The Supreme Court of Cassation, in its Order no. 17051, published on 16 June 2021, stated that if a dismissal is declared unlawful, the aliunde perceptum resulting from a work compatible with that carried out in favour of the employer ordered to reinstate the employee should not be deducted from the appropriate compensation.

Facts of the case

The case is based on a local court’s ruling, upheld by the Court of Appeal, regarding the legitimacy of a dismissal, a reinstatement order to the employer and compensation payment. 

The second instance ruling was overturned by the Court of Cassation concerning the employer’s objection to the aliunde perceptum and referred the case back to the Court of Appeal. 

In the Judicial review, the Court of Appeal considered that the documents produced by the employer were insufficient to prove that the employee had worked as an employee of another company after his dismissal.

Following an order to produce suitable documentation under Art. 210 of the Civil Procedure Code, it appeared that the employee had carried out a self-employed activity before his dismissal. 

From this assumption, the Court of Appeal deduced that the extra work and the work carried out for the employer were compatible with each other, thus rejecting the employer’s objection regarding the aliunde perceptum.

The employer appealed to the Court of Cassation, complaining that the Court of Appeal’s decision was based on a new circumstance (i.e., carrying out additional work prior to the dismissal) and claiming the violation of the rules on presumptive reasoning.

The Supreme Court of Cassation’s ruling

Leaving aside the purely procedural aspects dealt with by the Court of Cassation, it confirmed the decision of the Court of Appeal concerning the non-deductibility of the aliunde perceptum in this case.

The Supreme Court, citing similar cases, stated: “In terms of individual dismissal, the compensation for employment or self-employment – which the employee receives during the period between their dismissal and the annulment ruling (the intermediate period) – does not involve the corresponding reduction of damages for unlawful dismissal, if that work is compatible with the simultaneous continuation of the work which was suspended following dismissal. In this case, the work was carried out alongside the work which was suspended prior to dismissal.”

In this case, the Court of Cassation did not find any fault with the presumptive reasoning followed by the Court of Appeal in reaching its decision. This is because “in evidence by presumption, under Articles 2727 and 2729 of the Civil Code, it is not necessary for there to be a link of absolute and exclusive causal necessity between the known fact and the unknown fact. It is sufficient that the unknown fact can be unequivocally inferred from the known fact, according to a judgement of probability based on id quod plerumque accidit.”

The Court of Cassation explained that, with adequate and logical reasoning, the local Court pointed out that the self-employed service provided by the employee dated back to when he was already working for the employer who had dismissed him and it was simultaneous.

According to the Court of Cassation, it follows that, since the two activities carried out were compatible, the remuneration for the extra-work should not have been considered for any aliunde perceptum relevant to the compensation aspects of the unlawful dismissal.

Other related insights:

According to Supreme Court n. 4056 of February 16, 2021: “the aliunde perceptum is not exception in the strict sense and is therefore detectable ex officio by the Judge if the relevant factual circumstances are duly acquired during the trial. For this reason, the exception of deduction of the aliunde perceptum is not subject to the specific and timely allegation of the party and is admissible even on appeal, as it must be considered sufficient that the facts are ex actis “.

So the aliunde perceptum exception:

– is always detectable ex officio, since it is not an exception in the strict sense,

– and therefore, it can also be formulated on appeal, provided that the relevant factual circumstances have been duly acquired in the case.

In fact, the regime of exceptions depends on the primary value of the process, consisting of the justice of the decision, which would remain altered in the event that the issues detectable ex officio were subject to the preclusive limits of allegation and proof provided for the exceptions in the sense strict.

Continue reading the full version published in Norme & Tributi Plus Diritto de Il Sole 24 Ore.

The Court of Appeal, by ruling no. 25355 dated 9 October 2019, stated that employers that claim earnings from other work or sources to be deducted from the compensation due to employees are required to enclose specific factual circumstances and to provide timely specifications, proving general requests for evidence or requests for evidence for purely investigative purposes to be inadmissible. The background that the Supreme Court examined was, essentially, as follows. A claims adjuster was dismissed by the insurance company he worked at as a result of disciplinary proceedings against him for having committed grossly negligent conduct. The employee had specifically been challenged for not having carried out, in 18 instances, all the preparatory and preliminary activities necessary to ascertain the actual occurrence, as well the dynamics of the events relating to claims and the consequent reported injuries. The Court of Cosenza had rejected the opposition pursuant to Article 1, paragraph 51, of Law 92/2012, proposed by the employee and by the insurance company against the order issued in the summary phase. In partial acceptance of the appeal against the dismissal, the employment contract was thereby declared terminated and the insurance company was ordered to pay compensation equal to 20 monthly salaries of the final overall de facto remuneration. The insurance company filed a complaint on appeal and the employee entered an appearance by proposing a cross-appeal. The District Court considered the 18 disputed incidences, noting, however, that “the considerable workload allocated to the employee led (in any case) to the irrecoverability (editor’s note: had in any case led to the irrecoverability) of the knowledge of the anomalies which, indeed, had been (allegedly) identified, by the employer, only following a costly and worthwhile investigation”. The jurisdiction of the local Court of Appeal accepted the employee’s cross-appeal and nullified the imposed dismissal, ordering: – on the one hand, the insurance company to reinstate the employee, sentencing it to pay, from the date of dismissal to the date of reinstatement, the social security and welfare contributions, plus interest – and, on the other hand, the employee to return the sum equal to 8 monthly salaries of the overall de facto remuneration, plus ancillary costs, fully paid up. Furthermore, the Court of Appeal rejected the objection to payment of earnings from other work or sources raised by the employer, claiming that “specific elements, capable of accounting for less damage to be compensated” were not offered. The insurance company filed an appeal against this ruling on four grounds and the employee challenged it with a counter-appeal. As far as we are concerned we only report the fourth ground of appeal with which the insurance company claimed the “omitted and/or insufficient grounds regarding a controversial fact is decisive for the judgement; the criticism refers to the rejection of the exception of earnings from other work and sources; the appellant party accuses the Court of Appeal of not having carried out the necessary investigations in this regard, as, however, it was obliged to do”. The Supreme Court, upon rejecting the aforementioned ground of appeal, stressed, inter alia, that the Court of Appeal had correctly applied the principle of law, according to which “employers that claim earnings from other work or sources to be deducted from the compensation due to employees are required to enclose specific factual circumstances and, in order to fulfil their related burden of proof obligation, they are also required to provide timely specifications, proving general requests for evidence or requests for evidence for purely investigative purposes to be inadmissible (ex plurimis, Court of Appeal No. 4999 of 2017)”.

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