Court of Cassation 9639/2022
The commencement of the dismissal procedure with the notice to the DTL plays a prodromal role with respect to the subsequent implementation of the dismissal following the unsuccessful completion of the conciliation procedure: nevertheless, the overall assessment of the attitude of the parties and in particular the same literal interpretation of the content of the notice may lead to different conclusions to the extent of suggesting the existence of a termination intention expressed ab origine and with an immediate effect. Thus, the Court of Cassation, in its order no. 9639 of 24 March 2022, overturns the judgment of the Court of Merit which had held that the employee was precluded from challenging the dismissal. In the case in question, the company started the dismissal procedure with a communication pursuant to Article 7 of Law 604/66 to the Territorial Labour Office containing an indication of its intention to dismiss the employee for justified objective reasons, with a simultaneous indication of the reasons. The employee challenged this notice by registered letter with acknowledgement of receipt. Since the attempt at conciliation had failed, the company proceeded to notify the dismissal with retroactive effect, in accordance with the provisions of Article 7 of Law no. 604/66, from the day of the notification of the start of the procedure. The employee did not proceed to challenge the notice of dismissal as he had challenged the first notice and considered that it was in itself sufficient to give notice of the dismissal. The company, in fact, notes the Supreme Court with the notice of dismissal at the end of the procedure «intended to reiterate its intention to terminate the relationship stating literally: “Hereby, having ended on 10 December 2014, with the failure to agree, the procedure under Article. 7, Law 606/1966 as amended by art. 1, para. 40 of Law 92/2012, initiated with the note of 6/11/2014, we confirm the dismissal given to her with the same note, which is intended to be reproduced in full herein, also with regard to the “justifications of the termination, with effect from the date of sending the note of 5/11/2014, charging the intervening period to notice”». The Court of Cassation concluded that «in the present case, a clear reading of the content of the first and subsequent communications leads to the conclusion that the first communication already had a decisive effect and that the appellant's challenge was therefore correct to the extent that, hypothetically, a subsequent challenge could have been considered late, precisely in the light of the intention so clearly expressed from the outset». .