In ruling no. 26246 of 6 September 2022, the Court of Cassation resolved the legal contrast about the statute of limitations start date for employee claims in companies with more than 15 employees, clarifying that, after Law no. 92/2012 ( “Fornero Reform”), the statute of limitations no longer starts during the employment relationship.
Some employees of a company with the size requirements under Art. 18 of the Workers’ Statute brought an action before the Employment Tribunal to obtain recognition of their right to receive remuneration differences, exceeding the five-year statute of limitations for overtime night work performed.
The Court of First Instance of Brescia dismissed the applicants’ claims, ruling that, even after the amendments to Art. 18 of the Workers’ Statute introduced by the Fornero Reform, the employment relationship continues to be protected by real protection, which entails the statute of limitations period starting during the employment relationship.
The Brescia Court of Appeal upheld the Court of First Instance’s decision, denying the claimants’ right to the differences exceeding the five-year statute of limitations.
With a single ground of appeal, the employees challenged the appeal ruling alleging breach of Articles 2935, and 2948, no. 4 of the Italian Civil Code, 18 Law no. 300/1970, 36 of the Italian Constitution, by the local Court, based on the Constitutional Court’s rulings no. 62 of 1966, no. 143 of 1969, no. 174 of 1972) and the Supreme Court case law, which confirmed the validity of the relationship stability regime despite the amendment of the regulation on dismissals with the reforms of Law no. 92/2012 and Legislative Decree no. 23/2015 ( “Jobs Act”).
The Supreme Court of Cassation, in upholding the appeal brought by the employees, preliminarily ruled that, in line with the constitutionally oriented interpretation of Art. 2948, no. 4 of the Italian Civil Code, the statute of limitations starts during the employment relationship only when reinstatement is the foreseeable penalty “against any unlawful termination.”
According to the Supreme Court, the changes made by the Fornero Reform and Jobs Act to the regulation on dismissals eliminated this stability. This determined the change from an automatic application of reinstatement protection to every case of dismissal illegitimacy to a selective application of the protections.
On these assumptions, the Supreme Court ruled, that the open-ended employment, as regulated by the Fornero Reform and Jobs Act, lacks the prerequisites of predetermined terminations and their adequate protection, and is not assisted by a stability regime.
This means that the rights that are not lapsed at the time of the entry into force of Law no. 92/2012 (18 July 20012), are subject to a statute of limitations which starts from the employment termination, including for employees of companies meeting the size requirements under Art. 18 of the Workers’ Statute.
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