The Court of Cassation, under ruling no. 26029 dated 15 October 2019, clarified that, in the context of a collective procedure for reducing staff numbers,
- the dismissal of a mandatorily employed worker shall be considered unlawful if, at the time of the termination of the employment contract, the number of remaining mandatorily employed workers is lower than the special reserve and
- that the consequences of the annulment the dismissal must be traced back to those that can be activated in the event of an unlawful dismissal found to be in breach of the selection criteria.
Facts of the case
An employee hired pursuant to the mandatory placement legislation had judicially appealed the dismissal sent to him in the context of a collective procedure. The worker had based his appeal on the assumption that, with his dismissal, the employer had breached the so-called special reserve required by law. The worker’s appeal was upheld at first and second instance, ordering the company to reinstate him in his post and to pay him compensation equal to 12 months’ salary of the last total de facto remuneration. The unsuccessful company appealed to the Court of Cassation against the ruling.
The decision of the Court of Cassation
The Court of Cassation, in rejecting the appeal of the employer company, preliminarily observed that, in this case, Article 10, paragraph 4, of Law 68/199 applies. According to said rule, dismissal on the ground of reduction in staff numbers or on justified objective grounds in respect of a mandatorily employed worker may be annulled if the number of remaining mandatorily employed workers is less than the special reserve.
The rationale of the rule is to avoid that, in the event of individual or collective dismissals for financial reasons, the worker can exceed the limits imposed on the percentage presence in his company of staff belonging to protected categories, originally hired in accordance with a legal obligation.
In this context, the Court of Cassation pointed out that the findings of the courts of first instance could not be re-examined in the context of legality, but considered them sufficient to support the decision. The courts of first instance had, in fact, agreed on the undisputed existence, in the company, of the requirements for recruitment pursuant to the legislation on compulsory placement and that, with the dismissal of the worker, the special reserve had been breached.
That said, in the opinion of the Court of Cassation, the protection applicable to the worker is attributable to theoretical case of annulment of the dismissal due to breach of the selection criteria, which exists “when the selection criteria are, for example, illegitimate, given that they are in breach of the law, or unlawfully applied, as they are implemented in contravention of legal or collective provisions” (Cassation no. 12095/2016). Therefore, in the case in question, paragraph 3 of Article 5 of Law 223/1991 applies, according to which “if the dismissal is ordered without observing the written form, the sanctioning regime referred to in Article 18, first paragraph, of Law 300 of 20 May 1970 and subsequent amendments, applies. In the event of a breach of the procedures referred to in Article 4, paragraph 12, the rules referred to in the third sentence of the seventh paragraph of aforementioned Article 18 shall apply. In the event of a breach of the selection criteria provided for by paragraph 1, the scheme referred to in the fourth paragraph of Article 18 shall apply.
In fact, the decision of the employer cannot be considered legitimate if, in breach of a legal provision, it includes, amongst its dismissals, a mandatorily employed worker, thus exceeding the limit of the special reserve. This is because, whilst, on the one hand, the legitimate interest of the entrepreneur in reducing the workforce in order to cope with a financial crisis must be taken into account, on the other hand, the interest of the mandatorily employed worker in keeping his job must also be taken into account.
According to the Court of Cassation, this conclusion appears to be in line with a rationale of the regulation aimed at ensuring compliance with special reserves and the obligations of employing disabled persons, which, only a protection of a restorative nature of the employment position of the dismissed person can guarantee.
