The Labour Division of the Supreme Court of Cassation, with ruling no. 29377 dated 14 November 2018, deemed lawful, within the context of a collective dismissal – because of its objective nature – the criterion of choice represented by meeting the requirements to access the pension.
The Facts
An employee brought his case to court in order to get his dismissal declared unlawful when it was ordered as the result of a collective dismissal initiated by its former employer company. The Court of Appeals having local jurisdiction, during the proceedings, confirmed the ruling of the Judge of first instance.
In particular, the district Court declared non-discriminatory the criterion used for the selection of personnel deemed in excess, represented by reaching the requirements to access the pension, brought forth by the employee.
According to the Court of Appeals, even the procedural breach claimed with reference to the violation of the obligation to specify the methods applied for the selection criterion adopted could not be accepted. This due to (i) the objective nature of the criterion, which excluded the discretionary approach in the choice of the employer and (ii) the unnecessary comparison of the employees identified with those lacking the specified requirements, in the opinion of the Court, the list of names of employees dismissed was sufficient as attached to the notification as per article 4, paragraph 9 of Law 223/1991.
In addition, the judges in charge deemed impossible to accept the claims contesting the existence of the conditions to initiate the proceedings, since the ruling of the court having jurisdiction would have had to focus only on meeting the procedural rules.
The employee filed an appeal at the Court of Cassation against said decision. The employee claimed, first of all, a breach of article 15 of Law 300/1970 regarding the principle of non-discrimination as well as the missing, insufficient and contrasting reason regarding a definitive fact, that is the choice of the employee to be dismissed. According to the employee, from a review of the documentation attached to the procedure and from the official communications submitted, it was not possible to establish in any way the methods used for applying the selection criterion.
The ruling of the Court
Called upon to rule on the issue, the Court of Cassation rejected in full the appeal of the employee.
With reference to the verification of the prerequisites to initiate the procedure, the Court noted that it is by now consolidated in case law the trend according to which Law 223/1991 – that establishes in articles 4 and 5 the accurate, full and regulated procedure of the employer’s provision – introduced a significant innovative element. Said element consists in moving from a jurisdictional oversight, as exercised ex post in the previous regulations, to an oversight of the entrepreneurial initiative being assigned ex ante to the role of the unions. Therefore, according to the Court, the verification of meeting the conditions for the initiation of the procedure was the responsibility of the unions.
Furthermore, the Court specified that the discrimination claim was unfounded regarding the criterion related to obtaining, within the mobility time period, of the requirements to access the pension.
Regarding instead the completeness of the notification imposed by Law 223/1991, the Court of Cassation stated that when said criteria is the only one, it is sufficient to notify the list of dismissed employees and the criterion of choice applied, that is meeting the requirements to access the old age or seniority pension. Therefore, according to the Court of Cassation, the objective nature of the criterion makes fully unnecessary the comparison with the employees lacking said requirement.
Moreover, the Court also specified that among the various employees used as reference, the petitioner was the one with greater employment seniority as well as being the one meeting the requirements to access the pension.
Conclusions
In the end, according to the Court of Cassation, there is no doubt regarding the legitimacy of the criteria of choice adopted.
The Court based its ruling on the consolidated case law trend according to which “the negotiable identification of the criteria of choice of the employees to be dismissed (that translates into a union agreement that can be signed by the majority of employees directly or through their representing unions, without having unanimous voting) meets – as highlighted by ruling no. 268 dated 22 June 1994, of the Constitutional Court – a regulatory function delegated by the law and, therefore, must meet not only the principle of non discrimination, as per art. 15 of Law 300 dated 1970, but also the rationality principle, according to which the criteria agreed upon must have the characteristics of objectivity and generality and be consistent with the purpose of employees’ mobility: meeting these criteria excludes the possibility of claiming discrimination” (see Cassation, Labour Division, Judgement no. 2694 dated 05/02/2018).
And proving the failure to meet the objective criteria falls under the responsibility of the employee while the employer has the responsibility of attaching the selection criteria and prove their full application towards the dismissed employees.