The Supreme Court, by its decision no. 28171 of 31 October 2024, confirmed the validity of a dismissal notified to the employee’s previous address if the employee did not promptly notify the employer of his change of residence or domicile.
The employee, challenging the dismissal, challenged the validity of the notification made to his original address, arguing that, because of his transfer, that notification should be considered invalid.
The Court, rejecting the appeal, ruled that “the dismissal sent to the known address is fully effective, if done within the prescribed time limits”, as it is the worker’s responsibility to notify any change of residence or domicile in writing, as stipulated by the NCBAs and by the principle of good faith that governs the employment relationship. In particular, the Supreme Court referred to Article 1335 of the Civil Code, which states that a communication is deemed to be known at the time it is sent to the known address, and clarified that the employee’s failure to communicate the change of residence does not affect the validity of the notification. This principle was also extended to the letter of disciplinary notice, which is therefore to be considered fully effective once it reaches the employee’s original address.
In its decision no. 10104 of 12 October 2024, the Court of Rome ruled that in the case of a disciplinary dismissal without prior notice, there is not a mere formal deviation from the procedural scheme of the regulation, but an actual nullity which always gives the employee the right to reinstatement.
The employee, a pastry chef at a commercial establishment with less than 15 employees, was dismissed for just cause without a prior disciplinary notice.
The employee challenged in Court the disciplinary dismissal inflicted, claiming – among other things – a breach of the procedure laid down by Article 7 of Law 300/1970, since the employer had failed to give him prior notice of the charge.
The Court of first instance of Rome, preliminarily stated that the employer was an enterprise with fewer than 15 employees and that the employee was hired after the entry into force of Legislative Decree no. 23/2015.
In the absence of the dimensional requirement provided for by Article 18, paragraph 8 and paragraph 9, of Law no. 300/1970, it was therefore necessary to identify the protection applicable to dismissal without prior objection, since this hypothesis was not expressly provided by law.
The Judge has therefore reviewed the regulations contained in Legislative Decree no. 23/2015 in order to identify the protection applicable to the case examined.
The Court of Rome has preliminarily excluded the application of Article 3 (paragraph 2) of Legislative Decree no. 23/2015, since, as known, reintegration protection due to the absence of facts is excluded in the case of companies with less than 15 employees.
Nor did the protection provided by Article 4 of Legislative Decree no. 23/2015, which relates to violations of a purely formal nature, apply to the case under review (whereas the complete absence of a challenge does not constitute a mere formal breach, but rather a breach with substantive consequences).
Even the protection provided for by Article 3 (paragraph 1) of Legislative Decree no. 23/2015, which regulates the hypotheses in which “it is established that the grounds for dismissal for objective justified reason or subjective justified reason or just cause do not exist”, appeared to be not applicable to the case examined.
The Court of first instance, therefore, referred to the Supreme Court’s case law, stating that “the nullity of a disciplinary sanction due to a breach of the procedure aimed at its imposition […] falls within the so-called protective nullities, as it is of a mandatory nature and is intended to safeguard the weaker party in the relationship, namely the employee” (Supreme Courte no. 12770/2019).
In line with the aforementioned case law of the Supreme Court, the Court of Rome therefore ruled that the nullity of a disciplinary sanction for breach of the legislative procedure laid down for its imposition falls – precisely – within the category of protective nullity, given that the guarantee procedure laid down in disciplinary matters (by Article 7 of the Labour Statute) is mandatory and is based on the obvious aim of protecting the weaker party of the contract (i.e. the employee).
On those grounds, the Court of Rome – ruling that the said nullity was established, given the failure to comply with the procedure laid down as a guarantee for the employee – upheld the claim brought by the employee, ordering the employer to reinstate him in service.
Other related insights:
According to Article 29, paragraph 2, of Legislative Decree 276/2003 (known as the “Legge Biagi”), in the context of service contracts (“contratti di appalto” in Italian parlance), the principal company or employer is jointly and severally liable with the contractor, as well as with any subcontractors, within two years after the termination of the contract, for the payment of amounts owed to workers for work performed during the contract period, including:
However, joint and several liability does not apply to civil sanctions, for which only the defaulting party is responsible.
Consequently, in the context of service contracts, although the obligation to pay salaries and social security contributions falls on the contractor — the company directly hiring the workers and managing the service contract — Italian law assigns the principal a “guarantee” role regarding these obligations, introducing a genuine joint obligation on the principal.
