ITA 
Court of Cassation, employment sec., 7 February 2022, no. 3824 e 3825
With judgments no. 3824 and no. 3825 of 7 February 2022, the Supreme Court confirms its previous judgments rejecting the appeals of Air Italy against the reinstatement of the employees dismissed by Meridiana Fly.
According to the Supreme Court, the Court of Appeal correctly considered that the elements of connection between Meridiana Fly S.p.A. (which later became Air Italy S.p.a.) and Air Italy S.p.a. (which later became Air Italy Flee Management Company S.p.a.) had gone beyond, in terms of characteristics and purposes, the connotations of a mere synergy between subsidiaries to cross over into an interpenetration of means and activities, symptomatic of the substantial subjective unity.
The interpenetration between the company structures formally belonging to different companies, implies that the work shall be referred to a unique unified entity.
And so “"the consequence is the the collective dismissal procedure activated by Meridiana Fly had to involve not only its employees but also the Air Italy employees, meaning all the workers of the single company complex resulting from the integration of the two companies, since the assumptions for the delimitation of the group of workers to be dismissed to the sole staff of Meridiana Fly were not properly deduced and proven".”.
The ascertainment of the substantial unity of the entrepreneurial structure also excludes, continues the Supreme Court, that the verification of the concrete, effective use by both companies of the services rendered by the individual employee, whose activity must in any event be considered to have been performed in the - undifferentiated - interest of the two companies, which are only formally distinct, can take on decisive importance.
The Court of Cassation also ruled on the criteria for determining the indemnity pursuant to Article 18, paragraph 4, Law No. 300 of 1970.
On this point,the Supreme Court notes, first of all, as it is "the burden of the employer who disputes the claim for compensation of the employee unlawfully dismissed, to prove, even with the help of simple presumptions, the aliunde perceptum or percipiendum, the difficulty of this type of evidence or the lack of cooperation of the employee ousted from the company being irrelevant, since the employee does not have the burden of proving a circumstance, such as the new employment following the dismissal, which reduces the damage suffered", a nulla rilevando la difficoltà di tale tipo di prova o la mancata collaborazione del dipendente estromesso dall’azienda, dovendosi escludere che il lavoratore abbia l’onere di farsi carico di provare una circostanza, quale la nuova assunzione a seguito del licenziamento, riduttiva del danno patito .)”.
With regard to the determination of the indemnity, according to the Court of Cassation"the Court of Cassation complied with the provisions of the legislation which precisely describes the sequence for determining the indemnity, through the calculation of the total remuneration due to the employee for the entire period of exclusion, and the subsequent deduction, from the amount thus obtained, of the aliunde perceptum and percipiendum; on the other hand, the ceiling laid down for the compensation, amounting to 12 months' salary of the last overall remuneration, represents a limit which the legislature placed on the quantum of compensation payable by the employer in relation to the amount resulting from the difference between the remuneration due for the entire period of removal and the aliunde perceptum or percipiendi, where that ceiling is exceeded”.
The Supreme Court remarks that"the compensatio lucri cum damno, to which the principle of deduction of aliunde perceptum or percipiendi is to be attributed, is applicable only if - and within the limits in which - both the damage (damnum) and the increase in assets or, in any case, the advantage (lucrum) are the immediate and direct consequence of the same fact, which in itself is capable of producing both effects. For example, it has been affirmed that the remuneration received by the employee, for subordinate work or self-employment in the period of exclusion, leads to a corresponding reduction in the compensation for unlawful dismissal only if - and to the extent that - that work, being incompatible with the continuation of the contextual work suspended following the dismissal, supposes, in fact, the notice of dismissal itself".”.