The Court of Cassation, with the sentence no.\n4879 of 24 February 2020 confirmed that the reinstatement protection provided\nby article 18, paragraph 4 of Law 300\/1970 in case of \u201cinexistence of the\nclaimed fact\u201d is also applicable in the case of inexistence of the claim or if\nthe same contains facts different than those used as the basis for dismissal.<\/p>\n\n\n\n
Facts of the case<\/strong><\/strong><\/p>\n\n\n\n The court events resulting in the ruling of\nthe Supreme Court witnessed the progression of two decisions aligned by the\nterritorial trial judges.<\/p>\n\n\n\n The Court of Appeals, confirming the ruling\nof the judge of first instance, considered that:<\/p>\n\n\n\n Lastly, based on these findings the fairness\nof the applied reinstatement protection was confirmed, without finding the\ndifferent issue of the proportionality between the dismissal and fact of modest\nunlawfulness.<\/p>\n\n\n\n Against the second instance decision, the\nemployer filed an appeal in Cassation Court, deducing that procedural mistakes,\neven serious, can give rise only to a reduced indemnity benefit, while the\nother benefits may apply when there is a substantial lack of justification for\nthe dismissal. <\/p>\n\n\n\n The decision of the Court of Cassation<\/strong><\/p>\n\n\n\n The Court of Cassation observed that in\nthe presence of a formally vitiated dismissal<\/strong>, and thus ineffective, due\nto violation of the motivation obligation<\/strong>, application of a reduced\nindemnity <\/strong>(still replacing the job) penalty<\/strong> is admissible, as long\nas variable from a minimum of 6 to maximum of 12 monthly salaries, taking into\naccount the seriousness of the committed formal violation (article 18,\nparagraph 6 of the Workers\u2019 Statute).<\/p>\n\n\n\n In any case, according to the Court of Cassation,\nwithout prejudice to application of different protections included in article\n18, paragraphs 4, 5 or 7 – replacing the reduced indemnity benefit and not in\naddition to it – if, based on the worker\u2019s claim, the unjustness of the\ndismissal emerges. Unjustness of the dismissal means the inexistence of a\nsubjective or objective just cause or a just cause where the burden of proof,\nonce the worker has explained his claim, remains the responsibility of the\nemployer as per article 5 of Law 604\/1966.<\/p>\n\n\n\n The Court of Cassation – faced with the\ndebated issue of identifying an applicable protection regime in the event of\ninitial omission of claim of certain behaviors – thus established that \u201cwhere the dismissal<\/strong> is notified\nwithout disciplinary action<\/strong>, the same continues, as in the past, to be\nconsidered unjustified<\/strong> and is punished with reinstatement and limited\ncompensation effects\u201d.<\/em><\/p>\n\n\n\n Justification of the reintegration benefit,\nagain according to the Court, is found in the fact that, according to article\n18, paragraph 4 of the Workers\u2019 Statute, such protection is provided in case of\n\u201cinexistence of the claimed fact<\/strong>\u201d, which implicitly cannot also include\nthe supposition of inexistence of the claim<\/strong>.<\/p>\n\n\n\n Based on all of the mentioned motivations,\nthe appeal of the employer company was rejected, since it was considered\ncompletely groundless.<\/p>\n","protected":false},"excerpt":{"rendered":" The Court of Cassation, with the sentence no. 4879 of 24 February 2020 confirmed that the reinstatement protection provided by article 18, paragraph 4 of Law 300\/1970 in case of \u201cinexistence of the claimed fact\u201d is also applicable in the case of inexistence of the claim or if the same contains facts different than those […]<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[167,177,190],"tags":[1113,1114,957],"class_list":{"0":"post-24289","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"hentry","6":"category-case-law","7":"category-insights","9":"tag-contestazione-disciplinare-en","10":"tag-insussistenza-del-fatto-contestato-en","11":"tag-licenziamento-per-giusta-causa-en"},"acf":[],"yoast_head":"\n