DLP Insights

Unlawful collective dismissal for breach of selection criteria: mitigated reinstatement protection

Categories: DLP Insights, Case Law | Tag: Unlawful collective dismissal

29 Jun 2021

The Court of Cassation, in ruling no. 10992 /2021, stated that if there is an unlawful collective dismissal due to non-compliance with the communication system established by art. 4, paragraph 9 of Law 223/1991, which constitutes a “procedural violation”, the indemnity protection quantifiable between 12 and 24 months’ salary is applicable after the employment termination declaration. For cases of collective dismissal declared unlawful due to non-compliance with the selection criteria under Art. 5 of Law no. 223/1991, mitigated reintegration protection applies.

Facts of the case

The case originated from a dismissal made as part of a collective redundancy procedure due to outsourcing a service based on the production reorganisation. Notably, an employer had dismissed one of its employees assigned to a specific department, claiming the role’s redundancy.  The department in question was kept in operation after the dismissal and outsourced two years later. 

According to the Court of Appeal, the employer company had not adequately justified its decision to dismiss the employee in the face of the service outsourcing, and it considered that the selection criteria had been violated. The Court ordered the employer to reinstate the employee and pay him 12 months’ compensation and social security contributions from the date of dismissal to reinstatement.

The company appealed to the Court of Cassation, claiming the flawed application of the mitigated reintegration protection provided for by Art. 18, paragraph 4, Law 300/1970 instead of the indemnification provided for in paragraph 5 of that Article.

The Supreme Court of Cassation’s ruling

The Court of Cassation pointed out that this is not an individual dismissal for justified objective reasons for which the employee’s choice to be dismissed is not entirely free but restricted by the prohibition of discriminatory acts and the fairness rules provided for in Articles 1175 and 1375 of the Civil Code, “since reference may be made to the criteria laid down by Law no. 223 of 1991, art. 5, as standards particularly suited to allow the employer to exercise its selective power consistently with the worker and company interests.”

The Court of Cassation specified that this case concerns the termination of a collective dismissal procedure. And referring to previous case law, stated that Art. 5, paragraph 3, of Law 223/1991, in relation to art. 18, paragraph 4, of Law no. 300/1970, for a personnel reduction in breach of the selection criteria laid down in Art. 5, the mitigated reintegration protection (cancellation of dismissal, reinstatement in the workplace and payment of an indemnity not exceeding 12 months’ salary) is applied.

At the end of the proceedings, the Court of Cassation rejected the appeal and upheld the decision of the Court of Appeal, ruling that the dismissal was unlawful for lack of selection criteria and ordered the company to the consequences set out in art. 18, paragraph 4, of Law 300/1970.

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