Resignation cancelled, salary arrears due from the submission of the application (Il Quotidiano del Lavoro de Il Sole 24 Ore, 17 July 2019 – Alberto De Luca, Antonella Iacobellis)

The Court of Cassation, with judgment 16998 on 25 June 2019, returned to analyse the judgment annulling the resignation in regards the salary arrears accrued in the period between the resignation annulment and the judgment itself.

The case originates from legal proceedings to cancel a resignation brought about by a worker who claimed to have acted in a diminished state of capacity.

In court, the resignation was confirmed on first instance and then eventually annulled by the Palermo Court of Appeal, which, accepting the worker’s request, established the worker’s right to previous wages from the effective date of the legal proceedings.

Appealing to the Court of Cassation against the decision, the employer complained – among other reasons – that the principle of law had been incorrect or misapplied, noting that, since the worker had not provided service following the resignation, which was being challenged, the courts should, by law, have limited payment to just the period following the judgment.

The critical legal point under examination is to establish the moment from which the right to the salary arrears for the worker should begin.

In reviewing the decisions, the Court highlighted two trends. The first one, peaceful, in order to fulfil   payment obligations work must have been carried out, and only under the express provision of law (illness or unjustified dismissal under the regime of effective protection) can payment of the former be acknowledged in the absence of the latter. The second one, the subject of much debate, concerns identifying the moment from which, once a judicial decision to annul the resignation has been obtained, the worker is entitled to salary arrears that have accrued: whether this is from the judicial request (Cass. 14 April 2010 no. 8886; Court of Cassation 13 February 2019, no. 4232) or from the date of the judgement (Cass. 17 October 2014 no. 22063; Court of Cassation 06 September 2018, No. 21701).

With this ruling, the Supreme Court has confirmed the view that the right to remuneration arises from the moment in which the judicial application for annulment of resignations is made – the moment in which the resignation is challenged and the employer’s credentials are challenged in default pursuant to Article 1226 of Italian Civil Code – according to the principle that the duration of the process must not be detrimental to the winning party.