Dismissal of executive (dirigente) and deadline to appeal under Law no. 183/2010, par. 32
Case ref: Cassazione Civile, sez. lav., 8 gennaio 2020, n. 148
Through the recent court ruling no. 148 dated January 8th, 2020, the Supreme Court of Cassation once again is called to rule on an issue that has already been widely debated in the past, such as the applicability of the deadline for appealing the dismissal provided by Law no. 183/2010, par. 32 “to the dismissal of the executive when it is not disputed the validity of the act, instead the dismissal is claimed as being merely unjustified“.
On this point, the above-mentioned Court ruling states that the application of the rules provided by Law no. 183/2010, par. 32 beyond the cases of invalidity of the dismissal would represent “an inadmissible analogical application of an exceptional rule, which, as providing a legal procedure deadline, must be construed within the strict regulatory framework“.
In other words, in view of the principle of strict interpretation of the rules on legal procedure deadline, it is not possible to extend the ‘objective’ scope of such a rule to include every ‘pathology’ of the dismissal, even in view of the special nature of the laws relating to the appeal against dismissals compared with the principles of ordinary law.
Thus, the Supreme Court concludes remarking that the concept of invalidity cannot include the hypothesis of contractual ‘non-justification’ providing the supplementary indemnity as the only sanction. Indeed, according to the Supreme Court, the supplementary indemnity “is linked to a dismissal which is unquestionably valid and effective, as terminates the employment relationship“.
Therefore, through the above-mentioned Court ruling the Supreme Court states the inapplicability of the deadline to appeal the dismissal provided for by Law no. 183/2010, par. 32, when the executive only claims the non-justification of the dismissal within the terms of the National Collective Labour Agreement and claims the payment of the supplementary indemnity.