Employees who are compulsorily employed cannot be dismissed if they fall below the special reserve (Il Quotidiano del Lavoro de Il Sole 24 Ore, 31 October 2019 – Vittorio De Luca, Antonella Iacobellis)

The Court of Appeal, by ruling 26029 dated 15 October 2019, reconfirmed that the dismissal of a compulsorily employed employee must be considered voidable in the context of a collective staff reduction procedure if, at the time of the termination of the employment contract, the number of remaining compulsorily employed employees is less than the special reserve and clarified that the consequences of the aforementioned voidability of the dismissal must be attributed to those actionable in the case of unlawful dismissal due to ascertained breach of the selection criteria. The case on which the Supreme Court was called upon to decide refers to an employee hired under the mandatory placement regulations, dismissed in the context of a collective procedure. The regional courts, called in the first and second instance to decide on the employee’s request aimed at obtaining a declaration of unlawfulness of the dismissal with all legal consequences, had accepted the request, sentencing the company to reinstate said employee in the workplace and to pay compensation equal to 12 monthly salaries of the final overall de facto remuneration. The Rome Court of Appeal had specifically confirmed the first instance decision based on the assumption that it was undisputed that he was a mandatorily hired employee, on the circumstance to be considered amicable under internal ruling, given that the employee had not provided evidence to the contrary, that, at the time of the termination of the employment contract the number of mandatorily employed employees was less than the special reserve. The company filed an appeal against the ruling of the Court of Rome, supported by a single ground. The employer claimed that it had not selected the disabled individual to dismiss him, but having applied a clause of the union agreement that provided for the outsourcing of the department in which he worked and having, in any case, offered the employee a relocation within the same production site and to the same tasks that he previously carried out, employed by the department’s contracting company, an offer that he had rejected. The Court of Appeal, in rejecting the employer’s ground of appeal, echoing the text of Article 10, paragraph 4, of Law 68 of 1999, according to which the dismissal referred to in Article 4, paragraph 9 of Law number 223 dated 23 July 1991, namely, dismissal to reduce the workforce or to for justified objective reason, exercised against the mandatorily hired employee, is voidable if, at the time of termination of the employment contract, the number of remaining mandatorily hired employees is less than the special reserve provided for by Article 3 of this law, specified as follows.