The Court of Cassation, in its ruling 395/2020, affirmed that the double time limit for expiry introduced by the Connected Work Law in relation to the invalidity of dismissals is applicable to managers, in the sole cases of nullity provided for by Article 18, paragraph 1, of the Workers’ Statute. On the other hand, in cases of appeal against dismissal due to “lack of justification“, as provided for and sanctioned by collective agreements, the regime of Law no. 183/2010 on expiry does not apply. 

Facts of the case

The Court of First Instance before which the case was brought, considering the objection of expiry of the judicial challenge against dismissal to be unfounded, declared the dismissal ordered by a company regarding its manager to be unlawful and ordered it to pay him a supplementary (or rather additional) indemnity, identified as fifteen months’ salary.

The losing company appealed. The District Court before which the case was brought considered that the time limit for appealing against dismissal in court, as provided by Law 604/1966 and amended by Law 92/2012, was set from the time the out-of-court appeal was sent by the manager and not from the time it was received by the employer. This is to guarantee the said manager that the risks of non-delivery would not fall within his sphere of responsibility. 

The court at second instance stated that, in the present case, the action had been brought after the time limit of 180 days following the out-of-court appeal. It was therefore to be regarded as late, with the result that no compensation was payable to the manager. 

The manager appealed to the Court of Cassation against the second instance decision, relying on two grounds which his former employer resisted.

The decision of the Court of Cassation

In appealing against the judgment at second instance, the appellant pleaded, inter alia, infringement of Article 32, paragraph 2 of Law No 183/2010 (‘Connected Work Law‘) and Article 6 of Law No 604/1966, as replaced by Article 32 paragraph 1 of the said Connected Work Law.

In his view, the invalidity of the dismissal delimits the cases in which those rules apply to managers, excluding them when they plead in court that the dismissal was unlawful and request payment of the additional indemnity.

On this point, the Court affirmed that under Article 6 of Law 604/1966, in the text prior to the new Article 32 of the Connected Work Law, the dismissal must be challenged, on pain of expiry [of the right to challenge], even out of court, within 60 days of receipt of communication thereof. That regime was unquestionably held to be inapplicable to the managers who were taking action to have employer ordered to pay the additional indemnity. This was because they were a category of service providers which was exempt from the limiting rules of individual redundancies.

The Court also recalled that until 2010 the provisions of Law 604/1966 (with the sole exception of Article 2, paragraph 4) were not applied to managers, based on the provisions of Article 10 of the same law. As a result of this exclusion, for this category there was never an obligation to appeal against the dismissal under the regime of expiry of rights provided for in Article 6, Law 604/1966. Thus, the case law was affirmed according to which the safeguards of the first law on individual dismissals were extended only to so-called pseudo-managers. 

Article 32 of the Connected Work Law has replaced Article 6 of Law 604/1966 and, while reaffirming the 60-day deadline for the out-of-court appeal against dismissal, has provided for a further 180 days for the lodging of the appeal. These provisions, the Court continues, pursuant to Article 32 paragraph 2 thereof, apply ‘also to all cases of invalidity of dismissal‘. 

Originally, according to the Court, the dismissal of the manager was protected by the prohibition of discriminatory and retaliatory dismissal, the legislation leaving the regime of employment at will as a general criterion unchanged, without prejudice to the possibility for collective bargaining to introduce a system for monitoring the reasons for individual dismissal. 

And collective bargaining, in its turn, has provided that the manager, in cases where there is no justification for the dismissal, is entitled to additional compensation, leaving the validity and effectiveness of the dismissal intact. 

Well, “once art. 32, paragraph 2, has provided for an obligation to appeal under penalty of expiry for any invalid dismissal by the employer – on the basis of principle that by its nature is independent of the legal category to which the employee belongs – it is reasonable to hold that the rule “also” regulates the case of prohibited or null and void dismissal of the manager, identical in the governance (substantive and sanctioning) to the corresponding dismissal of an employee or worker“.

According to the Court, on the other hand, the question as to the applicability of the expiry to the dismissal of the manager in cases of mere lack of justification is more problematic. 

According to the prevailing opinion, the Court reports, the old Article 6 of Law 604/1966 excluded the cases subject to particular rules, including those of dismissals intimated to managers. And the Connected Work Law has not provided for any extension to managers of instances the nullity of the dismissal. The extension took place only with the provision of art. 18, paragraph 1 of the Workers’ Statute (as amended by art. 42 of Law 92/2012). 

Therefore, according to the Court of Cassation, if the term “invalidity” is given the broad meaning of unlawfulness, the new rules become applicable to the appeal against any dismissal. If, on the contrary, the specific meaning is attributed to it, then the rule operates only when the defect can lead to the “demolition” of the deal and its effects. And, in the Court’s view, the expression must be understood in a restrictive sense in relation to the inability of a private act to produce effects if it is contrary to a rule.

In conclusion, the concept of invalidity cannot be taken to include the hypothesis of lack of justification of a contractual source which results in the protection of the additional indemnity being merely compensatory. This is connected to a valid deed which affects an employment relationship in terms of dissolution. In other words, the scope of objective applicability provided for by art. 32 of the Connected Work Law can only refer to cases of invalidity in the strict sense of the term.