604/1966 states that “the appeal is invalid if it is not followed, within the next one hundred and eighty days, by filing of the appeal with the court clerk’s office based on the labour judge or notice by the counterparty of request for an attempt at conciliation or arbitration”

Based on the literal interpretation of the law, the only instruments for preventing the prescriptive limitation are the appeal at the Labour Court (based case law both ordinary appeal as well as that introduced by article 1, paragraph 48, of Law 92/2012 for a claim involving an appeal against dismissal as stated in paragraph 47) or notice of the counterparty of request for an attempt at conciliation or arbitration.

Question of constitutionality

The Court of first instance of Catania thus raised the issue of constitutionality of the law under review which, including based on the interpretation provided by the Cassation judges, did not include the urgent appeal among the instruments suited for preventing the prescriptive time period from elapsing.

In the Court’s opinion, such interpretation would result in a disproportionate and unreasonable penalty compared to the objectives actually pursued by the law, where it definitively prevents the worker, for merely formal motivations, from obtaining a decision on his appeal, despite the fact that he had promptly challenged the company’s act with a precautionary appeal.

The Supreme Court of Cassation’s ruling

According to the Cassation Court, if the employee’s complaint brought before a conciliation commission or arbitration board – proceedings which, moreover, can be rejected by the employer – constitutes an act suitable for preserving the validity of the appeal and prevent its forfeiture, the same effect must be recognised as the employee’s initiative proposing his appeal directly before a judge, including precautionary, an initiative that the employer cannot avoid. A different interpretation would violate the principle of equality as per article 3 of the Constitution.

The Court found that precautionary protection, since it falls under the exercise of jurisdiction as per art. 24, paragraph 1, Constitution and guarantee of due process as per art. 111, paragraph 1, Constitution, cannot be subjected to a treatment worse than the alternative systems for settling disputes.

Moreover, according to the Cassation Court, the law would be in contrast with the principle of reasonableness as per art. 3 of the Constitution in relation to the underlying purposes of the expected prescriptive time period. This is based on the fact that the claim submitted with a precautionary appeal is suitable for meeting the purposes of the same law. This purpose consists in revealing, in a short time period, the existence of a dispute on the validity of a series of provisions of the employer which, in the case in question is the transfer.

Based on the above the Court declared unconstitutional art. 6, paragraph 2, of Law 604/1966 as replaced by art. 32, paragraph 1 of Italian Law 183/2010 (so-called Employment Relationship) “in the part where it does not include that the appeal is invalid if it is not followed, within the next one hundred and eighty days, by filing of the appeal with the court clerk’s office based on the labour judge or notice by the counterparty of request for an attempt at conciliation or arbitration, even if a precautionary appeal is filed before the case according to articles 669-bis, 669-ter and 700 of the code of civil procedure”.