Thanks to Juri Stani Pascarella for collaborating on this article
The Court of Cassation ruled that in cases of a complete lack of motivation for the dismissal, this amounts not merely to a formal defect, but to a substantive lack of justification, warranting the reinstatement remedy[1].
1) Background
The litigation concerned a professional insurance adjuster and an insurance company, following a termination deemed to be a mere withdrawal from a coordinated and continuous collaboration (co.co.co). The Court of Appeal of Florence had previously ruled in favor of the worker, requalifying the relationship as subordinate employment pursuant to Article 69 of the Legislative Decree no. 276/2003, due to the absence of a specific project. The Court of Appeal also held the dismissal ineffective under Article 18 (6) of the Workers’ Statute and awarded the employee 12 months’ salary as compensation.
The insurance company challenged the decision, arguing that the presumption under Article 69 was inapplicable given the worker’s VAT registration and professional listing in the official role of insurance adjusters, which, under Article 69-bis of the Legislative Decree no. 276/2003, excludes certain professionals from this presumption.
2) Court of Cassation decision
The Court of Cassation rejected the appeal, finding that while the presumption was indeed inapplicable, the Court of Appeal of Florence had conducted a factual assessment confirming the elements of coordinated and continuous collaboration, thus justifying the conversion of the contractual relationship into full employment.
Crucially, the Court of Cassation upheld the worker’s cross-appeal, which contested the application of Article 18 (6) that entitled the worker a mere indemnity protection for dismissal lacking written motivation. The Supreme Court held that the total absence of motivation amounts not merely to a formal defect, but to a substantive lack of any reason for dismissal. Therefore, according to the Court of Cassation, such cases fall under the scope of Article 18 (4) of the Workers’ Statute, which provides for reinstatement along with a maximum indemnity equivalent to 12 months’ salary.
3) Conclusion
This ruling shows the necessity for employers to provide clear and specific justifications for termination. A mere absence of motivation cannot benefit from the more lenient indemnity regime of Article 18 (6), as this would unjustifiably reward non-compliance with the statutory requirement of a reasoned dismissal and could potentially incentivize the circumvention of employment protections.
[1] As provided under Article 18(4) of Law no. 300/1970 (“Workers Statute”)
