Nullity of individual dismissal
The Supreme Court found that the individual dismissal imposed for the same reasons as the basis of a collective dismissal is null and void. In this regard, the Supreme Court clarified that the dismissal for justified objective reason that is based on the same reasons already placed at the basis of a previous collective dismissal implements a fraudulent scheme pursuant to Article 1344 of the Italian Civil Code according to which "the contract is unlawful when it constitutes the means to avoid the application of an imperative rule" (Supreme Court’s decision No. 7400 dated March 7, 2022).
With regard to the disciplinary dismissal, the violation of the employer's obligation to hear the employee in advance in defense, as a prerequisite for the dismissal, if any, constitutes a violation of the disciplinary procedure set forth by Article 7 of the Workers' Statute which entitles the employee to the compensation protection provided for by Article 18, sixth paragraph, of the mentioned Statute (Supreme Court’s decision No. 7392 dated March 7, 2022).
Transfer of business as a going concern
If the validity of an employment relationship is actually necessary for the purposes of the applicability of Article 2112 of the Italian Civil Code (according to which in the event of a transfer of business as a going concern, the employees of the transferred transferor become employees of the transferee), however it cannot be neglected to consider that in the light of art. 2112, fourth paragraph, of the Italian Civil Code, the transfer of a company cannot be the only justification for the dismissal (Supreme Court’s decision No. 7391 dated March 7, 2022).
Protection of working conditions
Article 2087 of the Italian Civil Code, which governs the protection of working conditions, does not constitute a hypothesis of objective liability, as the liability of the employer – being of a contractual nature - must be linked to the violation of the obligations of conduct imposed by the law or suggested by experimental knowledges or techniques of the moment. Accordingly, it bears on the employee who complains of having suffered damage to health due to the work performed, the burden of proving, in addition to the existence of such damage, the harmfulness of the work environment, as well as the link between one and the other, and only if the employee has provided such proof, the employer has the burden of proving that it took all the precautions necessary to prevent the occurrence of the damage (Supreme Court’s decision No. 7058 dated March 3, 2022).
Avv. Guido Brocchieri
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