The selective criterion based on the number of employees is unsuitable to legitimise a diversification of the consequences of null dismissal
If the nullity of dismissals for exceeding the protected period is confirmed, the special penalty regime under paragraph 7 of Art. 18 of the Workers’ Statute applies. This includes the reinstatement, regardless of the number of workers employed.
In its ruling no. 27334 of 16 September 2022 , the Court of Cassation tackled the complex issue of the choice between compensation and reinstatement, to be granted to an employee unlawfully dismissed at the end of the protected period, i.e., the time during which they are entitled to keep their job during illness.
In the case examined by the Court of Cassation, a worker took legal action against her employer (a company with less than 15 employees) which dismissed her for exceeding her protected period. She requested work reinstatement and damage compensation.
The Courts of first and second instance, found that the dismissal was null and void, excluded the days of absence due to an accident at work from the protected period calculation, however they ordered different types of protection.
The first instance Court ordered reinstatement, while the Court of Appeal ordered compensation, as paragraph 7 of Art. 18 of Law no. 300/1970 is applicable exclusively to employers with more than 15 employees.
Overruling the decision of the Court of Appeal, the Supreme Court ruled that dismissal for exceeding the protected period under Art. 2110, paragraph 2) of the Italian Civil Code is a unique case of dismissal (unrelated to the concept of justified reason under Art. 3 Law no. 604/66). The violation of this article entails the dismissal’s definitive nullity.
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