The Appeals Court judge may acquire new documents. The Court of Cassation with its ordinance 11068/2021 ruled on the violation and/or false application of article 414 numbers 4 and 5 and article 420, paragraph 1 of the Code of Civil Procedure, in relation to article 360, paragraph 1, number 3 of the same Code, regarding the Appeals Court of Catania considering the presentation of a document admissible (specifically, the ruling of the Court of Catania on which the judgement exception is based), at the hearing and, thus, submitted late, without the plaintiff providing proof of the existence of serious motives and without the judge’s authorisation.
One of the fundamental characteristics of the labour proceedings consists in a particularly incisive commitment of the regime of preclusion, which requires both parties of the proceedings to submit their briefs of first instance including all of the respective claims, exceptions, requests for evidence and presentation of documents, unless the presentation is not justified by the time of their formation or, the evolution of the trial subsequent to appeal and the memorandum of appearance. For the appeal judgement, article 437, paragraph 2, of the Code of Civil Procedure states that “new evidence is not admissible except for the estimatory oath, unless the judicial panel, including court-appointed, considers it indispensable for the purpose of ruling on the case”.
According to the ordinance in question, the judge must evaluate the admissibility of documents presented on appeal in terms of their relevance regarding the indispensability for the purposes of the ruling, with an evaluation on the potential demonstrative suitability in relation to thema probandum, with reference to the development assumed by the entire case.
Therefore, the occurrence of preclusions or prescriptive time periods to the detriment of the parties does not hinder admission of the evidence by the court, since it is a power aimed at overcoming any remaining doubts from the findings, normally entered in the record of the court of first instance. The new evidence, ordered by the court, is functional only for the fundamental review of the elements already present in the trial reality. Consequently, it is not a question of prescriptive time period or preclusion impending on the parties.
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