No reinstatement if the business is discontinued after the dismissal (Il Quotidiano del Lavoro de Il Sole 24 Ore, 18 February 2020 – Alberto De Luca, Luca Cairoli)

With order 1888 dated 28 January 2020, the Court of Cassation has ruled on a case of dismissal for unlawful justified objective grounds with the consequent reinstatement in the job based on article 18 of Law No. 300/1970 (in the text prior to the amendment brought about with Law No. 92/2012). By expressing a general principle, first of all, the Court has stressed that «the actual protection of the job can in no way go so far as to exclude the possible impact of subsequent vicissitudes entailing the termination of the binding obligation». In the case at issue, with judgment 705/2017 and by reversing the ruling of first instance, the Court of Appeal of Catania declared the unlawful nature of the dismissal served by the employer on 18 July 2005 and ordered the reinstatement of the appellant in the job, regardless of the fact that the total discontinuance of the business had supervened pending the proceedings. The employer brought an appeal before the Court of Cassation against the appeal judgment complaining, amongst other reasons, the breach and the false application of article 18 of Law No. 300/1970 and of section 1463 of the Civil Code. In particular, according to the employer, in the appeal proceedings, the Court allegedly failed to examine crucial facts for the purposes of the reinstatement judgment, amongst which, the discontinuance of the business occurring after the dismissal and the filing of a proof of claim in the composition with creditors with the relevant assignment of assets to the creditors validated at a later stage.  Based on a principle already set forth, the Court of Cassation has deemed that «the reinstatement is an effect of the ruling handed down pursuant to article 18 of Law No. 300/70 unrelated to the exercise of the employer’s potestative rights who, thus, may at all times infer the total or partial inapplicability to the case under dispute» (Court of Cassation 28703/2011). Should the supervened total discontinuance of the business be ascertained in the specific case, it would de facto amount to a cause of actual supervened impossibility not ascribable to the employer such as for the binding obligation to no longer exist, together with the corresponding applicability of the real protection. In light of the principles cross-referenced above, the Court of Cassation has upheld the employer’s appeal by holding that, without prejudice to the unlawfulness of the dismissal, the Court of Appeal could not have in any case ordered the employee’s reinstatement since it had failed to take into consideration, in light of the evidential findings, the actual supervened discontinuance of the business.

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