PUBLISHED BY Arlati Ghislandi
TAG: , DISMISSAL
Collective Dismissal – Clarifications on the criteria of dependent family members
10
Aug
2018

With sentence no. 20464 of 2 August 2018, the Court of Cassation offered an interpretation of article 5 of Law no. 223 of 23 July 1991 with regard to collective dismissal. This interpretation highlights how the criteria for dependent family members should be evaluated in order to be effective.

 

As known, the aforementioned provision establishes, with reference to the selection criteria, that the workers to be dismissed must be identified in relation to the technical, production and organisational requirements of the company as a whole, and in compliance with the criteria laid down in the agreement reached with trade union representatives at the conclusion of the joint examination or, in the absence of the aforementioned agreement, in compliance with the following criteria:

a)      dependent family members;

b)      seniority;

c)       technical, production and organisational requirements.

 

With regard to the criterion referred to in letter a), the Supreme Court considered immune from censure the conviction of the trial judge who declared the unlawfulness of the dismissal of a worker as part of a collective dismissal because the employer did not take due account of the actual composition of the family unit of which it should have been aware, even in the absence of a specific communication or other documentation submitted by the worker, in view of the periods of maternity and parental leave taken by said worker.

 

The Court of Cassation specified that the criterion of ‘dependent family members’ has the main function of identifying the workers who are ‘less socially weak’ having regard to the ‘actual economic situation of the family situation of individual workers, which cannot be limited to simply verifying the number of dependents from a tax perspective.’ In fact, an interpretation of the criterion of choice, which was purely based on fiscal discipline, would certainly be reductive since it would not be suitable for identifying the actual economic needs of the family situation.

 

According to the orientation expressed by the Supreme Court, conduct based on fairness and good faith requires considering the “actual family situation of the employee (…) regardless of the worker’s express ad hoc communication’.

 

The current legislation does not require the employer to carry out investigations in this regard (for which it would not even have the necessary authoritative powers to conduct), but on the other hand, relevant circumstances of which the employer itself has become aware cannot be neglected, as in the case where the worker in question has taken a period of maternity leave or paternity leave or even parental leave.