The Supreme Court recently examined the issue concerning the calculation of the limit of five dismissals over 120 days related to collective dismissals.
By judgement dated May 31, 2021, n. 15118, the Supreme Court stated that to evaluate whether or not to activate the collective dismissal procedure, it must not take into account the "intention to proceed with dismissal for objective reasons" set forth by Article 7 of Law no. 604 of 15 July 1966 governing individual dismissals ("Law 604"), which is provided for in order to undertake the conciliation procedure before the labor office. This is because the intention mentioned by said Article 7 cannot be considered in itself a dismissal.
It is worth noting that pursuant to Article 7 of Law 604, the dismissal for justified objective reason, if provided by an employer employing more than fifteen employees, must be preceded by a communication made by the employer to the competent labor office and transmitted to the employee for his/her information. By means of such communication, the employer must declare the intention to proceed with the dismissal for objective reasons and indicate the reasons for the dismissal itself as well as any measures provided for the relocation of the concerned employee.
The dispute decided by the Supreme Court arises from a petition filed by an employee who challenged her dismissal allegedly based on objective reasons. In particular, the employee complained about the fact that immediately after her dismissal, the employer had activated, for the same reasons, numerous dismissal procedures pursuant to Article 7 of Law 604. Specifically, within 120 days, the dismissal letter or the communications to the labor office had been nine in all and, therefore, the employer should have to activate a collective dismissal procedure.
In the first instance proceedings the Court rejected the employee’s petition. Subsequently, however, in the appellate proceedings, the Court of Appeal, qualified the dismissal of the employee as a collective dismissal and ascertained the unlawful omission by the employer of the collective dismissal procedure (Article 24, paragraph 1 quinquies, of the law of 23 July 1991, n. 223 - “Law 223”). Accordingly, the Court of Appeal ordered the employer to pay the employee an indemnity equal to 18 monthly’s salaries.
In this regard, it should be noted that in accordance with the provisions of Article 24 of Law 223, the employer employing more than fifteen employees, who intends to proceed with at least five dismissals within one hundred and twenty days, must send a prior notice to the trade unions.
The Supreme Court specified that the expression "intends to dismiss at least five layoffs, within one hundred and twenty days" pursuant to Article 24 of Law 223, is a clear manifestation of the willingness to dismiss, although necessarily related to the fact that dismissals cannot be notified to the employee until the completion of the procedure provided for by Law 223.
In this regard, the Supreme Court pointed out that the expression "must declare the intention to proceed with the dismissal for objective reasons" set forth Article 7 of Law 604 is quite different. Indeed, such declaration is required in order to undertake the conciliation procedure before the labor office, and therefore is not per sè a dismissal.
Avv. Guido Brocchieri
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