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The Italian Supreme Court held, with its judgment no. 9073 dated 15 April 2013 that damages awarded in favor of an employee to whom the right of reinstatement applied under article 18 of Law No. 300 of 1970 (the Italian Workers’ Statute) does not preclude the possibility that the latter may request compensation further damages on account of the employer’s delay in reinstating such employee.

The case: A worker asked the Employment Court seized of the matter to order the latter’s former employer to pay compensation for the non-pecuniary and pecuniary damage suffered as a result of the failure to reinstate the plaintiff in his previous job, whereas the employer called for the rejection of the plaintiff’s action since the defendant alleged to have paid all the plaintiff’s wages pursuant to article 18 of Law 300/1970.

The solution: The Supreme Court, recalling one its previous rulings, held that since article 18 of Law No. 300 of 1970 against illegal dismissals applies, the quantification of damages in favor of the worker – in terms of the remuneration the latter should have received from the date of dismissal to the date of reinstatement – does not preclude such employee from claiming compensation for further losses consisting in those that he has suffered as a result of the employer delaying his reinstatement. The judge, in the presence of appropriate evidence (the burden of which falls on the worker) that can also be satisfied through the use of presumptive evidence may award equitable damages (Italian Supreme Court judgment no. 15915/2009; Italian Supreme Court judgment no. 26561/2007; Italian Supreme Court judgment no. 10116/2002; Italian Supreme Court judgment no. 10203/2002).

In the light of the above, damages are awarded as a result of the employer’s omission which is subsequent to his employee’s unjustified dismissal. There is, therefore, in the Supreme Court judges’ opinion, no duplication of the damages awarded to the employee.

The Court was of the opinion that such interpretation was preferable, as it seeks to avoid the situation in which an unfair dismissal can produce an even more humiliating and damaging situation for the worker, depriving him of the opportunity to re-enter the work place promptly.

Such ruling referred, however, to the old formulation of article 18 (which, in fact, provided for reinstatement, subject to certain conditions). Following the entry into force of the so-called Fornero Reform (Law 92/2012) which has essentially gotten rid of workers’ right to be reintegrated and has merely given them the right to compensation for having been unfairly dismissed.

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