In the context of the Fornero labour proceeding, the exception to the statute of limitations to challenge a dismissal can be submitted even only during the objection phase and not in the previous challenge one. With its judgement no. 25046/2015, the Civil Supreme Court upheld the decision of the Court of Appeal of Reggio Calabria, which had reformed the judgment by which the Court of Reggio Calabria, at the outcome of the objection phase provided for by article 1, paragraph 41 of Law no. 92/2012, had ascertained the unlawfulness of a dismissal for objective justified reason and sentenced the employer to reinstate the employee and to pay for damages based on article 18 of the workers’ statute. Specifically, the Court of Reggio Calabria – during the objection to the decree as foreseen by the Fornero Act – rejected the appeal of the employer and, specifically the exception to the statute of limitations to challenge the termination as established by article 6 of Law no. 604/1966. According to the judge, the exception was to be considered late, for not having been submitted in the previous challenge phase of the dismissal, and groundless. On the point, the Court established that the worker, following the extension of the notice period served by the company, had not entered the statute of limitations on the dismissal challenge, since the reference day for calculating the statute of limitations had been brought forward and that, in any case, such extension, considered as a tacit revocation, had made the dismissal non-existent.
The employer filed a claim before the Court of Appeal of Reggio Calabria which established that the exception to the statute of limitations raised by the employer, even if only submitted during the objection, was admissible since it was not late. Moreover, under another and different profile, the same Court ruled that the exception was also grounded, since the extension of the notice period, on one hand, could not affect the statute of limitations for challenging the dismissal, and on the other could not be compared to a tacit revocation of the termination.
The employee submitted an appeal before the Civil Supreme Court, claiming for the violation and false application of article 1, paragraph 48 et seqq. of the Law no. 92/2012, article 2969 of the Civil Code, as well as article 115 of the Code of Civil Procedure, due to the Court deeming admissible and grounded the exception to the statute of limitation for challenging his dismissal raised by the employer. According to the claimant, the exception was late, since it was submitted in the objection phase and not in the judicial challenge phase of the dismissal.
The Supreme Court found this reason of appeal groundless and established that the objection – as part of the same degree of justice of the judicial challenge phase of the dismissal and in relation to the prosecution of the latter, may concern new subjective and objective profiles, including exception in the strict sense, such as the statute of limitations, not raised by the company during the summary phase.
Based on this, according to the Court, the exception raised by the employer could not be considered as a petition to review the previous ruling, as it is not suitable for introducing new issues in the dispute.
Source:
