With Order of 23 January 2023, No 1965, the Italian Court of Cassation stated that, for the purposes of applying the collective dismissal procedure referred to in Italian Law 223/1991, the size requirement of at least 15 employees must refer to the company as a whole and not to the single production unit.
The facts of the case
In the case examined by the order in question, the worker had been fired for a justified objective reason. The Court of Catania had declared the dismissal unlawful since it was ordered without observing the procedure for collective dismissals referred to in Italian Law 223/1991.
The Court of Appeal of Catania confirmed the decision of the judge of first instance and, therefore, the reinstatement of the employee.
The order of the Court of Cassation
The judges of the Italian Court of Cassation, in confirming the lawfulness of the worker’s dismissal, pointed out that the size requirement in the collective dismissal procedure must be assessed with reference to the company as a whole and not to individual territorial business units.
According to the Italian Court of Cassation, from a literal interpretation of Article 24 of Italian Law 223/1991, under Article 12 of the Italian general provisions on the law, the legislator’s intention emerges from the fact that the term ‘undertaking’ is not to be confused with the concept of ‘production unit’ referred to in Article 18 of Italian Law 300/70.
This conclusion can also be reached on the basis of the rationale for the provisions on collective dismissal the purpose of which is both to protect the worker as an individual but also to eliminate or reduce the social impact of the measure imposed on all workers.
Therefore, given the diversity of the interests protected, Italian Law 223/1991 cannot in any way be superimposed on Article 18 of the Italian Workers’ Charter which, for the purposes of offering real protection, requires the assessment of the size requirement in the production unit of the dismissed employee.
In the light of the principles set out above, the Court rejected the company’s appeal, confirming the unlawfulness of the dismissal and, consequently, the employee’s right to reinstatement.
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