Employee fired twice, the unexpected yes from the Supreme Court

With sentence no. 17247/2016 filed on 23 August, the Supreme Court highlighted the absence of reasons preventing the same employee from being dismissed twice and for different reasons.

In this case, the appellant worker was fired for the first time for disciplinary reasons and subsequently for exceeding the sector period.

The Supreme Court's decision would only appear surprising, but in reality it made a balanced assessment of the substantive reality and the procedural reality which at first sight were opposed.

The Court first specifies that, in the case of an appeal against a dismissal referred to in art. 18 of law no. 300/1970 (implemented in violation of the prohibitions on dismissal), established after 28 June 2012, only one proceeding characterized by a particular specialty is envisaged (so-called Fornero procedure), which excludes the possibility of applying the procedural rules referred to in the articles 414 c.p.c. et seq. since not specifically referred to.

With an appeal to the Court of Cassation, the former worker deduced the ineffectiveness of the first dismissal as a result of a second dismissal ordered after the one in question, thus arguing that the subsequent further withdrawal of the employer would have led to the cessation of the matter of dispute. inherent to the first dismissal.

The Supreme Court, associating itself with previous guidelines, establishes that dismissals for different reasons represent respectively autonomous cases, and in fact the second dismissal for just cause will be able to validly explain its effects where "the previous one is considered invalid or ineffective".

The Court reaches this conclusion by postulating that, even if the annulment of the dismissal produces ex tunc effects of a constitutive nature (e.g. reinstatement in the workplace, provision of an indemnity equal to the salary that the worker should have received, payment of social security contributions for the period between dismissal and reinstatement), from a formal point of view the working relationship has never been interrupted. It is therefore the permanence and continuity of the relationship that allows the imposition of a second dismissal, "although clearly intended to operate only in the event of cancellation of the previous one".

Milano, August 25th 2016.

Avv. Giovanni Babino