Substitute allowance in place of the prior notice: penalties and interests

The Court of Cassation, with judgement no. 4211 filed on 21 February 2018, passed a ruling in regard to an opposition against a payment injunction. In the specific case at hand, by said injunction, INPS had demanded payment by a company of penalties and interests on the substitute allowance in place of the prior notice paid to a former employee – in the specific case at hand, a manager – long after the date of the judgement of the court of first instance. This judgement had declared the dismissal for just cause, object of the proceedings, to be invalid. The opposition filed by the employer had been upheld by the courts of first and second instance. In particular, the Court of Appeal having jurisdiction over the case, had based its belief on the assumption that (i) the welfare obligations had ceased with the dismissal; (ii) the ruling condemning to pay the substitute allowance in place of the prior notice had been challenged and (iii) pending the appeal decision, no welfare obligation towards the welfare agency can be considered arisen. The Court of Cassation entirely reversed the decision of the trial court, maintaining instead that the welfare contributions due by the employer to INPS had arisen with the judgement – which by law is provisionally enforceable – that had condemned the company to pay the substitute allowance in place of the prior notice. Therefore, in the Court of Cassation’s opinion, the delay accrued from the decision to the day of actual payment of the welfare contributions had to be evaluated for the purpose of the timeliness of the fulfilment of the welfare obligations, since the fact that opposition proceedings are pending is irrelevant.