With decision no. 27934 dated October 13, 2021, the Supreme Court stated that, in the event that the employer waives the notice period that the employee (who resigned with immediate effect) must observe, the same employer is not required to grant the related indemnity to the employee, given that no legally qualified interest can be set up in favor of the withdrawing party.
The dispute concerned a summary order of payment obtained by a resigning employee for the payment of the indemnity in lieu of the notice that the employer had denied.
As a result of the proceedings brought by the employer company to challenge the summary order of payment, both the Court in first instance and the Court of Appeal in second instance confirmed the summary order of payment and therefore the right of the resigning employee to the indemnity in lieu of notice. All on the assumption that the waiver of the notice period by the company does not exempt it from the payment of the related indemnity.
The Supreme Court - in overturning the decision of the Court of Appeal - preliminarily noted that, in the event of an employee's resignation, the notice is intended to ensure the employer the time necessary to replace the employee.
According to the Supreme Court, since the notice has mandatory effect, the withdrawing party is free to choose between the continuation of the relationship during the notice period and the payment to the counterparty of the indemnity in lieu thereof (with immediate resolutive effect).
On the basis of the aforesaid principle, the non-withdrawing party has therefore a credit right that can be freely waived.
It follows that the non-withdrawing party who has waived the notice period, owes nothing to the counterparty, which cannot claim any right to continue the employment relationship until the end of the notice itself.
A different outcome could arise where a specific provision of the applicable collective agreement, providing for a better treatment, is applied: this is the case of the national collective barraging agreement of the commercial which provides, in the event of employee resignation, the payment, by the employer, of the indemnity in lieu of notice even in case of exemption from the relevant notice.
Avv. Guido Brocchieri
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