Incompleteness of the notice of commencement of the collective dismissal procedure: unlawful dismissal

With its judgement No. 6792 of 21 March 2018, the Court of Cassation dealt with the completeness of the notice of commencement of the collective dismissal procedure under article 4 of Law No. 223/1991.  In particular the Court, in compliance with the stance of the judges ruling on the merits of the case, stressed that said notice amounts to fundamental compliance for the profitable participation of the trade unions in the co-management of the crisis and for the transparency of the employer’s decision-making process.  The foregoing entails that the employee may lawfully assert the incompleteness of the notice as a flaw of the dismissal notified thereto and that the subsequent reaching of a trade union agreement will not cure in itself the lack of information. In the Court’s opinion, the duties of information must accompany the beginning of the procedure by communicating the entire reasons leading to the surplus situation, as well as the number, the position within the company and the professional profiles of the staff deemed to be in excess. It will only be like this, according to the Court, that it may be possible to check the connection between the company’s needs and the identification of the staff to be dismissed. And, in the case at issue, the real reasons for the reorganisation were to be found not only in the vague drop in turnover, as shown in the notice, but also in the merger project resolved upon. In this respect, even if it is true that, pursuant to section 2112 of the Civil Code, the employer transferor is however entitled to notify the dismissals deemed necessary, this does not exclude the obligation, after having taken the decision to reduce the staff, to fulfil the communication obligations by acting in a transparent way, such as to allow the trade unions to fulfil a guarantee purpose as requested by law.