Court of Cassation: the option of the indemnity in lieu of reinstatement terminates the employment

With its judgment No. 709 of 18 January 2016, the Court of Cassation has laid stress on the fact that, in so far as real protection is concerned, when an employee informs the employer to opt for the indemnity in lieu of reinstatement, the employment will be terminated. This will apply even if the employer has not paid the aforesaid indemnity, there being no salary obligation whatsoever for the following period, in which work is neither due nor demanded. The obligation to pay the indemnity in lieu of reinstatement is thus subject to the rules of mora debendi. In other words, in the event of the employer’s breach, the employee may only obtain that the former is ordered revaluation and interest from the date on which the employee opted for the indemnity in lieu of reinstatement until the respective effective payment, subject to evidence of greater damage incurred, whereby the relevant burden of proof will rest on the employee.