The bankruptcy courts have jurisdiction not only for disputes arising from a declaration of insolvency, but also for disputes which may have a bearing on the insolvency proceedings as they relate to the establishment of a claim against the bankrupt person.
Court of Cassation, Labour Section, Judgment no. 14975 of 14 July 2020
The Court of Cassation revisits the topic of the distinction between the sphere of knowledge of the employment judge and that of the bankruptcy judge.
In the case in question, the Court of first instance acknowledged the subordinate nature of the relationship between the plaintiff and the defendant, with a ruling partially reformed by the Court of Appeal that recognized additional amounts due by way of end-of-service payments (TFR).
The defendant company appealed to the Court of Cassation against the decision of the Court of Appeal, claiming that it lacked operational jurisdiction since, after the first instance ruling, the bankruptcy court had declared the company insolvent.
The Ruling, affirming the consolidated orientation of the Supreme Court, cites the mandatory operational jurisdiction of the bankruptcy court, provided for by article 24 of the Bankruptcy Law and article 13 of Legislative Decree no. 270 of 1999, in the extraordinary administration, which operates with reference not only to disputes that originate and are based on the declaration of the state of insolvency “but also with reference to those destined to affect the bankruptcy proceedings in that the assessment of the claim against the bankrupt is a prerequisite for a claim against the mass of creditors and, therefore, such that it must necessarily be settled within the bankruptcy proceedings, in order to ensure their unity and guarantee the “par condicio creditorum” (cf. Court of Cassation 18/06/2018, No 15982; Court of Cassation 20/07/ 2004, No 13496; Court of Cassation 21/12/2001, No 16183)”.
With specific reference to employment disputes, the Judges point out that “the distinction between the spheres of knowledge of the employment judge and the bankruptcy judge has been identified in their respective special prerogatives: the former as judge of the relationship and the latter as judge of the insolvency (Court of Cassation 30/03/2018, no. 7990; Court of Cassation 16/10/ 2017, no. 24363)”.
Accordingly, with regard to employment relationships, a distinction must be made between actions taken by the employee in order to satisfy an economic claim, and actions aimed at obtaining a ruling of mere verification or constitution: “In the first case, in fact, the purpose is verification of a monetary debt against the bankrupt’s assets, whereas in the second case the employee’s interest is in protecting his position within the company, both in relation to a possible resumption of the business, and for the coexistence of non-financial and social security rights, unrelated to the realization of the par condicio (Cass. 16/10/2017 no. 24363, in the grounds; Cassation 3/2/2017 no. 2975, Cassation 29/9/2016 no. 19308, Cassation 29/3/2011 no. 7129)”.
By virtue of the above, the Judges remind us that “Article 96(2) and (3) of the Bankruptcy Law provides for the admission of proof of a credit, subject to the claims established by an interim judgment issued before the declaration of bankruptcy (or insolvency) and establishes the possibility for the liquidator to bring or continue the appeal proceedings”.
Thus, in order to enforce the judgement in first instance, after the declaration of insolvency the employee would have had to file a claim ‘with the resulting possibility for the liquidator, if he does not admit the claim in question, to lodge or continue the possible appeal’.
As the employee did not file a claim against the bankruptcy estate, for the amount of the court claim in first instance, the Supreme Court ruled that all applications for a sum of money were not admissible: “The claims in question, which concern an order for the payment of sums by way of differences in wages and severance indemnities, do not, in fact, involve any description relating to the status of the worker, and their acceptance is intended to have a direct impact on the restructuring of the assets ascertained in the context of the bankruptcy proceedings; they are not admissible; the judgment under appeal, which is partly incorrect here, must be set aside and, since no further factual assessment is necessary, decided on the merits with a ruling of inadmissibility”.