{"id":13400,"date":"2024-12-16T16:52:29","date_gmt":"2024-12-16T15:52:29","guid":{"rendered":"https:\/\/www.zambellipartners.com\/?p=13400"},"modified":"2024-12-16T16:52:29","modified_gmt":"2024-12-16T15:52:29","slug":"the-termination-by-the-transferee-is-legitimate-when-based-on-the-dismissal-previously-served-by-the-transferor","status":"publish","type":"post","link":"https:\/\/www.zambellipartners.com\/en\/the-termination-by-the-transferee-is-legitimate-when-based-on-the-dismissal-previously-served-by-the-transferor\/","title":{"rendered":"THE TERMINATION BY THE TRANSFEREE IS LEGITIMATE WHEN BASED ON THE DISMISSAL PREVIOUSLY SERVED BY THE TRANSFEROR"},"content":{"rendered":"

The new article by Angelo Zambelli is published on L&E Global website<\/strong><\/h2>\n

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After the individual transfer of the employment contract, it is legitimate for the new employer to terminate the employee who has already received a dismissal by the transferor that was declared lawfully served in the second instance.<\/p>\n

The Supreme Court, with order no. 28406 of 5 November 2024, decided on the case involving an employee dismissed in 2012 for disciplinary reasons, who was reinstated following the ruling of the Court of Lecce in 2018 annulling the dismissal. After the employer appealed this decision, the employment contract was transferred to another company through an individual contract transfer pursuant to Article 1406 of the Italian Civil Code. In 2019, the Court of Appeal, reforming the first instance ruling, declared the dismissal legitimate and, by virtue of this, the new employer communicated the definitive termination of the relationship. In the dispute following this latest communication, the Supreme Court rejected the employee\u2019s appeal, confirming the prior decisions on the lawfulness of the transferee\u2019s actions.<\/p>\n

First, both the request to consider the communication invalid and the request to suspend the proceedings \u2013 proposed for the first time to the Supreme Court \u2013 were deemed inadmissible since \u201cthe exception according to which the Court could not recognize the effectiveness of the dismissal before the final judgment is unfounded; given that there is no need for the intervention of the final judgment to attribute resolutive effectiveness to a dismissal recognized as legitimate at the appeal stage since the relevant judgment is immediately enforceable.<\/em>\u201d The Court emphasizes that, pursuant to Article 111 of the Code of Civil Procedure, \u201cthe substitution effect (\u2026) was not precluded by the failure of the transferee company to intervene in the judgment challenging the dismissal<\/em>\u201d because the successor, the transferee in this case, is legally bound by the effects of the judgments between the original parties which are immediately applicable.<\/p>\n

The Court then clarifies that a comprehensive transfer of active and passive legal situations took place, \u201cincluding the effectiveness of a dismissal already given by the transferor and still under judicial scrutiny.<\/em>\u201d The missing reference to the dismissal in the transfer agreement is irrelevant because its effectiveness was in any case transferred to the new employer \u201csince, given the breadth of the regulatory provision of Article 1406 of the Civil Code, the substitution of a third party for one of the parties to the relationship assumes general scope (\u2026) without the need for specific or prior identification.<\/em>\u201d In conclusion, the decision in question, confirming the autonomous and immediate effects of the contract transfer pursuant to Article 1406 of the Civil Code, that include those deriving from a favourable decision obtained by the transferor, assumes particular relevance in terms of legal certainty, favouring greater stability in the circulation of markets and in corporate transactions.<\/p>\n

Key Action Points for Human Resources and In-House Counsel<\/p>\n

Practical Points<\/strong><\/p>\n