Invalidity of the employer’s termination in violation of the legislation on the ban on dismissals

Prepared by Francesca Tironi and Valentina Panettella

With regard to the validity of dismissals announced during the pandemic period, it should be noted the decision no. 112/2020 of the Court of Mantua, which affirmed the invalidity of the termination of the employer in violation of the prohibition of dismissal pursuant to art. 46 of Decree Law no. 18/2020 (prohibition now extended until March 31, 2021).

This judgment, one of the first to deal with the issue, emphasizing the nature of “mandatory and public order rules” of the emergency regulations, affirms that the violation finds its epilogue in the most serious form of “pathology” contemplated by the Civil Code, the invalidity.

In the case in object, the employer had dismissed the employee for asserted objective justification, stating that he had to terminate the employment relationship due to the closure of the operative office and the cessation of the activity. However, the store in question continued to operate, as did the company’s other stores.

The Court, then, condemned the company to reinstate the employee (art. 18, para. 1, Law no. 300/1970, art. 2 Legislative Decree no. 23/2015), to pay the employee the remuneration due from the date of the dismissal until the time of reemployment and to pay her the social security and welfare contributions due, without prejudice to the employee’s right to opt for the indemnity in lieu of reinstatement.

The invalidity of dismissal in violation of the prohibition pursuant to art. 46 provides an opportunity to examine the complex matter of the validity of a transaction concerning a void act.

Despite the invalidity of the dismissal, in fact, the employee, within the sphere of his rights, is free to dispose of the right to appeal against the dismissal, making it the subject of renunciations or settlements.

The employee’s interest in the continuation of employment, as confirmed by the Court of Cassation (Cass. Civ., Sez. Lav., 19/10/2009, n. 22105), falls within the area of free disposition, and this can be deduced from the right of termination “ad nutum” available to the employee, the admissibility of consensual termination of the employment contract and the possibility of consolidation of the effects of unlawful dismissal for lack of a timely appeal.

Therefore, it seems reasonable to consider as valid the transaction concluded between the employee unlawfully dismissed and the employer, which has as its object the renouncement of the employee to reinstatement in the workplace, since it is a right available to the employer, excluded from the provision of art. 2113 Civil Code.

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Francesca Tironi

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