The deadline to challenge the dismissal in Court starts running from the date the out-of-court challenge is sent by the employee, not the date it is received by the employer
Court of Cassation, Employment section, judgment no. 17197 of August 17, 2020
With judgment no. 17197 of August 17, 2020, the Supreme Court of Cassation confirms its orientation on the dies a quo of the deadline to challenge the dismissal in Court.
According to the Supreme Court, the terms under Article. 6, paragraph 2, Law No. 604/1966 «starts running from the transmission of the written notice of appeal against dismissal imposed by the first paragraph of the article and not from the completion of the appeal itself as a result of its receipt by the employer nor from the expiry of the period of sixty days».
Case Law, starting from the ratio of the law change made by Article 32 (1), Law No. 183/2010 to Article 6 (1-2) of Law No. 604/1966 («inspired by the need to ensure the speed of the proceedings») state that «the appeal against dismissal is a case of progressive formation, subject to two different deadlines, with respect to which the moment of completion of the act is not relevant, because the law does not provide for the loss of effectiveness of an appeal already completed, therefore received by the recipient, but imposes a double deadline for the appeal itself to be effective».
The above is reflected in the wording of the law because the phrase «The appeal is ineffective if» according to the Supreme Court is to indicate that «regardless of its completion (and therefore the timing in which the employer receives it), the employee must take action, within the specified period, to promote the judgment».
The legislator wanted, thus, to subordinate the effectiveness of the appeal «to the respect of a double deadline, entirely remitted to the control of the employee, who, after having absolved the first task, is subject to the further one to activate the judicial phase within the fixed term».
This conclusion is also consistent with the accelerating purpose of the rationale inspiring the reform intervention. Nor is it possible, continues the judgment in question, to identify «a vulnus to the employee’s right of defense, because the employee knows immediately what is the dies a quo of the deadline for filing the judicial appeal because it depends on the date he/she sent the out-of-court challenge, and is therefore not exposed to the uncertainty related to the need for subsequent verification through the proof of the date of receipt of the act».
This reconstruction, continues the Supreme Court, is not affected by the employer arguments related to the receptive nature of the out-of-court challenge of dismissal nor by the principle stated by Cass. S.U. n. 8830 of 2010, on the timeliness of the out-of-court appeal of dismissal made by registered letter sent within sixty days regardless of the date of receipt at a later time.
Indeed, according to the Court, these arguments confirm the above. If, in fact, the appeal against dismissal «is effective for the worker from the sending date, it is systematically consistent with this dogmatic reconstruction a regulatory discipline that from the shipment, not from receipt, the second deadline imposed on pain of forfeiture (Cass. No. 7659 of 2019)».