DLP Insights

Collective redundancies: reinstatement is initiated in case of defective communication

Categories: DLP Insights, Case Law | Tag: Court of Cassation, Dismissal

27 Apr 2022

In ruling no. 9800 of 25 March 2022, the Court of Cassation ruled that – if the notice referred to in Art. 4, paragraph 9, Law no. 223/1991 for the collective dismissal procedure does not correctly specify the criteria for the selection of the workers concerned, the procedure is unlawful and, consequently, the dismissal must be annulled. 

Facts of the case

The Court of Appeal of Reggio Calabria, reforming the first instance ruling, declared the collective dismissal announced by the employer company to the appellants by means of a notice under art. 4, paragraph 9, Law 223/1991, unlawful.

The local Court declared the employment relationship between the parties terminated, ordering the company to pay an indemnity of 12 months’ salary of the last full salary.  This was because the dismissal notice was vitiated by a breach of form and failed to specify points awarded to each worker and the factual data relating to dependent family members, the abstract points provided for each criterion and each worker’s seniority data.

Six of the original workers appealed against the decision on four grounds, with the company responding with a counter-appeal. The public prosecutor concluded that the first grounds of appeal should be upheld and absorbs the others.

The Supreme Court of Cassation’s ruling

According to the Court of Cassation, the failure to specify in the notice, under art. 4, paragraph 9, Law no. 223/91, the criteria for choosing the workers to be dismissed did not allow the worker to understand why they were dismissed and not other colleagues.  It stated that this hindered any challenge to the employer’s termination. That would entail a case of procedural unlawfulness since that failure would not constitute a mere formal non-compliance but would entail a breach of the selection criteria.

In the Court’s opinion, the unlawfulness could only lead to the dismissal annulment and the consequent ordering the employer to reinstate the employees and pay an indemnity not exceeding 12 months’ salary of the last full salary, under art.18, paragraph 4, of the Workers’ Statute. 

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