Rito Fornero, the Supreme Court intervenes on the scope of the opposition phase (Il Quotidiano del Lavoro de Il Sole 24 Ore, 23 maggio 2019 – Enrico De Luca, Antonella Iacobellis)
On 15 May 2019, by order no. 13025, The Supreme Court returned to deal with the right of the judgment of first instance established pursuant to Article 1 (51) Law no. 92/2012 (“Fornero’s Law”) to be recognized in the second phase (so-called opposition phase).
The Court of Cassation has observed that the opposition phase must be understood not as a mere revisio prioris instantie of the first phase (“summary phase”), but as a real continuation of the first instance judgement that is re-expanded acquiring the characteristics of the ordinary procedure.
On this point, it pointed out that “in the event of mutual unsuccessfulness in the summary phase and opposition by only one of the parties, the other party may, in the phase with full knowledge of the facts, with the statement of defence, re-submit the unsuccessful applications and objections, even after the expiry of the time limit for filing an independent opposition and without the need to formulate a counterclaim with the relative application for the setting of a new hearing pursuant to art. 418 of the Code of Civil Procedure, considering that the opposition is not contestable, but produces the re-expansion of the judgement, calling on the judge of first instance to examine the scope of the original appeal for dismissal in the fullness of full knowledge”.
Expounding upon the facts of the case, a worker had brought an action before the Court of Caltanissetta to have the disciplinary dismissal ordered by his former employer’s bank ordered illegitimate/null/invalid.
Both in the first phase of the Fornero and in the opposition proceedings, the Court of Caltanissetta confirmed the illegitimacy of the dismissal de quo, granting the worker exclusively indemnification protection. The employer was, in fact, ordered to pay compensation in the amount of 12 months’ salary.
At the opposition stage, the same Court had also held that the employer had lost the right to lodge a cross-appeal, given that no appeal had been lodged within 30 days of the publication of the court order. The employer, on the other hand, had filed 10 days before the scheduled hearing for the opposition proceedings.
The decision of the judge of first instance was appealed: (i) mainly, the worker claiming, among other things, greater protection – the reintegration or compensation but in the amount of 24 months – and (ii) in the alternative, the employer. In particular, the latter banned the withholding of the cross-appeal, reiterating the same grievances expressed with the cross-appeal already considered inadmissible at first instance.
The Court, which had territorial jurisdiction to reject the grounds of complaint put forward by the parties, dealt in particular and mainly with the employer’s cross-examination complaint.
According to the District Court, the decision of the Court of First Instance that the cross-appeal was inadmissible (with the result that the ruling on the unlawfulness of the dismissal was indisputable) was correct. This is because, in the context of the opposition judgement of the so-called ‘Fornero’s Law’, the discipline of late appeal set out in art. 334 criminal code cannot be applied.
The Court of Appeal’s ruling was challenged by the worker on two grounds and the employer, on cross-appeal, on four grounds. For our purposes, it is important to focus on the first means of redress proposed by the employer.
Specifically, the employer reported “the violation and misapplication of Article. 1 (51) of Law no. 92/2012 in so far as the Court of Appeal confirmed the belatedness, already declared in first instance, of the request for partial reform of the ordinance pursuant to Article 1, paragraph 49, Law no. 92/2012 “formulated” by the same at the time of filing on grounds of the appeal against the order in first instance of Fornero Law proposed by the worker.
This plea was considered by the Supreme Court to be preliminary and absorbed by the question of the legitimacy of dismissal for just cause and, therefore, addressed primarily.
The Judges of the Supreme Court, in accepting the plea in question, took up the dictates of the ruling of the Joint Civil Sections no. 19674 of 2014, whereby the particular nature of the Fornero Law – aimed at speeding up the process relating to the application of the protections under the new Article 18 of Law no. 300/70 – lies in the division of the first instance proceedings into two phases: one with summary knowledge and the other, defined as opposition, with full knowledge, with access for the parties to all admissible necessary proceedings and relevant to the ordinary procedure.
Thus, what happens as to the second stage of opposition? When one of the parties lodges an “opposition with an appeal containing the requirements of Article 414 of the Code of Civil Procedure, to be filed before the court that issued the opposite measure, under penalty of forfeiture, within thirty days of its service, or of the communication if earlier” (paragraph 51), the aptitude of the order issued at the summary stage to acquire the stability of the thing being judged ceases to exist (cf. Cass. No. 17443 of 2014; Court of SS.UU. n. 19674/2014 cit.), which only follows if it is not opposed by anyone within the term of limitation provided for (see Court of Cassation n. 21720 of 2018, in justification)”. So much so that “following the opposition, the order shall be replaced in its entirety by the judgment delivered at the end of the second stage which “provides … the granting or rejection of the application’ (paragraph 57, which refers to the same wording as paragraph 49) and not simply the revocation or confirmation of the order issued’.
In other words, according to Ermellini, the express reference
– to art. 414 Code of Civil Procedure, as to the requirements of the opposition appeal,
– to art. 416 Code of Civil Procedure, as regards the Memorandum of Appearance, and
– to art. 421 Code of Civil Procedure, with regard to the official powers of the judge
cannot but imply that the opposition must be modelled on the discipline of the ordinary first instance judgement referred to in Articles 413 et seq. of the Code of Civil Procedure, to which reference must be made to supplement the special judgement referred to in paragraphs 51-57 of article 1 of Law no. 92/2012.