Our two lawyers commented on a judgement of the Court of Cassation that will particularly affect future case law.
The Court of Cassation in its judgment no. 27334/2022 states that dismissal is to be considered null and void, where the allowed sickness leave has not elapsed, regardless of the number of employees in the company. If the employer is a small company, however, the so-called attenuated reintegration protection applies, pursuant to Article 18(7) of the Workers’ Statute.
The commentary by Evangelista Basile and Rosibetti Rubino on this ruling, which overturned the first two degrees of judgement, highlights its importance from a jurisprudential point of view. Our labour lawyers analyse the grounds of the judgment, in particular the normative references that were declared applicable to the case under examination. The Court’s orientation is clear from this analysis: whether or not the 15-employee threshold is met cannot legitimise a diversification of the consequences of a null dismissal. According to the Supreme Court, this would be the only interpretation compatible with the need to ensure rationality and harmony to the system of protections in the case of dismissal.
The authors, however, note that in this case the employee had been hired before 7 March 2015, therefore the discipline of the “increased protection over the years” was not applicable. Since Legislative Decree No. 23/2015 does not provide for mitigated reintegration protection, for an employment relationship in a small company that began after 7/03/2025, the same balancing act envisaged by the Supreme Court in the judgment under comment would not be feasible.
In their conclusions the authors puts on the table a question that is still open: What, then, will be the sanction in the case of a dismissal where the allowed sickness leave has not elapsed and the employee was hired after 7 March 2015 in a small company?
The only way would seem to be nullity, but such a solution would conflict with the very reasoning of the Court of Cassation and would result in greater protection for the worker in question than for one hired before 2015 in a large company. The solution, therefore, is still to be found.
The in-depth analysis is published in issue no. 12/2022 of ‘Il giurista del lavoro’, the monthly law and labour doctrine for the management of litigation by Euroconference Editoria.
