ITA 
Published on Sole24Ore – NT Lavoro – on 17/05/2023
The company that inflicts an illegitimate dismissal based on the erroneous judgement of the employee’s physical unfitness to work, formulated by a public health authority on the basis of Article 5 (3), of Law 300/1970, is deserving of compensation limitation. Thus, the Court of Cassation, in its judgment no. 11248/2023 of 28 April.
The case originates from a dismissal of an employee for objective just reason, given her supervening physical unfitness to work, ascertained due to Article 5 Law no. 300/1970 by the general medicine department of the competent local health authority, pronounced both at first instance and following the employee's appeal.
Both the Tribunal and the Court of Appeal declared the unlawfulness of the dismissal and condemned the Company to the damage compensation equal to the salary accrued from dismissal to the day of the effective reinstatement, due to Article 18 L. 300/1970, ratione temporis applicable. This appened becaucause the competent local health authority’s provision, which was the basis of the dismissal, resulted unjustified, both in the first and second trial grade, following an expert opinion ordered by the Judge.
The Supreme Court, upholding the company’s appeal, which challenged the application of Article 18 only from the point of view of the determination of the compensatory effects resulting from the illegitimacy of the dismissal, set aside the judgment to the Court of Appeal with reference to a different composition. The Court of Appeal overturned the judgment and reduced the compensation to five months’ salary, noting that the conditions for the limitation of the compensation existed, as the company had provided evidence that the non attributable to it, because the dismissal was announced on the basis of the judgment of the worker’s physical unfitness to work formulated by a public health authority.
The employee challenged the judgment in Cassation claiming the violation of the Article 18 L. 300/1970 by the Court of Appeal for considering that the employer’s breach of contract was not attributable to him by virtue of the judgment of the Asl. The Supreme Court rejected the appeal, noting that the dismissal was inflicted on the basis of a judgment issued directly by an Authority, not by a doctor, pronounced both In first instance and following the her appeal. Consequently, the company could not disregard the authority and the position of third party of the public structure and could certainly not have disregarded the assessments and thus assigned the employee to the task to which (according to the public health authority) she was unsuitable if it did not evidently lend itself to the serious risk of liability for damage to health. Moreover, the Court of Cassation considers it relevant to point out that the territorial court had correctly referred to certain precedents of legitimacy considered expressive of a limitation of the employer’s liability for damages to five months’ salary in similar hypotheses.