Court of cassation, order n. 29365, 21 October 2021
The achievement of the pension requirements allows the termination ad nutum of the employment relationship and not its automatic termination.
The case originates from the court claim filed by an employee dismissed as part of a collective dismissal procedure whose request to challenge the dismissal, rejected by the Court, was upheld by the Court of Appeal, which declared the dismissal unlawful, ordering the reinstatement and compensation for damages, based on the total salary due from the dismissal date until the actual reinstatement.
However, the employee received as damages an amount equal to the overall salary calculated from the date of dismissal until the age of 65, which had occurred in the meantime. Consequently, she took legal action to obtain a sentence ordering the employer to pay compensation for damages including for the period following her 65th birthday and until her effective reinstatement.
The Court of Appeal accepted the employee’s claims, stating that “reaching the age of 65 cannot be considered a cause for termination of employment“.
The company appealed against this decision and the Court of Cassation rejected the appeal, confirming the judgment of the court of appeal regarding the “unsuitability of age as an automatic cause for termination of employment“.
According to the Court of cassation, this is “in accordance with the orientation expressed by this Court that the achievement of the pension requirements – determining only the possibility to terminate ad nutum the employment relationship and not its automatic termination – does not preclude the issuance of the measure of reinstatement of the employee and condemnation of the employer to pay damages under Art. 18 law no. 300/1970 in the amount corresponding to the salaries due for the period between the date of termination and the reinstatement, not justifying on the other hand, for the purpose of liquidation of the damage suffered by the employee, any prognostic judgment about the term in which, in relation to the achievement of that retirement age, the relationship would still be interrupted, even in the absence of the unlawful termination“.
The Supreme Court continues: “The reference made by the plaintiff to the impossibility of reinstatement due to cessation of business activity is irrelevant, given that the latter implies a de facto impossibility and not a legal one, such as that which is intended to result from the 65th birthday“.