Verbal dismissal: appeal and time limit, a confirmation from the Court of Cassation

With its order 25561 of 12 October 2018, the Court of Cassation handed down its ruling on the time limits by which the dismissal of an individual announced verbally can be challenged. In fact, the concept according to which this type of dismissal is not subject to the 60-day time limit but the limitation period of 5 years, was reiterated.

The Facts

This case originates from an appeal filed to the Court of Cassation against a ruling of the Court of Appeal having jurisdiction, which had admitted the first instance ruling declaring that a dismissal announced verbally was not effective.

In particular, the local Court had, among other things, found that the appellant’s complaint regarding the forfeiture of the worker’s right to challenge the dismissal lacked grounds, as it considered that Article 6 of Law 604/1966 was applicable, in light of the uncontested verbal nature of the dismissal in question.

The Court of Cassation reviewing the ruling rejected the appeal and ordered the appellant to pay the court fees.

Here we will discuss the second of the two reasons put forth by the Court of Cassation, i.e. the alleged violation and/or incorrect application of Article 6 of Law 604/1966, as subsequently amended, and therefore the supposedly unlawful rejection of the preliminary objection relating to time limits, due to the lack of legal action.

According to the appellant, the court in charge had overlooked the lack of legal action against the dismissal within the time limits set by the law and, in any case, the lack of a formally valid legal action prior to the establishment of a ruling declaring the unlawfulness of the dismissal.

The ruling of the Court of Cassation

The legislative data which the Court of Cassation initially applied was precisely the above-mentioned Article 6, par. 1, as amended by Article 32 of Law 183/2010, which reads: “the dismissal must be challenged within 60 days from receipt of its communication in writing or the communication of the reasons thereof, also in writing, under penalty of forfeiture, or where not simultaneous, by any written document, including an extra-judicial document which appropriately indicates the will of the worker (…)”. This legal action is considered to be ineffective if not followed by submission of an appeal to the Registry of the Court acting as Labour Court (Article 6, par. 2 of Law 604/1966), within 180 days.

In fact, with its order analysed herein, the Court of Cassation reiterated its own established principle (inter alia, Court of Cassation, Labour Section, Judgement no. 10547 of 20 May 2016; and Judgement 22825 of 9 November 2015), based on which the action aiming to render the verbal dismissal ineffective is not subject to the obligation to start an out-of-court action, due to the absence of a written document based on which the time limit for the appeal could be measured, pursuant to Article 6 above.

Therefore, in this case, as the verbal nature of the dismissal was not contested, the Court of Cassation ruled that the Court of Appeal correctly considered that the 60-day time limit under Article 6 of Law 604/1966 was not applicable, thereby making the dismissal subject only to the set limitation period.

Conclusions

Essentially, based on the ruling in question and the principle it was based upon, a worker who is dismissed verbally is not required to challenge the dismissal within 60 days (the time limit). A worker can therefore challenge it within the limitation period of five years from the time it is announced pursuant to Article 1442 of the Italian Civil Code.