The Court of Mantua, in its ruling no. 112, filed on 11 November 2020, declared the absolute nullity of dismissal for justified objective reason with consequent applicability of reinstatement in the job that was notified in violation of the express ban introduced by the law decrees enacted to face the pandemic emergency from Covid-19.
A worker, a trainee of a company operating in the clothing and costume jewellery retail sector, was first put on wage guarantees due to the Covid-19 healthcare emergency. Following use of the wage guarantees, she was put on holiday and then dismissed for justified objective reason.
Objecting to the dismissal the worker appealed to the court preliminarily citing the relative invalidity for violation of the emergency legislation and secondly for lack of justified objective reason as well as violation of the repechage obligation finding that she could have been transferred to other job sites.
The assigned Court in granting the worker’s appeal explained that the generalised ban on individual dismissal for justified objective reason represents a temporary protection of the stability of employment to safeguard the market and the economic system and is a job market policy and economic policy measure connected to public order requirements.
This ban on dismissals was originally introduced by art. 46 of the “Cure Italy” Decree (Decree Law no. 18/2020) until the date of 17 May 2020, to then be later extended by later emergency provisions.
The legislative provisions in question, the Court confirmed, have an imperative and public order nature with the consequence that dismissals adopted in contrast with them, are invalid with a consequent application of reinstatement as per art. 18, 1st paragraph, Law 300/1970 and as per art. 2, Italian Legislative Decree 23/2015 (with the “expressly” invalidity from art. 1418 of the Italian Civil Code).
The Court then added that the dismissal regulations for open-ended contracts also apply to the trainee contract given the comparable nature of trainee and ordinary employee. The Court also reiterated that the employer has the burden of proving the just cause or justified reason of the dismissal and, in the case in hand, nothing was demonstrated as the company did not appear.
In light of the above, the Court decided to apply to the dismissed employee the protection of reinstatement in the previously held job, sentencing the company to pay the remuneration used as reference to calculate TFR (post-employment benefits) from the date of dismissal until reinstatement on the job, without prejudice to the worker’s right to request compensation in lieu of reinstatement. Moreover, the company was sentenced to pay welfare and social security contributions for the same period.
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The ruling under review shows that violation of the temporary ban on dismissals entails the absolute nullity of the same, for violation of an imperative law with consequent applicability of the “full” real protection contained in art. 18, paragraph 1, of Law 300/1970 and art. 2 of Legislative Decree no. 23/2015 depending on whether the employees were hired before or after 7 March 2015 (date Legislative Decree 23/2015 became effective).
Altri insights correlati:
The Court of Justice of the European Union (CJEU), with its ruling of 17 March 2021 (case C-652/2019), decided on prejudicial issues raised by the Court of Milan on 5 August 2019 on the legitimacy of the collective dismissal provisions contained in the Jobs Act.
The case regards an employee hired with a fixed term contract before the Jobs Acts became effective, changed to open-ended at the end of March 2015 and then dismissed in 2017 in a collective dismissal procedure.
The employees involved in the procedure in question, including the employee, petitioned the Court of Milan which declared the challenged dismissals as unlawful, due to violation of the selection criteria. The Court granted the worker – unlike her colleagues who had been reinstated because hired with open-ended contract before the enactment of Legislative Decree no. 23/20215 (so-called Jobs Act), i.e. before 7 March 2015 – only the indemnity protection.
The Court, noting the existence of two different disciplinary systems in the event of unlawful collective dismissal resulting from the introduction the seniority-based protection contract, asked the Court of Strasbourg if a similar treatment difference was against European Union Law.
The Court of Justice recognised the conformity of Legislative Decree no. 23/2015 with European Union law, clarifying that a regime that has only one indemnity (and not also reinstatement) is not discriminatory for the worker hired with fixed-term contract before 7 March 2015 and becoming permanent afterwards. This is because the different treatment is justified by the fact that the workers involved in the seniority-based protection obtain, in exchange for a regime with less protection, a form of employment stability.
According to the Court of Strasbourg it is a type of incentive aimed at fostering the conversion of fixed-term contracts into open contracts which constitutes a legitimate objective of social and employment policy, the selection of which is fully within the discretion granted to Member States.
According to the Court of Strasbourg this consideration is in line with a decision made by the Court in 2018, which, involving basically the same issue, had considered it legitimate that the remedial legislation could be differentiated based on the hiring date.
Other related insights:
The Court of Trento, in a ruling dated 21 January 2021, stated that an employee who is absent from work due to a fiduciary isolation ordered due to their (avoidable) choice to spend holidays abroad constituted just cause for dismissal. The Court’s ruling stems from an appeal brought by an employee who had been dismissed because, following repeated absences for various reasons (holidays, leave under the 104 law, child illness, etc.) and recently returned from a holiday period in Albania, had been absent from work for 14 days to observe the quarantine required by law. This absence had caused “serious organisational problems (…), thus causing serious harm to the company.” The employee contested the dismissal, claiming that it was null and void since it was based on unlawful retaliatory reasons and it lacked just cause, since the act was justified by compliance with legal obligations.
Continue reading the full version published in Norme & Tributi Plus Diritto of Il Sole 24 Ore.
Art. 6 of Italian Law no. 604/1966 states that:
That said, Article 83, paragraph 2 of the Cura Italia Decree, and Article 36, paragraph 1 of the Liquidity Decree, laid down, among the measures to combat the health emergency due to the spread of the COVID-19 virus, the “extraordinary” suspension of procedural terms from 9 March 2020 until the following 11 May.
In relation to appealing a dismissal, the Court of Milan, with measure dated 14 October 2020 no. 5145, stated that the suspension of the terms in question does not apply only to the term of 180 days relating to the judicial appeal of the dismissal but also to the forfeiture period of 60 days relating to its extrajudicial appeal.
In the Court’s opinion, a restrictive interpretation would contrast with the unitary nature of the two terms of appeal and with the “rationale of the urgent decree to limit the negative consequences of the pandemic also for the jurisdictional protection of rights”.
From another profile, the Courts of Rome and Palermo recently focused on the appeal of the dismissal, sent by certified email as an annex – scan of the original – and thus an image copy not containing the authentic signature of the interested party.
The Court of Rome, with its ruling dated 20 October 2020, no. 86577, declared that the dismissal may be appealed, indifferently, both (i) by attaching to the certified email an electronic document (known as “digital native document”) and (ii) by sending the scan of the paper document signed by the lawyer and by the interested party, even if not having any digital signature.
The Court of Palermo took a different stance, with its ruling dated 28 October 2020, no. 30615, declaring ineffective the appeal of the dismissal sent by the employee’s lawyer to the employer, by certified email, if it is not accompanied by the digital signature or by a certification of conformity of the documents.
It is hoped that the case law contrast that has now come to light on the issue will soon be resolved by a decision of the Supreme Court or by a regulatory change.
Establishing, in fact, whether or not the appeal as an image copy is effective is crucial in deciding if the document thus produced has the value of a document interrupting the limitation period indicated in Art. 6 of Italian Law no. 604/1966.
Other insights related:
The articles written by Vittorio De Luca and Antonella Iacobellis lingers over two aspects regarding to the out-of-court appeal.
Source: Guida al lavoro – Il Sole 24 ore.
