LABOUR – The Italian Supreme Court on the dismissal by the “apparent” employer in non-genuine service contracts

Newsletter n. 91 – December 2023

LABOUR

The Italian Supreme Court on the dismissal by the “apparent” employer in non-genuine service contracts

On 22 November 2023, the Italian Supreme Court has issued an important judgement (No. 32412/2023) concerning the dismissal of a worker by the contracting company under a non-genuine service contract. In particular, the issue addressed by the Italian Supreme Court originated from the dismissal of an employee – who, in the context of a procurement contract, was working for the principal company (substantial employer) – by the logistics services company where she was formally employed (“contractor”). The employee in the first instance, on the one hand, has challenged the invalidity of the dismissal intimated to her by her formal employer and, on the other hand, has requested the establishment of the existence from the date of her employment, of a subordinate working relationship with the principal company, the recipient of her working performance. On the basis of its earlier ruling dated as of 7 November 2023 (No. 30945/2023) the Italian Supreme Court, examining the issue of the dismissal by the formal employer and its effects with respect to the determination of the substantive employment relationship, deemed that the rule provided for irregular labour supply enshrined in Section 80 bis of Decree Law No. 34 of the 19 May 2020 of authentic interpretation of Section 38 of the Legislative Decree No. 81 of the 15 June 2015, is to be considered extended  to the fictitious interposition of labour by reason of “the identity of rationale and protection“. According to the quoted rules, the dismissal served by the contractor is not to be understood as referable, as are the acts of establishment and management of the employment relationship, to the user and thus must be considered non-existent in that it comes from a party other than the actual employer. Therefore, the Court uphold the judgment on the merits, and found that the principal was the proper owner of the worker’s fictitious employment relationship with the contractor and declared that the dismissal carried out by the contractor was non-existent.