Court of Cassation 26246/2022
The open-ended employment relationship, as edited by Law No. 92 of 2012 and Legislative Decree No. 23 of 2015, lacking the prerequisites of certain predetermination of the cases of termination and their adequate protections, is not assisted by a regime of stability. Therefore, for all those rights that are not prescribed at the time of the entry into force of Law No. 92 of 2012, the limitation period runs, pursuant to the combined provisions of Articles 2948, No. 4 and 2935 Civil Code, from the termination of the employment relationship.
Thus the Supreme Court in its ruling No. 26246 of September 6, 2022 in reforming the decision of the Court of Merit.
According to the Supreme Court's decision, therefore, whatever the sanctions regime applicable to the employment relationship, the statute of limitations for employment claims does not run during the constancy of the relationship but only from its termination.
To reach this conclusion, the ruling under review retraces the decisions of the Constitutional Court (rulings No. 63/1966, No. 143/1969 and No. 174/1972) that had led to the determination of a dual regime depending on whether the relationship was stable or not.
And so the statute of limitations did not run in constancy of the relationship for those workers not guaranteed by stability, because of the particular psychological situation (so-called "metus") in which the worker finds himself and which could have led him not to exercise his rights for fear of being fired.
For others, and thus essentially when falling under Article 18 of Law 300/1970, the stability of the employment relationship excluded, on the other hand, that the worker was in a psychological condition of weakness and the statute of limitations ran even during the relationship.
Senonché, as stated in the judgment under review, the new sanctions regime for dismissals as modulated by Law No. 92 of 2012 and Legislative Decree No. 23 of 2015, no longer offers these guarantees of stability, as "beyond the exceptional or non-exceptional nature of reinstatement protection, it is not seriously disputable that it, compared to indemnity protection and all the more so as a result of Articles 3 and 4 of Legislative Decree 23/2015, now has a recessive character. Nor has this regulatory framework qualitatively changed as a result of the recent pronouncements of the Constitutional Court (...). Indeed, these pronouncements have certainly extended the hypotheses in which reinstatement can be ordered, but they have not made the latter the ordinary form of protection "against all unlawful forms of termination."
Consequently, for all private employment relationships since 2012, the statute of limitations begins to run only from the termination of the employment relationship, while in constancy of the relationship it runs only in the context of public employment, where the relationship still enjoys the necessary stability.