ITA 
Court of Cassation, no. 8040/2022
To quantify the amounts due following the unlawful dismissal, the "global remuneration" shall be calculated considering what the employee would have received if she/he had worked, with the exception, however, of possible remuneration, as well as indemnities linked to particular kind of performance.
In the case in exam, the Court of Appeal, on the basis of this principle, excluded the foreign service allowance (known as ISE) from the calculation.
This conclusion was confirmed by the Court of Cassation in its Order no. 8040 of 11 March 2022.
In particular, "given the damages nature of the indemnity paid as a result of the ascertained illegality of the dismissal, as regards its calculation”,the Court of Cassation held “in accordance with the constant orientation of the supreme court, that the concept of “actual total remuneration” can only refer to that which the employee would have received if he had worked, excluding any compensation, the receipt of which is not certain, and those linked to particular ways of carrying out the service and having an occasional or exceptional nature”.”.
The concept of actual total remuneration, continues the Supreme Court, “refers synallagmatically to the remuneration that the employee receives as a result of the “normal” performance of a service, without therefore being able to value further indemnities connected not to the work performed, but to other parameters (for example, reimbursement for costs of transfer, location, etc.), emoluments aimed at compensating not the increased burden/difficulty of the task, but other inconveniences, such as - for example - those connected to the transfer, travel, renting a property in the new place of work, etc”.”.
To conclude, “the concept of actual total remuneration includes only those items of remuneration and not all of them, since, as stated above, those of an occasional or exceptional nature must be excluded”.”.
Thus, in relation to the foreign service allowance, “excluding its consideration and remunerative nature”, it must, on the basis of the above-mentioned principles, also “exclude its inclusion in the overall remuneration" .”.
In this regard, continues the Supreme Court,“reference should be made to the teaching of Court of Cassation no. 14112/2016 (to which continuity should be given), which denied the remunerative nature of the foreign service allowance insofar as it was intended to cover the costs arising from the stay in the foreign office” Cass. n. 14112/2016 .”.
It follows that, since the nature of the foreign service allowance is denied, its relevance for the purposes of calculating the compensation parameter relating to unlawful dismissal must be excluded. di servizio estero, ne va esclusa la rilevanza al fine della commisurazione del parametro risarcitorio relativo al licenziamento illegittimo.