ITA 
Published on Sole24Ore – NT Lavoro – on 29/08/2022.
The intention to dismiss can be communicated to the employee indirectly, since there is no burden on the employer to adopt sacramental formulas. Thus, the Court of cassation with its judgment no. 24391 of 5 August 2022.
In the case at hand, an employee of the province of Benevento was declared permanently unfit for service as an employee of the public administration on the basis of Article 55 of Legislative Decree 165/2001 and, as a result, the authority terminated his employment by executive decision. The measure, however, was not notified to the employee, who informally obtained a copy at the administration’s offices.
The Court declared the dismissal ineffective, classifying it as oral, by vitue of the lack of notification.
The Court of Appeal, instead, on the one hand held that the termination was unquestionably in writing given the relevant managerial decision, and, on the other hand, considered that the employee’s knowledge of the measure was proven even in the absence of the relevant notification, since he himself had declared that he had acquired a copy, albeit informally.
Since the requirements of written form and knowledge on the part of the addressee were thus fulfilled, the Court of Appeal declared the measure effective from the date of the acquisition of the copy by the employee.
The employee appealed in cassation claiming that dismissal is a unilateral recetive act with biding form, and the discovery of a copy without conformity and without a signature was not sufficient to rectify the failure to notify.
For the same reasons, the plaintiff claimed that the measure was null and void for lack of written form ad substantiam and that the oral dismissal notice served on him had never been finalised.
According to the Court of Cassation, all of the appellant’s contentions relate in substance to the effect of the employee’s aliunde knowledge of the termination measure and, therefore, to the interpretation of Article 2 of Law. 604/1966.
For the Court, the argument that the managerial decision of retirement should have been communicated to the employee in a certified copy and in the original, with the consequent irrelevance of its knowledge aliunde, cannot be accepted.
The Court of Cassation, recalling on this point its own orientation (Court of Cassation’s judgment no. 12499/2012), clarifies that on the subject of the form of dismissal, Article 2 of Law 604/1966 requiers, under penalty of ineffectiveness, the written form of dismissal, but does not prescribe specific methods of communicating.
Therefore «the intention to dismiss may also be communicated to the employee in an indirect form, as long as it is clear», there being no burden on the employer to use sacramental formula.
In a different respect, the Court points out that the alleged danger of having received a copy that does not conform to the original is purely abstract, since the challenge of the conformity of a document must be made in a clear and circumstantial manner, through the specific indication of the challenged document ad of the aspects in which it is alleged to differ from the original, the use of stylistic and generic clause being of no relevance.