With judgment no. 16630 of 14 June 2024, the Italian Court of Cassation ruled that to reinstate the employment relationship under Article 18, paragraph 10, of the Workers’ Charter, it is sufficient for the employer to send the notice of revocation of dismissal within 15 days of the notice of dismissal, although it is not necessary for this notice to be received by the employee in the same time frame.
An employee was dismissed for justified objective reasons by letter of 17 January 2018. The worker challenged the dismissal with a certified email sent to the company on 13 February 2018 and received by the employer on the same date.
On 1 March 2018 the employee received a telegram, sent to her by the company on 28 February 2018, revoking the dismissal and containing a request to return to work.
The employee claimed that the revocation was late and did not comply with the employer’s request.
Due to the worker’s unjustified absence which lasted for more than three days, the company dismissed her for just cause.
The employee brought legal proceedings, objecting to the lateness of the revocation of the first dismissal, as it had been received by her after the deadline of 15 days for challenging the dismissal.
The first instance judges as well as the court of appeal rejected the applicant’s claims. They noted that the revocation of the first dismissal was to be considered in time, since – in terms of revocation of the dismissal – the “principle of splitting the effective date of the document” (principio di scissione degli effetti dell’atto) applies.
The Italian Court of Cassation – in confirming the ruling of the court of appeal – noted, preliminarily, that revocation of dismissal, introduced by Italian Law no. 92/2012 and governed by Article 18, paragraph 10 of the Workers’ Charter is the employer’s unilateral right to safeguard his/her own rights and to which the worker is subject.
According to the Court of Cassation judges, this is a sort of “self-defence” (autotutela), which can be exercised by the employer, which results in the reinstatement of the relationship without interruption and without the need for a similar indication of consent by the employee.
The only necessary condition established by the law is that the revocation is carried out within 15 days of the notice to the employer that the dismissal is being challenged.
The Italian Court of Cassation judges held that, starting from an analysis of the wording of the provision – which anchors the start date (dies a quo) to the notice of the dismissal challenge and the expiry date (dies ad quem) to the date of the revocation, the absence of an express reference to the notice to the concerned party, “leads us to consider that the mere sending of the revocation to the worker within the prescribed period and not its receipt within the same period is sufficient”.
Other related insights:
By order no. 10663 of 19 April 2024, the Italian Court of Cassation stated that the employer bears the burden of proof in proving that remuneration has been properly paid.
The worker filed an application for summary judgment to obtain an order against the company to pay the amount indicated in the November 2015 pay slip.
In the first instance, the first instance Court found that the payment was due to the worker.
The company appealed to the Court of Appeal. The Court of Appeal upheld the first instance decision, ruling that the employer had not discharged its burden of proof relating to proving in court that the sum had been paid.
The Italian Court of Cassation – confirming the Court of Appeal decision – preliminarily noted that, once the existence of an employment relationship has been ascertained, the employer is under a strict duty of proof to establish that the remuneration has been paid. The employer can do this by means of the normal documentation i.e., regulatory pay slips bearing the worker’s signature. If the employer cannot prove that it has paid the remuneration due to the employee through pay slips, it must provide appropriate documentation of the relevant payments that it has made in relation to the employee’s individual claims.
According to the Italian Court of Cassation, giving employees at the time of payment of remuneration a statement containing an indication of all the constituent elements of the remuneration does not prove payment where the worker states that it is inconsistent with the remuneration actually paid.
According to the Italian Court of Cassation, the burden falls on the worker only if he/she, after signing the pay slip, alleges that the remuneration indicated in the pay slip is inconsistent with the remuneration paid.
As the present case did not fall within the latter situation, the Italian Court of Cassation rejected the company’s appeal.
Other related insights:
In judgment no. 32412 of 22 November 2023, the Italian Court of Cassation dealt with the lawfulness of a dismissal by the formal employer of a worker employed under a sham outsourcing contract.
A worker brought legal proceedings to obtain a declaration of the existence of an employment relationship with the principal company, and that, consequently his dismissal was ineffective because it was ordered by the contractor and not by the ‘actual’ employer. The worker also sought reinstatement. The Italian Court of Cassation, hearing the case, first affirmed that the worker was not precluded from bringing legal proceedings for a declaration of the existence of a sham intermediary and to obtain the recognition of an employment relationship with the principal including in the event of dismissal by the contractor. The Italian Court of Cassation also established that in the case of a sham intermediary, the power to dismiss must in any case be exercised by the actual employer and not by the sham one, under penalty of ineffectiveness of the dismissal; the actual employer, in fact, cannot rely on the contractor’s dismissal as an act affecting management of the relationship.
