Dismissal: suspension of terms of appeal in the emergency period and appeal methods

1. Suspension of terms for appealing the dismissal in the emergency period

Art. 6 of Italian Law no. 604/1966 states that:

• the dismissal, under penalty of forfeiture, must be appealed within 60 days from receiving the respective communication and
• the appeal is ineffective if it is not followed up, within a subsequent 180 day period, by the filing of the appeal in the clerk’s office of the Court identified based upon the employment judge.

That said, Article 83, paragraph 2 of the Cura Italia Decree, and Article 36, paragraph 1 of the Liquidity Decree, laid down, among the measures to combat the health emergency due to the spread of the COVID-19 virus, the “extraordinary” suspension of procedural terms from 9 March 2020 until the following 11 May.

In relation to appealing a dismissal, the Court of Milan, with measure dated 14 October 2020 no. 5145, stated that the suspension of the terms in question does not apply only to the term of 180 days relating to the judicial appeal of the dismissal but also to the forfeiture period of 60 days relating to its extrajudicial appeal.

In the Court’s opinion, a restrictive interpretation would contrast with the unitary nature of the two terms of appeal and with the “rationale of the urgent decree to limit the negative consequences of the pandemic also for the jurisdictional protection of rights”.

• Appeal methods

From another profile, the Courts of Rome and Palermo recently focused on the appeal of the dismissal, sent by certified email as an annex – scan of the original – and thus an image copy not containing the authentic signature of the interested party.

The Court of Rome, with its ruling dated 20 October 2020, no. 86577, declared that the dismissal may be appealed, indifferently, both (i) by attaching to the certified email an electronic document (known as “digital native document”) and (ii) by sending the scan of the paper document signed by the lawyer and by the interested party, even if not having any digital signature.

The Court of Palermo took a different stance, with its ruling dated 28 October 2020, no. 30615, declaring ineffective the appeal of the dismissal sent by the employee’s lawyer to the employer, by certified email, if it is not accompanied by the digital signature or by a certification of conformity of the documents.

It is hoped that the case law contrast that has now come to light on the issue will soon be resolved by a decision of the Supreme Court or by a regulatory change.

Establishing, in fact, whether or not the appeal as an image copy is effective is crucial in deciding if the document thus produced has the value of a document interrupting the limitation period indicated in Art. 6 of Italian Law no. 604/1966.

Other insights related:

• The point on the challenge of the dismissal in the face of very recent case-law 
• DID YOU KNOW THAT… The Cura Italia Decree introduced a ban on dismissals?