ITA 
The subsequent dismissal of an employee who had been previously reinstated and then transferred to a business unit in which a reduction in staff had already been planned, was found to be null and void.
Court of Cassation, Employment Section, Judgment no. 29007 of December 17, 2020
In the case in question, the company had been ordered by the court to reinstate one of its employees, and did so, not at the location to which he was assigned prior to the dismissal, but at a different company location.
However, only 5 days after the transfer, the Company opened a collective redundancy procedure at the assigned location, which led to the employee’s dismissal anew.
The employee challenged this second dismissal and the Court in first instance declared it null and void; the decision was upheld on appeal.
In particular, according to the Court of Appeal, the act of terminating the employment relationship, was to be considered fraudulent as a way to circumvent the law the on the limitation of the employer’s right of withdrawal and to evade the order of reinstatement.
This is in view of the fact that “even before the transfer of the plaintiff was arranged” the company was fully aware of the “overstaffing of the business unit, which had been making a loss for years”.
The company appealed to the Supreme Court, pointing out the inapplicability of the concept of fraud against the law, to unilateral acts, which is provided for by the legislator only for contracts and not for unilateral acts such as dismissal, as well as the fact that the employee’s right to challenge the transfer had expired.
The Court of Cassation rejected the company’s appeal and upheld the decision of the Court of Appeal.
In particular, with regard to the first point, the Supreme Court confirms the correctness of the judgment of the court of first instance, where it applied the concept of fraud to a unilateral act such as dismissal.
On this point, the Supreme Court notes that “indefectible assumption so that you can talk about a contract in fraud to the law is that the store put in place does not achieve what is a typical cause – or otherwise worthy of protection under Article 1322 cc, paragraph 2, but an illegal cause as aimed at violating the law (see Cass. 6/4/2018 No 8499) “.
On the basis of this assumption, the Supreme Court concludes “for the compliance with the law of the approaches to which the lower court declared the nullity of the dismissal, integrating hypothesis of illegality of the cause of the contract aimed at circumventing the mandatory rules on the limitation of the employer’s right of withdrawal from the employment relationship, and, specifically, the order of reinstatement in the workplace and compliance with the provisions that mark the procedure for collective dismissal under Law No 223 of 1991”.
Thus the Court of Cassation rejected the appeal and upheld the judgment of the Court of Appeal also with regard to the irrelevance of the independent challenge of the transfer.
As stated in the judgment in question, in fact, the Court of Appeal “has appropriately framed the case under the heading of fraus legis, considering not vulnerable to the dictates of Law No. 183 of 2010, with reference to the ordered transfer, as inescapable legal step to achieve the declaration of illegality of the collective dismissal and instrumental to the acceptance of the claim”. And so, according to the judges, the court in first instance”has correctly noted that the worker had intended to achieve a ruling on the establishment of the illegality of the dismissal intimated, which was a two-way relationship.. The transfer integrated, in fact, an element of the complex case that defined the alleged fraud, which was the subject of investigation to reach a decision on the dismissal”.
From this perspective, concludes the Supreme Court, there was no need to challenge the single act of the complex fraudulent case, given the close logical-legal link between the two measures (transfer – collective dismissal) and the instrumental function assumed in the contractual dynamic, the transfer itself at a location that had already shown to be overstaffed.
Therefore, having timely challenged the final act of the employer’s unlawful conduct, this exempted the employee from the need to challenge the legitimacy of the measure issued by the company in the exercise of jus variandi.