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19.022021

Dismissal based on financial grounds in violation of the COVID-19 prohibitions invalid

The Court of Mantua, in its ruling no. 112/2020, has declared the dismissal of an apprentice for justified objective reason invalid, because it is contrary to the COVID-19 pandemic emergency legislation.

Facts

The plaintiff was employed by a company operating in the clothing and jewellery retail sector under a professional apprenticeship contract, with “assistant salesperson” duties and classified at level VI of the Commerce National Labour Collective Agreement.

Between March to May 2020, the apprentice had been placed under a redundancy fund due to the decrease in work because of the pandemic. Following the use of social security benefits and after having been formally placed on leave for of June, the apprentice received a letter dismissing her effective from 30 June 2020 in compliance with the contractual notice period.

In support of the termination, the employer mentioned the closure of the workplace where the apprentice worked and the consequent cessation of the company’s activities.

The apprentice appealed against her dismissal for financial reasons, arguing that the company’s activities had not ceased and that the obligation to repechage had been breached. The apprentice claimed that the dismissal was invalid as it was in breach of Article 46 of Decree-Law no. 18/2020.

Dismissal prohibition as a safeguard for public order

In its ruling, the Court of Mantua noted that the general dismissal prohibition for justified objective reasons was introduced by Decree Law 18/2020 ( Cure Italy Decree) until 17 May 2020, and then extended, initially, until 17 August 2020 by Decree Law 34/2020 ( Relaunch Decree) and, subsequently, throughout 2020 by Decree Law 104/2020 ( August Decree) for employers who had not completely used the weeks of wage subsidies available at that date.

According to the Judge, this prohibition is configured as “a temporary protection of the stability of relationships to safeguard the stability of the market and the economic system and is a labour market and economic policy measure linked to public order requirements.”

Invalid dismissal

The ruling highlighted that “from the imperative and public order nature of the discipline preventing dismissals, it follows that dismissals adopted in contrast to the rule are invalid, with reinstatement under art. 18, paragraph 1, Law 300/1970 and under art. 2, Legislative Decree 23/2015”, i.e. with the reinstatement of the dismissed employee.

On these grounds, since the employer did not “prove that it had ceased operations as stated in the letter of dismissal”, the Court of Mantua declared the dismissal invalid and upheld the apprentice’s appeal, ordering the employer to reinstate her and pay her salary and contributions from the date of dismissal to the date of reinstatement.