In declaring illegitimate the expulsion measure ordered to some workers, as part of a procedure of collective dismissal, the Court of Appeals of Turin, with judgement 316/2019, has declared that the employment relationships are terminated and sentenced the employer company to pay compensation pursuant to art. 3, paragraph 1, of Legislative Decree no. 23/2015. The Court used the criteria set out in Article 8 of Law No 604/1966 to determine the compensation indemnity, namely the length of service (which remains the first criterion of reference), the number of employees, the size of the economic activity and the conditions of the parties.
Facts of the case
In this specific case, some workers hired in November 2015 – following the takeover by the employer company of the contract under which they had already worked – challenged in court the dismissal ordered at the end of the proceedings pursuant to Law 223/1991, requesting payment of the indemnity pursuant to Articles. 10, 3 and 7 of Legislative Decree no. 23/2015
The Court, having determined that the collective dismissal had been unlawfully carried out, declared that the relationships had been terminated and, consequently, ordered the company to pay compensation equal to 24 months’ salary.
Since the ruling occurred before the judgement of the Constitutional Court no. 194/2018, this indemnity was calculated automatically on the basis of the entire length of service of the workers, pursuant to art. 7 of Legislative Decree 23/2015, also taking into account the period of work performed in the contracted activity.
The unsuccessful company appealed against the decision of first instance, arguing, on the one hand, that the procedure had been properly carried out and, on the other hand, that Article 7 of the Code had been unlawfully applied to the present case.
The decision of the Court of Appeals
The Court of Appeals, in rejecting the appeal brought by the company, confirmed:
- the belated communication of the selection criteria referred to in Article 4 paragraph 9 of Law No 223/91, and
- the correct determination of the length of service by the Court, since account must be taken for the calculation of the indemnity for the entire period during which a worker was involved in the contracted activity.
With regard to the latter point, the Court pointed out that according to Article 10 of Legislative Decree 23/2015, “in the event of collective dismissal pursuant to Articles 4 and 24 of Law No. 223 of 23 July 1991, ordered without observing the written form, the sanctioning regime referred to in Article 2 of this decree shall apply. In the event of violation of the procedures referred to in Article 4, paragraph 12, or of the selection criteria referred to in Article 5, paragraph 1, of Law No 223 of 1991, the regime referred to in Article 3, paragraph 1, shall apply“.
It follows that, if the collective dismissal procedure is flawed pursuant to Article 4, paragraph 12, of Law No 223/1991, as in this case, in application of Article 3, paragraph 1, of Legislative Decree 23/2015, the judge “declares the employment relationship terminated at the date of dismissal and orders the employer to pay an indemnity not subject to social security contributions of an amount equal to two months’ salary of the last salary of reference for the calculation of the severance pay for each year of service, in any case not less than four and not more than twenty-four months’ salary“.
Therefore, according to the Court of Appeals, there is no reason to believe that for the calculation of the indemnity it is not necessary to take into account the seniority accrued in the contracted activity, invoked by the Court in application of art. 7 of Legislative Decree no. 23/2015
In particular, the latter provision provides that: “For the purposes of calculating the indemnities and amount referred to in Article 3, paragraph 1), Article 4 and Article 6, the length of service of a worker who becomes an employee of the company taking over the contract is calculated by taking account the entire period during which the worker was employed in the contracted activity”.
Therefore, it is clear that, in the event of a turnover of companies in contracts, the legislature has clearly provided that in the case of application of the regime provided under Art. 3, paragraph 1 (without any possibility of distinguishing between individual and collective dismissal), the calculation of the compensation is not commensurate only with the length of service at the last company that ordered the dismissal, but must instead take into account the entire period during which the worker was employed in the contracted activity.
Moreover, according to the Court of Appeals, the question of the quantification of the indemnity can only be resolved in light of judgement 194/2018 of the Council, which declared constitutionally illegitimate the aforementioned art. 3, paragraph 1, of Legislative Decree no. 23/2015
On the basis of those arguments, and in application of the criteria pursuant to Article 8 of Law No 604/66, the Court of Appeal considers that the quantification made by the Court is appropriate relative to the length of service (which, in any event, remains the first criterion of reference), the number of employees employed, the size of the economic activity and the conditions of the parties.
