THE ARTICLE 29 OF D.LGS. N. 276 OF 2003 AND IT’S APPLICABLE PROBLEMS

With sentence no. 22728 of 4 October 2013, the Supreme Court, Employment Section ruled that the absence of joint liability for client company with regards to claims of the employee of the contracting company accuse at the end of the procurement contract.

The event concerns an employee of a contracting company, after being fired, who had not received from the employer, payment in lieu of notice and had approached the contracting company to obtain what was owed based on this title.

As a result the Court of Gela and Court of Appeal of Caltanissetta had declared not acceding to the request of the employee, establishing that the proceedings should have been taken towards the employer alone.

According to the judges of the court of appeal the conditions were not met for recognizing joint liability of the contracting companies since the contract in question had been ceased before the contractor’s employment was terminated from the contracting company. Therefore the compensation offered was not attributable to contract but instead it is related to the employer’s choice to terminate the employment relationship.

It’s interesting to mention that the plaintiff had failed to produce any evidence to prove that the termination of the employment relationship was caused since the termination of the contract and hence failing to provide proof of the relationship in question or in any case the temporary nature among termination of the employment relationship contract, the contracting firm could not be recognized as severally liable.

During the proceedings at the Court of Cassation the employee tried to argue the nature of the compensation in lieu of notice in order to invoke the application, in this case the several liability of the firms acting as defendants, namely the contracting, contractor.

The applicant’s argument was aimed at demonstrating that Article 29 of Legislative Decree no. 276 of 2003 in defining when defining the above-mentioned liability mechanism, includes compensation charges imposed on the two subjects mentioned.

In this case, the plaintiff argues that a result could not be applied as stated by the Court of Appeal according to which the contract had been ended prior to the termination of the employment relationship given that again according to the plaintiff the mechanism of several liability was composed on the existence of the contract and from the execution of work within such a contract.

According to the Supreme Court the applicant’s motivations are groundless.

For the Supreme Court, the question raised by the plaintiff’s argument that the legal status of the allowance provided for failure to notice would be such of pay and which would also be the component to bring it to the processing for which it is provided for the implementation of the mechanism of liability in solidarity, for the Court on the contrary, is insufficient to demonstrate the absence of evidence of existence of causal link among the withdrawal and the contract that it can justify enforceability of the mechanism of solidarity.

The Supreme Court has stressed that it had already been verified by the Court of Appeal that the contract had been concluded before the employment relationship was terminated with independent decision by the employer for reasons that it was not possible to relate to the contract .

According to the Court of Cassation, the payment in lieu of prior notice of the dismissal was not chargeable to the contractor given that such compensation had matured following the termination of the contract and, consequently, the claim made by the employee was not derived from work carried out under the contract, but the decision to terminate employment relationship taken by the employer as a result, however, at the end of the contract.

Finally Supreme Court has stated that there is no evidence demonstrating that the termination has been a direct consequence of the end the contract.

© are reserved by Studio GF LEGAL STP.