Italy: The Sixty-Day Term to Challenge Dismissal Under Constitutional Review

The United Sections of the Supreme Court, with interlocutory decision no. 23874 of 5 September 2024, requested the intervention of the Constitutional Court on the legitimacy of Article 6, Law 604/1966, which provides that “the dismissal must be challenged under penalty of forfeiture within sixty days from the receipt of its written communication […]”. The constitutional review refers to the part where the forfeiture term runs “from the receipt of the act rather than from the date of cessation of the state of incapacity,” even in cases of blameless natural incapacity of the dismissed employee.

The case, in fact, is related to an employee dismissed for prolonged unjustified absence who challenged her dismissal beyond the term of sixty days referred to in the aforementioned art. 6, Law 604/1966, claiming—and having proven in court—that she had been in conditions of temporary natural incapacity that had prevented her from having effective knowledge of the content of the document and, consequently, from being able to challenge the dismissal received.

The Court of Appeal of Palermo, hearing the appeal against the first instance ruling, that ascertained the lateness in challenging the dismissal, had also excluded that the forfeiture could be prevented or suspended by reason of the natural incapacity of the dismissed employee.

The Labour Section of the Supreme Court, for its part, first recalled its consolidated orientation contrary to assigning importance to the subjective conditions of those who receive the act for the purposes of overcoming the presumption of knowledge. Then, acknowledged some more recent rulings of a different opinion and referred the question to the United Sections.

The focus is on the interpretation consistently provided of Article 1335 of the Italian Civil Code. According to which, what is relevant is not having knowledge in the strict sense, but the possibility to know the act, which is obtained with the delivery of the act to the addressee’s domicile from where the knowledge is inferred. It is also highlighted that in the interpretation, for other purposes, of the aforementioned provision, the United Sections themselves have always given importance to the need to ensure certainty in legal situations, a need that is certainly known in employment relationships. In this context, the short term of forfeiture for challenging dismissal “expresses the need to reconcile the employee’s right to the elimination of the consequences of the employer’s illegitimate termination with the employer’s interest in the continuity and stability of the management of the company.”

The constitutional scrutiny requested has as its objective precisely on the verification that “the balancing of constitutionally relevant interests has not been achieved in such a way as to determine the sacrifice or compression of one of them to an excessive extent and therefore incompatible with the constitutional provision.” It is in light of the aforementioned principles that the United Sections doubt the constitutional legitimacy of Article 6, Law no. 604/1966, deferring its evaluation to the Constitutional Court.

Key Action Points for Human Resources and In-House Counsel

Practical Points

• The United Sections of the Supreme Court wonder if Article 6, Law 604/1966 is constitutionally compliant in the part where the sixty-day forfeiture term for challenging the dismissal runs “from the receipt of the act rather than from the date of cessation of the state of incapacity,” even in cases of blameless natural incapacity of the dismissed employee.
• The matter is constitutionally relevant because, first, the United Sections themselves have always given importance to the need to ensure certainty in legal situations, expressed in the relevance assigned to the knowability of the dismissal act and the short term to challenge it. Second, this should not determine the disproportionate sacrifice or compression of constitutionally protected interests.