The Supreme Court of Cassation, in its Order no. 17051, published on 16 June 2021, stated that if a dismissal is declared unlawful, the aliunde perceptum resulting from a work compatible with that carried out in favour of the employer ordered to reinstate the employee should not be deducted from the appropriate compensation.
Facts of the case
The case is based on a local court’s ruling, upheld by the Court of Appeal, regarding the legitimacy of a dismissal, a reinstatement order to the employer and compensation payment.
The second instance ruling was overturned by the Court of Cassation concerning the employer’s objection to the aliunde perceptum and referred the case back to the Court of Appeal.
In the Judicial review, the Court of Appeal considered that the documents produced by the employer were insufficient to prove that the employee had worked as an employee of another company after his dismissal.
Following an order to produce suitable documentation under Art. 210 of the Civil Procedure Code, it appeared that the employee had carried out a self-employed activity before his dismissal.
From this assumption, the Court of Appeal deduced that the extra work and the work carried out for the employer were compatible with each other, thus rejecting the employer’s objection regarding the aliunde perceptum.
The employer appealed to the Court of Cassation, complaining that the Court of Appeal’s decision was based on a new circumstance (i.e., carrying out additional work prior to the dismissal) and claiming the violation of the rules on presumptive reasoning.
The Supreme Court of Cassation’s ruling
Leaving aside the purely procedural aspects dealt with by the Court of Cassation, it confirmed the decision of the Court of Appeal concerning the non-deductibility of the aliunde perceptum in this case.
The Supreme Court, citing similar cases, stated: “In terms of individual dismissal, the compensation for employment or self-employment – which the employee receives during the period between their dismissal and the annulment ruling (the intermediate period) – does not involve the corresponding reduction of damages for unlawful dismissal, if that work is compatible with the simultaneous continuation of the work which was suspended following dismissal. In this case, the work was carried out alongside the work which was suspended prior to dismissal.”
In this case, the Court of Cassation did not find any fault with the presumptive reasoning followed by the Court of Appeal in reaching its decision. This is because “in evidence by presumption, under Articles 2727 and 2729 of the Civil Code, it is not necessary for there to be a link of absolute and exclusive causal necessity between the known fact and the unknown fact. It is sufficient that the unknown fact can be unequivocally inferred from the known fact, according to a judgement of probability based on id quod plerumque accidit.”
The Court of Cassation explained that, with adequate and logical reasoning, the local Court pointed out that the self-employed service provided by the employee dated back to when he was already working for the employer who had dismissed him and it was simultaneous.
According to the Court of Cassation, it follows that, since the two activities carried out were compatible, the remuneration for the extra-work should not have been considered for any aliunde perceptum relevant to the compensation aspects of the unlawful dismissal.
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