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.<\/p>\n\n\n\n
Court of Cassation, Employment Section, Judgment no. 29007 of December 17, 2020<\/em><\/p>\n\n\n\n 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. Nullo, perch\u00e9 in frode alla legge, il licenziamento intimato al dipendente reintegrato e trasferito presso una sede aziendale per cui era gi\u00e0 stata programmata una procedura di riduzione di personale Corte di cassazione, sezione lavoro, sentenza n. 29007 del 17 dicembre 2020 Nel caso di specie la societ\u00e0 datrice di lavoro era stata condannata a […]<\/p>","protected":false},"author":1,"featured_media":1891,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[44],"tags":[],"yoast_head":"\n
\nHowever, only 5 days after the transfer, the Company opened a collective redundancy procedure at the assigned location, which led to the employee\u2019s dismissal anew.
\nThe employee challenged this second dismissal and the Court in first instance declared it null and void; the decision was upheld on appeal. \nIn 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\u2019s right of withdrawal and to evade the order of reinstatement.
\nThis is in view of the fact that \u201ceven before the transfer of the plaintiff was arranged\u201d the company was fully aware of the \u201coverstaffing of the business unit, which had been making a loss for years\u201d.
\nThe 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\u2019s right to challenge the transfer had expired.
\nThe Court of Cassation rejected the company\u2019s appeal and upheld the decision of the Court of Appeal.
\nIn 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.
\nOn this point, the Supreme Court notes that \u201cindefectible 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 \u2013 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) \u201c.
\nOn the basis of this assumption, the Supreme Court concludes \u201cfor 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\u2019s 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\u201d.
\nThus 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.
\nAs stated in the judgment in question, in fact, the Court of Appeal \u201chas 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\u201d. And so, according to the judges, the court in first instance\u201dhas 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\u201d.
\nFrom 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 \u2013 collective dismissal) and the instrumental function assumed in the contractual dynamic, the transfer itself at a location that had already shown to be overstaffed.
\nTherefore, having timely challenged the final act of the employer\u2019s 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.<\/p>","protected":false},"excerpt":{"rendered":"