By order no. 10734 of 22 April 2024, the Italian Court of Cassation ruled that, in the event of a failed conciliation attempt, as required under Article 7 of Italian Law no. 604/1966 in the case of dismissal for justified objective reasons of workers hired before March 2015, the employer is not required to send the employee notice of dismissal, as the indication of the intention to interrupt the relationship contained in the minutes drawn up before the Local Employment Inspectorate (Ispettorato Territoriale del Lavoro, ‘ITL’) is sufficient.
As a result of the conciliation attempt held before the ITL under Article 7 of Italian Law no. 604/1966, the minutes of failure to conciliate were drawn up, in which the employer’s intention to proceed with the dismissal of the employee for justified objective reasons was formally stated.
Subsequently, the worker challenged her dismissal, objecting, in the first place, that it was ineffective because it was not in writing.
As part of the so-called ‘summary phase’ of the Fornero Proceedings, as well as in the subsequent opposition phase, the Judge found that the dismissal had not been in writing, with a consequent order against the employer to reinstate the employee.
The employer appealed to the Italian Court of Appeal which overturned the judgment handed down in the context of the opposition phase.
The Italian Court of Appeal ruled, on the one hand, that there had been written notice of dismissal because the intention to terminate the employment relationship was contained in the minutes signed by both parties at the end of the procedure under Article 7 of Italian Law no. 604/1966. However, the Court also held, on the other hand, that as the principle of fairness and good faith had been breached with respect to the choice of the worker to be dismissed, the dismissal was unlawful and made an order against the employer under the provisions of Article 18, paragraph 7, of the Italian Workers’ Charter.
The employee appealed against the judgment before the Italian Court of Cassation and the company, as well as submitting a defence lodged, in turn, a cross-appeal.
The Italian Court of Cassation – in upholding the second instance judgment – noted, first of all, that the purpose of a written notice of dismissal lies in the need to make the employee aware of the action interrupting the relationship.
This function – the Court continued – is fulfilled if the intention to proceed with the termination is formally stated by the employer, in an institutional setting (such as the ITL where the conciliation attempt under Article 7 of Italian Law no. 604/1966 is held), in minutes that are also signed by the employee.
The legislative wording of Article 7, paragraph 6, third sentence of Italian Law no. 604/1966 (“If the conciliation attempt fails and, in any case, the deadline referred to in paragraph 3 has elapsed, the employer may give notice of the dismissal to the worker”) outlines a legal condition (precedent) and a term (dilatory). For this reason, once the first has been fulfilled or the second has expired, the employer “may give the employee notice of the dismissal”.
With regard to the meaning to be attributed to the legal condition precedent (i.e., the failure of the conciliation attempt), according to the Italian Court of Cassation “the literal reading” suggests that the legislator “has given importance to the objective failure of the conciliation attempt rather than to the chronological and formal date of the finalisation of the minutes drawn up in the local conciliation commission”.
Moreover, the Court continues, “the wording of the provision does not require that the notice of dismissal which may be given by employer ‘if the conciliation attempt fails’, must take place in a different context and subsequent to that of the aforementioned minutes”.
In this sense, the Court argues, “nothing to protect the interests of the worker could plausibly justify the assumption that the notice of dismissal to the worker must necessarily take place in a context distinct from the minutes drawn up at the meeting before the appropriate commission, provided of course that the notice of dismissal already stated in that forum complies with the additional provisions on dismissal, starting with that of the [notice being] in writing under Article 2, paragraph 1 of Italian Law no. 604/1966”.
According to the Italian Court of Cassation judges, it follows that, where the conciliation attempt under Article 7 of Italian Law no. 604/1966 fails and the employer confirms his or her intention to terminate the relationship, there is no need to subsequently send the employee a letter of dismissal.
On these grounds, the Italian Court of Cassation therefore rejected the appeal brought by the worker, confirming that she was only entitled to compensation and not reinstatement.
Other related insights:
An employee dismissed for drug trafficking has been reinstated and compensated. The drug related conviction occurred in the past and pre-dated the employment, when the company took over the staff from the outgoing company after taking over a contract held under a public administration tender. The Italian Court of Cassation, employment division, by order no. 8899 of 4 April 2024 held that the material fact existed but that this did not give rise to a legal ground: an old conviction has no disciplinary relevance where the employer does not prove “the relevance of the old facts on the relationship’s operation”. A criminal judgment that becomes final during the relationship, onthe other hand, may trigger the employer’s withdrawal for just cause if the relationship of mutual trust with the company fails.
Continue reading the full version published on (Italia Oggi, page 14).
