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26.032021

Court of Rome: applicability of dismissal prohibition to executives

The Court of Rome, in its 26 February 2021 order, stated that the prohibition of dismissal on financial grounds, introduced by the emergency legislation, applies to executives.

Facts of the case

The facts of the case concern a worker, classified as an executive under the National Collective Agreement for Executives in the Tertiary Sector, who was dismissed on 23 July 2020 for justified objective reasons due to a company reorganisation resulting from a drop in business caused by the Covid-19 health emergency.

The Executive challenged the dismissal invoking the violation of art. 46 of Decree Law 18/2020, converted into Law 27/2020, and art. 81 of Decree Law 34/2020, converted into Law 77/2020, which prevented the dismissal for justified objective reasons under art. 3 of Law 604/1966, as of 23 February 2020.

The Court’s decision

In upholding the Executive’s appeal, The Court of Rome stated that the reason behind prohibiting dismissals under the emergency legislation was for “public order” and “social solidarity.” It consists of “temporarily preventing the pandemic’s economic consequences from resulting in the loss of jobs”, thus preventing the damage caused by the pandemic from being borne by workers. The protection need was “common to executives who were more exposed to that risk given the greater flexibility of their contractual-collective arrangements for protection against arbitrary dismissal (‘justifiability’) than those laid down by Art. 3 of Law No. 604/66.”

According to the judge, extending this prohibition was based primarily on the principle of “no unequal treatment”: excluding executives from the emergency protection introduced by legislation during the pandemic would be unreasonable as in open contrast with Article 3 of the Constitution according to which “all citizens have equal social dignity and are equal before the law.”

The judge based their ruling on the concept of “justified objective reason” under Art. 3 of Law No. 604/66, which, in their opinion, must be understood as including the notion of “objective justifiability” (related to executives), which “substantially shares its nature” with the dismissal for a justified objective reason.  According to the Court, that makes it possible to consider that the reference made by the legislation on dismissal prohibition in Art. 3 of Law No. 604/66 “is intended to identify the nature of the impassible reason for termination, and not to delimit the subjective scope of application of the prohibition.”

On these grounds, the Court of Rome declared the Executive’s dismissal null and void, ordering

  • his reinstatement,
  • compensation for damages equal to the last full salary earned by the executive from the date of dismissal to the date of reinstatement, plus revaluation and accrued statutory interest;
  • the payment of due social security and welfare contributions to the relevant institutions.

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The order concluded that the dismissal prohibition rules for justified objective reasons introduced by the legislator during the Covid-19 health emergency applied to executives even if they do not fall within the scope of application of Law 604/66 referred to by the emergency legislation.