In concrete, this guarantee allows workers to act against either the contractor or the principal to obtain payment of unpaid salaries owed for work performed under the service contract.
Moreover, the principal’s joint and several liability also applies to compensation and social security obligations of self-employment workers, pursuant to Article 9 of Legislative Decree 76/2013, converted with amendments into Law No. 99 of August 9, 2013.
The principal’s joint and several liability is subject to a two-year limitation period, starting from the termination of the contract. However, this two-year period applies exclusively to claims made by workers, while, according to case law, it does not apply to recovery actions initiated by social security or insurance institutions such as INPS (the Italian National Social Insurance Agency) or INAIL (the Italian National Institute for Insurance against Accidents at Work), which remain subject to a five-year statutory limitation period.
The principal, who, due to joint and several liability, has paid the workers the salaries or contributions owed, may seek recovery from the contractor under the general rules provided by the Civil Code. However, the principal can no longer invoke the benefit of prior enforcement against the contractor, as was allowed until 2017.
Finally, the Court of Cassation recently stated that joint and several liability between the principal and the contractor is not limited to contracts formally classified as “service contracts”. It applies whenever workers are employed in a mechanism of outsourcingwhere “detachment between the ownership of the employment relationship and the utilization of the labor activity was established, which could justify applying the guarantee provided by Article 29” (see Court of Cassation, Labor Section, order no. 26881 of October 16, 2024). Based on this principle, joint liability has been deemed applicable, for example, in cases of “department delegation contracts” (“affidamento di reparto” in Italian parlance) or supply contracts.
Other related insights:
The Supreme Court, by its decision no. 24473 of 12 October 2024, ruled that individual abstentions
from work could not be qualified as a strike. The decision came after the rejection of the appeal
filed by some employees against a disciplinary sanction imposed by a highway company following
two days of unjustified absence. The Court of Appeal had upheld the lawfulness of the sanction on
the grounds that the workers’ absence had not been supported by a trade union declaration, which
is a necessary condition for the abstention to be classified as a strike. In particular, the Court of
First Instance had pointed out that in the absence of a formal notification from a trade union
announcing the starting time of the strike and in the absence of collective deliberation, the
workers’ behaviour had to be considered as an individual decision.
The workers challenged the decision, arguing that the right to strike could be exercised without a
trade union declaration. However, the Supreme Court stated that although the right to strike is an
individual right, it is essential that it is collectively agreed in the event of a conflict situation
involving the protection of a collective interest. Consequently, the Supreme Court rejected the
appeal and declared the sanction lawlful.
With Order No. 27610 of October 24, 2024, the Italian Supreme Court ruled that a dismissal for cause was lawful in the case of an employee accused of repeatedly abusing work breaks by spending excessive time at a bar with colleagues.
The legal proceedings originated from the dismissal of an employee for cause following repeated unexcused absences. An investigative agency documented three instances where the employee spent over 30 minutes engaging in conversations with colleagues near a bar during work breaks.
Initially, the Court of First Instance acknowledged the facts but deemed the dismissal disproportionate, awarding compensatory damages instead. However, the Court of Appeal in Catanzaro reversed this decision, affirming the dismissal’s legitimacy. The appellate court highlighted that the employee’s extended absences were not mere physiological necessities but constituted improper use of work time.
The court also emphasized the heightened severity of these breaches due to the employee’s senior role, which involved significant responsibilities and coordination of workers in a critical sector—waste collection. These actions, the court noted, could undermine public perception and trust in the service. Furthermore, it ruled that the behavior had potential criminal implications or could deceive the employer, harming both the company’s assets and its external reputation.
The Supreme Court upheld the employer’s right to protect its reputation, particularly in public-facing sectors like waste management, where public trust directly affects service effectiveness. It reaffirmed the importance of the company’s image as a key asset.
The court also clarified the limits of using private investigators, prohibiting indiscriminate monitoring of job performance. However, it acknowledged the employer’s right to engage investigators when there is suspicion or evidence of unlawful activities by an employee.
Finally, the court broadened the concept of “company assets” to include not only tangible assets but also the company’s external image.
Read the full article on Norme e Tributi Plus Lavoro del Il Sole 24 Ore.
