ITA 
Published on Sole24Ore – NT Lavoro – on 23/09/2022
The «attenuated» reintegration protection pursuant to Article 18 (4) applies in the event of dismissal in violation of Article 2110 (2) of the Civil Code regardless of the number of employees of the employer.
Thus, the Court of Cassation, with its judgment no. 27334 of 16 September 2022.
The case originates from the dismissal for exceeding the protected period, ordered by a company with fewer than 15 employees to an employee who was absent following an accident in the course of her tasks.
According to the Court of First Instance, the period of illness should not have been included in the calculation of the protected period given the employer’s responsibility in causing the accident, therefore, the dismissal was null and void, as it was ordered in violation of Article 2110 (2) of the Civil Code.
Whit regard to the consequences, the Court of First Instance held that the so-called «attenuated» reintegration protection was applicable by virtue of the combined provisions of Article 18 (4) and (7) of the L. 300/1970 arguing that it was intended to regulate the regime of nullity for breach of Article 2110 (2) of the Civil Code, as an exeption to the rules provided for by the 1st and the 2nd paragraph of Article 18 and regardless of the employer’s size requirement.
The Court of Appeal, agreeing with the findings of fact made by the Court, came to different conclusions as to the applicable penalties.
According to the Court of Appeal, in fact, the interpretation provided by the Court of Firs Instance was in clear contrast with Article 18 (8) of Law 300/1970, which expressly limits the application of the attenuated reintegration protection to employer with more than fifteen employees.
Under a different profile and recalling the Court of Cassation’s judgment no. 17589/2016, the Court did not consider the common law nullity regime applicable to the case at hand and the consequent application of Article 18 (1). That conclusion, in fact, would have entailed the unreasonable consequence that, in the face of dismissal announced before the end of the working period, employees of employers with more that fifteen employees would be entitled to «attenuated» reinstatement protection while employees of smaller employers would be entitled to full reinstatement protection.
Consequently, the Court of Appeal brought the case at hand back to the provision of Article 8, Law. 604/1966, condemning the company to the payment of six monthly salaries. Hearing the issue, the Court of Cassation recalled that dismissal announced before the end of the protected period is «null and void for breach of the mandatory rule due to Article 2110 (2) of the Italia Civil Code», referring in this regard to the rulling of the Unified Section’s judgment no. 12568/2018 which had already resolved the contrast that had emerged within the jurisprudence of legitimacy on the case in question, between the thesis of the nullity of the dismissal or its temporary ineffectiveness.
According to the Unified Section, such dismissal although falling within the «other cases of nullity provided for by law» due to paragraph 1 of Article 18, is included in paragraph 7 only quoad poenam, i.e. for the purpose of applying the less stringent remedy such as the attenuated reinstatement protection. Recalling that Article 8, L. 604/1966 governs only the consequences of dismissal that is unlawful because it is announced in the absence of a just cause or justified reason, the Court of Appeal affirmed the error in law of the thesis accepted by the Court of Appeal. Having ruled out the applicability of Article 8, Law 604/1966, the Court of Cassation ruled that Article 18 (1) could not be applied either, for the same reasons put forward by the Court of Appeal, pointing out that otherwise, by guaranteeing greater protection to employees of small companies compared to workers under regime of real protection, there would be a «clear unreasonableness in the system and a disharmony in the system of protection in the event of dismissal».
According to the Supreme Court, therefore, the dismissal in violation of Article 2110 of the Civil Code remains subject to the general discipline of the invalid dismissal, given «the irrelevance, with respect to the case in question, of the selective criterion based on the number of employees which, if it can justify different levels of protection in the event of dismissal voidable can not legitimise a diversification of the consequences of dismissal void». According to the Court, this interpretation is the only one compatible with the need to ensure reasonableness to the system of protections in the case of dismissal, already referred to by Constitutional Court in the rulings adopted on issues relating to Law. no. 92/2012 and Legislative Decree no. 23/2015.
The Court concludes by affirming the following principle of law: «in the system outlined by Article 18 of Law no. 300/1970, as emended by Law. no. 92/2012, dismissal announced in breach of Article 2110 (2), of the Civil Code, is null and void and its consequences are governed, according to a special penalty regime, by paragraph 7, which in turn refers to paragraph 4, of the same Article 18,whatever the number of employees employed by the employer».