Contribution by attorneys Niccolò Medica and Giovanni Torielli published in N&T Plus Diritto – Il Sole 24ORE.
With judgment no. 9800 of March 25, 2022, the Court of Cassation conducts a careful examination of the requirements for the legitimacy of communication addressed to workers in the event of collective dismissal, pursuant to art. 4, paragraph 9, of Law no. 223/1991, as well as the consequences arising from the incompleteness of such communication.
In particular, the Supreme Court, in proceedings concerning the disputed legitimacy of a collective dismissal in light of a communication deemed incomplete and generic by the workers to whom the communication was addressed, emphasizes the importance of the discipline established by Law no. 223/1991 regarding collective dismissals, as it is aimed at guaranteeing not only to trade union associations the right to negotiate the criteria for selecting workers to be dismissed, but also to workers potentially affected by the dismissal the ability to identify in advance the selection criteria and to verify the consistency between said criteria and their concrete application by the employer.
According to the Court of Cassation, the communication referred to in art. 4, paragraph 9, of Law no. 223/1991 must account in a precise and detailed manner for the criteria, agreed upon with trade union organizations, taken into consideration by the employer to identify the workers to be dismissed, as well as the factual premises on the basis of which such criteria were applied in the specific case, since “a generic indication of the criteria for workers to be dismissed, in particular regarding data relating to family circumstances and the concrete translation, for each worker, of the scores connected – in the abstract – to the selected criteria (seniority, technical-productive and organizational requirements, family circumstances), prevents any verification of consistency between said criteria and their concrete application, offering no comparative parameter with respect to the position of other workers suitable to exclude the existence of unjustified more favorable treatment“.
Therefore, concludes the Supreme Court, the failure to indicate in the communication sent by the employer to the worker the selection criteria adopted, as well as, inter alia, the data concerning the family circumstances of the workers and the list of workers selected based on the concrete score attributed to them, determines the illegitimacy of the dismissal procedure given the impossibility for the interested worker to challenge the choice made by the employer (and, consequently and possibly, to contest the dismissal served upon him), with the consequent annulment of the dismissal itself and condemnation to reinstatement of the worker in his position and to the payment in his favor of a compensatory indemnity not exceeding twelve months of the last overall remuneration actually received (pursuant to the amended art. 18, paragraph 4, of Law no. 300/1970, namely the so-called Workers’ Statute).
